NONPRECEDENTIAL DISPOSITION
To be cited only in accordance
with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued April 2, 2014
Decided June 24, 2014
Before
FRANK H. EASTERBROOK, Circuit Judge
DANIEL A. MANION, Circuit Judge
DIANE S. SYKES, Circuit Judge
No. 13-3303
KATHERINE LEES, Appeal from the
Plaintiff-Appellant, United States District Court for the
Eastern District of Wisconsin.
v.
No. 10-C-86
CARTHAGE COLLEGE and
LEXINGTON INSURANCE COMPANY, Rudolph T. Randa,
Defendants-Appellees. Judge.
ORDER
This case is before us for the second time, so we assume familiarity with our
previous opinion. Lees v. Carthage Coll. (“Lees I”), 714 F.3d 516 (7th Cir. 2013). Katherine
Lees, a student at Carthage College, was raped in her dorm room by two men who were
never identified. She sued the school and its insurer for negligence. The school moved
for summary judgment on multiple grounds, including that there was insufficient
No. 13-3303 Page 2
evidence of causation and that Lees’s expert, Dr. Kennedy, was unreliable and failed to
establish a duty of care that the college breached. The district court excluded the
expert’s testimony and granted summary judgment because Lees had no other evidence
to establish a breach of a duty. On appeal we vacated and remanded, holding that the
expert’s testimony was admissible on one narrow issue—whether the school had a duty
to provide a “prop alarm” on the basement door. After we remanded, Carthage again
moved for summary judgment based on its alternative theories, which had never been
ruled on. The judge again granted summary judgment, this time because Lees failed to
provide sufficient evidence of causation. Lees appeals.
Lees makes a number of arguments for why the district court shouldn’t have
considered Carthage’s renewed motion for summary judgment, but none have merit.
First, Lees argues that we held in our previous decision that she had sufficient evidence
to get a trial, precluding any arguments for summary judgment based on other
insufficiencies. She refers us to the “law of the case” doctrine and its corollary, the
“mandate rule,” that an appellate-court mandate is “controlling as to matters within its
compass.” Moore v. Anderson, 222 F.3d 280, 283 (7th Cir. 2000) (internal quotation marks
omitted). She then focuses narrowly on this sentence from our prior opinion: “Because
Dr. Kennedy’s testimony is admissible in part, Lees raised a genuine factual dispute for
trial, and summary judgment for Carthage was improper.” Lees I, 714 F.3d at 518. But
the mandate rule “does not extend to issues an appellate court did not address.” Moore,
222 F.3d at 284. The district judge limited his first summary-judgment ruling to the
admissibility of Dr. Kennedy’s testimony, so the previous appeal was also limited to
that issue. Neither party discussed the alternative grounds for summary judgment
addressed in Carthage’s initial motion to the district court, so we did not rule on them.
On remand the judge had the authority to rule on Carthage’s other arguments.
Second, Lees argues that Carthage’s renewed motion for summary judgment
suffers from various procedural flaws. After remand the district judge held a
scheduling conference. Carthage made no mention of another motion for summary
judgment, so the scheduling order did not contain any deadlines for dispositive
motions. Nevertheless, Carthage filed a renewed summary-judgment motion five days
later. Lees moved to strike the motion, but the judge denied her request. Lees argues
that this refusal was an abuse of discretion because: (1) Local Rule 16(b)(1)(B) says that
parties should discuss any contemplated motions during scheduling conferences, but
Carthage did not mention a new summary-judgment motion; (2) Carthage did not
request leave to file its “unauthorized” motion, in violation of Local Rule 7(i);
(3) remand left the deadlines from the previous scheduling order in place, and since the
updated scheduling order did not have a new deadline for dispositive motions, the
No. 13-3303 Page 3
deadline had passed; and (4) there was no good reason to allow a new summary-
judgment motion.
The district judge cast all these arguments aside, noting that Federal Rule of Civil
Procedure 56(b) allows parties to file summary-judgment motions “at any time until
30 days after the close of all discovery” unless “a different time is set by local rule or the
court orders otherwise.” Lees insists that the court did “order otherwise” because the
deadline in its original scheduling order was still in place. But “district courts have
broad discretion to manage their dockets,” A. Bauer Mech., Inc. v. Joint Arbitration Bd. of
the Plumbing Contractors’ Ass’n & Chi. Journeymen Plumbers’ Local Union 130, U.A.,
562 F.3d 784, 790 (7th Cir. 2009), and there was good reason to consider the new
summary-judgment motion; namely, that the other grounds advanced by Carthage had
never been addressed. The procedural objections are meritless. The district court did
not abuse its discretion by entertaining the new summary-judgment motion.
Accordingly, we move to the substantive issue, which is whether Lees has
sufficient evidence to prove causation. We agree with the district court that she does
not, even construing all facts and inferences in her favor, as we must when reviewing a
summary-judgment ruling against her. CTL ex rel. Trebatoski v. Ashland Sch. Dist.,
743 F.3d 524, 528 (7th Cir. 2014).
Under Wisconsin’s negligence law, in order to meet the burden of production on
the issue of causation, the plaintiff “must produce some evidence that the defendant[’s]
negligence more probably than not caused plaintiff[’s] damages.” Beacon Bowl, Inc. v.
Wis. Elec. Power Co., 501 N.W.2d 788, 805 (Wis. 1993). It is not enough to produce
evidence that the defendant’s negligence could have caused the harm. Id. at 806. Since
“[p]remises-security cases … requir[e] expert testimony” to establish a breach of a duty,
Lees I, 714 F.3d at 522, and since the only breach of duty that the admissible portions of
Dr. Kennedy’s testimony would establish was the absence of a prop alarm on the
basement door, id. at 526–27, Lees needed to produce some evidence that the absence of
a prop alarm probably caused her damages. But she has no evidence that her attackers
came through the basement door. If anything, her evidence cuts against that possibility.
She testified in deposition that her attackers were fellow students, and she was attacked
at a time when all students were allowed into the dorm through the front door. For
these reasons, the district court concluded that there was insufficient evidence of
causation and granted Carthage’s motion for summary judgment.
Lees makes various arguments for why this conclusion was wrong. First, she
argues that the judge applied the wrong legal standard, referring us to Peters v. Holiday
No. 13-3303 Page 4
Inns, 278 N.W.2d 208 (Wis. 1979) (reversing summary judgment in a negligence suit
against Holiday Inn for failure to adequately protect a guest from intruders). But Lees
doesn’t explain what she thinks the causation standard in Peters is or how it applies to
her case; she simply declares summarily that “Peters is dispositive.” And in any event,
Beacon Bowl, which clearly lays out the causation standard we just described, was
decided after Peters. She also quotes Ehlinger v. Sipes, 454 N.W.2d 754 (Wis. 1990), for the
causation standard. Ehlinger held that to survive summary judgment in a medical-
malpractice claim of negligent misdiagnosis and mistreatment, a plaintiff need only
produce evidence “that proper treatment could have [rather than would have] lessened
or avoided the plaintiff’s harm,” id. at 763. But the issue here is the burden of
production on causation more generally; Beacon Bowl explicitly limited Ehlinger’s more
relaxed burden-of-production standard to the medical-malpractice context. 501 N.W.2d
at 805–07.
Lees next argues that all entrances into the dorm were negligently maintained, so
the attackers must have entered through some “negligently maintained portal.” She
claims that the front door was negligently maintained because although the door
required students to swipe their ID cards to get in, students were allowed to enter in
groups after a single swipe. She also implies that allowing nonresident students to enter
the dorm late at night was negligent, even if they were required to swipe in. The
problem with these arguments is that Lees does not have expert testimony to establish
that either of these practices breached a duty of care. We held in our last opinion that
expert testimony was required to establish duty and breach, Lees I, 714 F.3d at 522, and
we limited her expert’s testimony to the lack of a prop alarm on the basement door, id.
at 526–27. She now argues that Carthage admitted that allowing groups to enter after a
single swipe violated its own security policy, and this admission is sufficient to
establish breach of a duty. But that is directly contradicted by our holding in Lees I that
expert testimony is required to establish the duty of care in a premises-security case. Id.
at 522. She also relies on this quote from Lees I—“Perhaps th[e] analysis [of other forms
of negligence] is theoretically possible, but on the present record we find no abuse of
discretion,” id. at 526—and argues that it opens the door to expanding Dr. Kennedy’s
testimony to establish other breaches of duty. But she is misreading our opinion, which
affirmed the district court’s exclusion of all but a small portion of Dr. Kennedy’s
testimony. Therefore, Lees needed to produce evidence that her attackers more
probably than not entered through the basement door.
She has none. It’s just speculation. There is no evidence to causally connect the
lack of a prop alarm on the basement door to the attack. Accordingly, the district court
properly entered summary judgment for Carthage.
AFFIRMED.