In the
United States Court of Appeals
For the Seventh Circuit
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Nos. 03-3950 & 04-1193
LORI SCHROTT,
Plaintiff-Appellant,
v.
BRISTOL-MYERS SQUIBB CO., et al.,
Defendants-Appellees.
____________
Appeals from the United States District Court for
the Northern District of Illinois, Eastern Division.
No. 03 C 1522—Suzanne B. Conlon, Judge.
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ARGUED SEPTEMBER 23, 2004—DECIDED APRIL 13, 2005
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Before EASTERBROOK, WOOD, and EVANS, Circuit Judges.
WOOD, Circuit Judge. When Lori Schrott’s bilateral breast
augmentation surgery in 1987 failed to produce the positive
results she expected, she was understandably upset. After
receiving “Même” brand polyurethane foam-coated silicone
implants, Schrott experienced near-constant pain. Her
breasts began to harden, and she eventually lost all feeling
in both of them. In early 1989, the implant in Schrott’s
right breast broke through the capsule that was supposed
to keep it in the proper place. Although the implant did not
actually rupture, the incident left her breast with a droop-
2 Nos. 03-3950 & 04-1193
ing appearance. This prompted Schrott to have a new
implant inserted in November 1989. Schrott’s pain and
dissatisfaction remained, however, and so she had both im-
plants removed in 1993.
In 1988, before her second surgery in 1989, Schrott com-
plained to her doctors that she was suffering from head-
aches, dizziness, nausea, and memory loss. Subsequent
medical evaluations concluded that Schrott suffered from
both migraine headaches and a somatoform disorder known
as “Briquet’s Syndrome.” See STEDMAN’S MEDICAL DICTIO-
NARY 1749 (27th ed. 2000) (defining “Briquet’s Syndrome”
as “a chronic but fluctuating mental disorder, usually of
young women, characterized by frequent complaints of
physical illness involving multiple organ systems simulta-
neously.”). She may also have a condition that causes short
lapses of consciousness called “vasovasal or neurocardiogenic
syncope.” See id. at 1745 (defining “vasovasal syncope” as
“faintness or loss of consciousness due to reflex reduction in
blood pressure.”). While her doctors assured her that there
was no link between these problems and the implants,
Schrott did not believe them.
In 1993, Schrott sued the manufacturers of her implants
in the Circuit Court of Cook County (Illinois), claiming that
chemicals found in the polyurethane foam, toluene diisocya-
nate (TDI) and toluene diamine (TDA), were responsible for
her neurological ailments. She also claimed that these
chemicals were carcinogenic, and thus that she faces a sig-
nificant risk of developing cancer at some point in the future
as a result of the implants. Schrott sued for negligent failure
to warn, strict tort liability and breach of an implied war-
ranty. That case, however, is not the one before us. In 2002,
after eight years of discovery and only a few months before
trial was set to begin, Schrott attempted to add two more
claims to her case: first, one for negligent infliction of emo-
tional distress, and second, one for a violation of the Illinois
Consumer Fraud and Deceptive Business Practices Act, 815
Nos. 03-3950 & 04-1193 3
ILCS 505/12 et seq. When the state court denied this
motion, Schrott voluntarily withdrew her case.
Her retreat from litigation proved to be only a temporary
move. Soon after she abandoned the first state court action,
she filed a new case in the Circuit Court that included her
claims plus the two new ones the same court earlier had re-
jected, naming as defendants Bristol-Myers Squibb Company,
Inc., The Cooper Companies, Inc., Medical Engineering
Corporation, Aesthetech Corporation, and Natural Y
Surgical Specialties, Inc., all of whom had some part in
either manufacturing or designing the implants in question.
The defendants removed this new action to the district
court for the Northern District of Illinois, properly relying
on the diversity jurisdiction. The district court then granted
the defendants’ motion for summary judgment, finding that
Schrott’s claims were not only untimely, but failed on the
merits as well. We agree and thus affirm the district court’s
judgment.
On appeal, Schrott raises three arguments: first, that the
district court erred in its conclusion that her case was
untimely for several reasons (including the relation-back
doctrine, the discovery rule, and a continuing violation
theory); second, that the district court’s ruling with respect
to her expert witness should not have followed the frame-
work set out in Daubert v. Merrell Dow Pharmaceuticals,
Inc., 509 U.S. 579 (1993), seemingly because this was a case
based on state law and, in addition, her claim arose before
Daubert was decided; and third, that the district court should
not have imposed certain costs of the litigation on Schrott.
The second and third of these arguments require little
discussion. It is frivolous to assert that a federal court
should not have applied the federal rules governing expert
witnesses, just because the case happened to be a diversity
case and thus one governed by state substantive law. Federal
courts do, and must, apply both the Federal Rules of
4 Nos. 03-3950 & 04-1193
Evidence and other evidentiary rules derived from federal
statutes, Supreme Court decisions, or other sources of fed-
eral law, in their proceedings. See, e.g., Park v. City of
Chicago, 297 F.3d 606, 611 (7th Cir. 2002) (“The Federal
Rules of Evidence, not provisions of state law, govern the
admissibility of evidence in federal court.”); Barron v. Ford
Motor Co. of Canada Ltd., 965 F.2d 195, 198 (7th Cir. 1992)
(“Even in diversity cases the rules of evidence applied in
federal courts are the federal rules of evidence rather than
state rules . . .”). Indeed, Daubert and later Supreme Court
decisions such as General Electric Co. v. Joiner, 522 U.S.
136 (1997), and Kumho Tire Co. v. Carmichael, 526 U.S.
137 (1999), were all diversity tort cases. The fact that state
law affects relevancy determinations under Fed. R. Evid. 401
and 402, or privileges under Fed. R. Evid. 501, does not mean
that federal courts apply state evidence rules in diversity
cases under some modern version of the Conformity Act.
See Act of Sept. 29, 1789, c. 21, § 2, 1 Stat. 93; see generally
4 Wright & Miller § 1002 (3d ed. 2002). The rules of evid-
ence enacted under the authority of the Rules Enabling Act,
28 U.S.C. §§ 2072 et seq., govern unless, like the civil
procedure rules, the particular rule was not authorized
under the Act. See Hanna v. Plumer, 380 U.S. 460, 471-73
(1965).
With respect to costs, Schrott argues that the $7,560
she paid in the state court action for defense counsel’s dep-
ositions of three of her expert witnesses should have been
credited against the $6,220.41 charge for the fees of the
defense experts whom she deposed in the federal action. It
suffices to say that we see no abuse of discretion in the
court’s decisions to treat the two actions as independent ac-
tions, to decide that the federal action was not a mere con-
tinuation of the state action, and to impose the federal costs
on Schrott, consistently with Fed. R. Civ. P. 26(b)(4)(C) and
54(d)(1).
Nos. 03-3950 & 04-1193 5
We see no more merit in her arguments relating to the
timeliness of her claim. Yet there is an even more funda-
mental problem with her case: even if we were to agree that
the claim is somehow still alive, the summary judgment
record leaves no doubt that it fails on the merits. We look
separately at the three central points she is making: first,
her argument that the implants caused various forms of
neurological damage; second, that she is entitled to recover
because of her fear of developing cancer; and third, that the
defendants violated the Consumer Fraud Act. We note that
in this diversity case, the parties agree that the substantive
law of Illinois applies.
In order for Schrott to succeed on her claim against the
defendants for neurological damage, she must establish the
fact that the implants caused her injuries. See, e.g., Lewis v.
Lead Industries Ass’n, Inc., 793 N.E.2d 869, 873 (Ill. App.
2003) (“An essential element of a plaintiff’s cause of action
for any tort is that there be a proximate casual relationship
between the act or omission of the defendant and the dam-
ages which the plaintiff has suffered.”). Like virtually all
district courts, the Northern District of Illinois has struc-
tured the summary judgment process through its local rules.
See N.D. Ill. Rule 56.1. That rule requires “a statement of
material facts as to which the moving party contends there
is no genuine issue and that entitle the moving party to a
judgment as a matter of law” to accompany summary judg-
ment motions. N.D. Ill. Rule 56.1(a)(3). To avoid summary
judgment, the non-moving party must file “a response to
each numbered paragraph in the moving party’s statement,
including, in the case of any disagreement, specific references
to the affidavits, parts of the record, and other supporting
materials relied upon.” N.D. Ill. Rule 56.1(b)(3)(A). The
defendants did just what they were supposed to do, filing
their required “Statement of Undisputed Facts” in connec-
tion with their summary judgment motion. Schrott did not.
Specifically, she did not challenge ¶¶ 43, 45, and 54, which
6 Nos. 03-3950 & 04-1193
assert that there was no causative link between the im-
plants or any components of the implants and her various
neurological symptoms. The district court was entitled to
take these facts as uncontested, as the local rule provides.
See Koszola v. Bd. of Educ. of City of Chicago, 385 F.3d
1104, 1109 (7th Cir. 2004). By conceding that this essential
element of her case could not be proven, Schrott left the
court with no option but to grant the defendants’ summary
judgment motion.
Schrott fares no better on her theory based upon negli-
gent infliction of emotional distress, which is based on her
fear that she may develop cancer in the future. To succeed
on this one, she must show that the defendants owed her a
duty, that they breached this duty, and that this breach
proximately caused her injury. See Parks v. Kownacki, 737
N.E.2d 287, 296-97 (Ill. 2000). Once again, her responses to
the defendants’ Local Rule 56.1 statement conclusively
resolve the case against her. She admitted, among other
things, that “[b]reast implants do not create a potential for
a medically significant exposure to TDI, TDA or toluene,”
¶ 60, that she had “no quantifiable risk of future illness,
including Cancer,” ¶ 61, and that there was “no evidence
that [she] has had exposure to toluene from her implants, but
she has been exposed to toluene from smoking cigarettes,”
¶ 70. By effectively conceding that her fear is unfounded, she
has also demonstrated that any fear she may feel is not rea-
sonable. Her concession that the implant did not emit a
medically significant level of TDI, TDA, or toluene amounts
to an admission that it could not have created any risk of
cancer associated with toluene. That is enough to sink this
aspect of her claim.
Finally, there is Schrott’s assertion that the defendants
violated the Consumer Fraud Act. The Illinois Appellate
Court held in Adler v. William Blair & Co., 648 N.E.2d 226,
234 (Ill. App. 1995), that “as with any other tort, to sustain
a cause of action under the Consumer Fraud Act, the
Nos. 03-3950 & 04-1193 7
plaintiffs must further allege that damages were proximately
caused by the fraud.” The defendants pointed to evidence
that the package inserts for the implants disclosed the
medically relevant risks, that the medical community knew
about these risks, and that Dr. Bloch (the physician who
performed the procedures on Schrott) knew about the risks.
Schrott failed to show either that any of the stated facts
amounted to misrepresentations, or that there were material
omissions of fact. Moreover, as before, she did not show what
causal link existed between the disclosures (or omissions)
and her damages. Thus, the district court correctly found
that the defendants were entitled to summary judgment on
this aspect of the case.
None of this is to say that Schrott has not suffered from
the various medical problems she details, or that she was
satisfied with the results of her 1987 and 1989 surgeries. It
is only to say that she has no claim against these defendants.
We therefore AFFIRM the judgment of the district court.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—4-13-05