Kalis v. Colgate-Palmolive Co.

Decision Date03 November 2000
Docket NumberCOLGATE-PALMOLIVE,No. 99-3343,99-3343
Citation231 F.3d 1049
Parties(7th Cir. 2000) FANNIE B. KALIS, Plaintiff-Appellant, v.COMPANY, MILLEN TRUE VALUE HARDWARE and MILLEN HARDWARE, Defendants-Appellees
CourtU.S. Court of Appeals — Seventh Circuit

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 95 C 7673--Sidney I. Schenkier, Magistrate Judge. [Copyrighted Material Omitted] Before POSNER, RIPPLE and ROVNER, Circuit Judges.

RIPPLE, Circuit Judge.

Fannie B. Kalis brought this products liability action against Colgate-Palmolive Company ("Colgate") and other defendants1 for injuries caused by the explosion of a container of fondue fuel. Colgate moved for summary judgment on the ground that Ms. Kalis could not establish that Colgate manufactured the product that caused her injury. The district court granted Colgate's motion, and Ms. Kalis appealed. For the reasons set forth in the following opinion, we affirm the judgment of the district court.

I BACKGROUND

A.Facts

1.

In April 1986, Ms. Kalis' mother, Nancy Kalis ("Mrs. Kalis"), purchased liquid fondue fuel from a local hardware store to use at an upcoming party for Ms. Kalis' older sister, Jennifer. During the party, the flame under the fondue pot went out, and Mrs. Kalis attempted to relight it. When she did so, the container of liquid fondue fuel exploded and caused severe injuries to Ms. Kalis. Within a few days of the accident, either Jennifer or Mrs. Kalis discarded the fondue pot and fuel container.

Nearly ten years later, on December 28, 1995, Ms. Kalis brought this action against Colgate. In her complaint, Ms. Kalis alleged that Colgate, as manufacturer of the fondue fuel and container, was responsible for her injuries on theories of negligence, breach of warranty, and strict liability. On October 23, 1996, the district court issued a preliminary pretrial scheduling order that set forth some procedural agreements of the parties, including the decision that "this case may be tried by the assigned Magistrate Judge." R.22 at 4. Ms. Kalis later executed a more formal consent to adjudication by a magistrate. See R.24. Specifically, Ms. Kalis' counsel agreed that: "In accordance with the provisions of 28 U.S.C. sec. 636(c) and Fed. R. Civ. P. 73, the above named . . . parties . . . hereby voluntarily consent to have a United States magistrate judge conduct any and all further proceedings in the case, including the trial, and entry of a final judgment." Id.

More than a year later, the district court conducted a status hearing. According to the accompanying minute entry, the hearing was "held and continued to 9:30 a.m. on 1/13/98. Non expert discovery to be completed by 2/13/98. . . ." Minute Entry of December 5, 1997. During the course of discovery, Colgate propounded interrogatories to Ms. Kalis that, among other information, requested a description of any details concerning the fondue fuel container used at the party. In response, Ms. Kalis did not state that the fuel was manufactured by Colgate; rather, she stated that it was a generic type of liquid fondue fuel, in a white-yellow, pint-sized container, which bore the trade or brand name "True Value."

Colgate also deposed Mrs. Kalis, who testified that she could not recall details concerning the fuel container, other than its height (eight to nine inches) and color (yellow). Mrs. Kalis indicated that she thought the container was cylindrical in shape, but was not sure. She did not know how the container was packaged or the amount of fuel it held. She further testified that she did not recall seeing any type of brand name or warnings on the package. As to thematters on which Mrs. Kalis lacked recollection, she indicated that she could not think of anything that would refresh her memory of the fuel or fuel container that she had purchased nearly twelve years earlier.

In November 1997, Colgate served on Ms. Kalis amended requests to admit. These requests asked that Ms. Kalis admit that she lacked knowledge "of any written representations on the packaging of the product." R.49, Ex.D, Plaintiff's Response to Colgate's Amended Request to Admit at 1. Ms. Kalis failed to respond to the requests within thirty days after service, and the requests therefore were deemed admitted. See R.69 at 16.

2.

One month after the close of discovery, on March 13, 1998, Colgate moved for summary judgment. The crux of Colgate's motion was that Ms. Kalis had failed to come forth with any evidence that Colgate manufactured the fuel or the fuel container that caused her injuries. According to an order entered that same day, the district court set a briefing schedule that required Ms. Kalis to file her responsive brief by May 11, 1998.

Despite the court's order, no answer was filed within the allowed time period, and the docket does not reflect a motion for extension of time to respond to Colgate's motion for summary judgment. Instead, on June 10, 1998, Ms. Kalis moved to stay briefing on the summary judgment motion and to seek additional discovery. In her motion, Ms. Kalis stated that her mother's memory regarding the brand of fondue fuel had been refreshed after examining color photocopies of Sterno- brand liquid fondue fuel.2 Ms. Kalis attached an affidavit by her mother in which Mrs. Kalis stated that her recollection concerning the manufacturer of the fuel and fuel container had been refreshed. She now believed "that the product which I bought in April 1986 at Millen True Value Hardware in Wilmette, Illinois was Sterno liquid fondue fuel in a container the same as or very similar to the one depicted in the photocopies my lawyer showed to me." R.47, Ex.A at 2. The pictures used to refresh Mrs. Kalis' memory were attached to the affidavit.

In her moving papers, Ms. Kalis stated that she now believed Millen's Hardware Store sold only one brand of fondue fuel at the time she was injured. Consequently, Ms. Kalis asked the district court to suspend briefing for ninety days and to permit the completion of discovery directed to prove this theory. Ms. Kalis also sought an order compelling Colgate to answer outstanding discovery requests concerning the identity of the manufacturer and distributor of the Sterno fuel and container.3 The court denied the motion without an opinion, but extended the response time for the motion for summary judgment until June 30, 1998.

Ms. Kalis filed her response on June 30, 1998. In addition to other materials in opposition to the motion for summary judgment, Ms. Kalis attached her mother's affidavit, amended answers to Colgate's interrogatories, and belated answers to Colgate's amended requests to admit. Colgate timely filed its reply brief on July 14, 1998 and also filed an accompanying motion to strike both Mrs. Kalis' affidavit and Ms. Kalis' answers to the requests for admissions.

B. District Court's Disposition

1.

After failed settlement attempts, the district court ruled on the summary judgment motion on May 10, 1999. The court agreed with Colgate that Ms. Kalis had "failed to identify evidence sufficient to permit a jury to reasonably conclude that Colgate manufactured or supplied the fondue fuel that exploded on April 15, 1986." R.69 at 9. Ms. Kalis, the district court explained, "plainly understands that this is so, and for that reason has sought to avoid summary judgment by including in her response two items--never produced during discovery-- that plaintiff claims creates a genuine issue of material fact concerning whether Colgate manufactured the fuel: (a) the affidavit of Nancy Kalis . . . and (b) a response to amended request to admit. . . ." Id. at 10. The court then addressed whether these two submissions should be considered.

With respect to the affidavit, the district court believed that it contradicted earlier testimony4 and appeared to be filed solely to create a question of material fact to survive summary judgment. After reviewing this court's decisions in Buckner v Sam's Club, Inc., 75 F.3d 290 (7th Cir. 1996), and Adusumilli v. City of Chicago, 164 F.3d 353 (7th Cir. 1998), the district court determined that Mrs. Kalis had not offered a "plausible explanation for the discrepancy" between her earlier testimony and the affidavit and therefore disregarded the affidavit. R.69 at 14 (internal quotation marks and citations omitted).

The court also noted that the photographs used to refresh Mrs. Kalis' recollection, attached as exhibits to the affidavit, were not produced prior to the close of discovery. Because Ms. Kalis offered no justification for why the photographs were not used or produced during the course of over two years of discovery, the court held that allowing her to use them would prejudice Colgate and would violate the court's discovery orders.

The court then turned to Ms. Kalis' attempt to file belated responses to the requests to admit. The requests had been deemed admitted by operation of law thirty days after they were served. Contrary to these admissions, Ms. Kalis claimed that her attorney possessed color photocopies of a yellow container of Sterno fondue fuel and that, as a result of viewing these photographs, she had knowledge of the writings on the container. The court found that Ms. Kalis "ha[d] offered no excuse for [the] tardy reply (which [was] simply tendered without seeking leave of court). If counsel wished to withdraw the admissions, the 'proper procedural vehicle' would have been a motion under Rule 36(b)." Id. at 17. Because Ms. Kalis was using the affidavit to undo the effect of the default admissions, and because Ms. Kalis had not established a basis for retracting her earlier default admissions, the court granted the motion to strike plaintiff's responses to the requests to admit.

The court then summarized its findings with respect to the evidentiary issues. "Without the affidavit, plaintiff is left swimming in a sea of...

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