Schrott v. Bristol-Myers Squibb Co.

• Decision Date: 13 April 2005
• Docket Number: No. 04-1193.,No. 03-3950.,03-3950.,04-1193.
• Citation: 403 F.3d 940
• Parties: Lori SCHROTT, Plaintiff-Appellant, v. BRISTOL-MYERS SQUIBB CO., et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

403 F.3d 940

Lori SCHROTT, Plaintiff-Appellant, v. BRISTOL-MYERS SQUIBB CO., et al., Defendants-Appellees.

No. 03-3950.

No. 04-1193.

United States Court of Appeals, Seventh Circuit.

Argued September 23, 2004.

Decided April 13, 2005.

John B. Cashion (argued), Chicago, IL, for Plaintiff-Appellant.

Timothy A. Pratt (argued), Shook, Hardy & Bacon, Kansas City, MO, Anthony J. Anscombe, Sedgwick, Detert, Moran & Arnold, Chicago, IL, for Defendants-Appellees.

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 "Meme" 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 drooping 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 implants removed in 1993.

In 1988, before her second surgery in 1989, Schrott complained to her doctors that she was suffering from headaches, 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 DICTIONARY 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 simultaneously."). 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 diisocyanate (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 significant 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 warranty. 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 emotional distress, and second, one for a violation of the Illinois Consumer Fraud and Deceptive Business Practices Act, 815 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 rejected, 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 framework set out in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (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 Evidence and other evidentiary rules derived from federal statutes, Supreme Court decisions, or other sources of federal 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, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997), and Kumho Tire Co. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed.2d 238 (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 evidence 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, 85 S.Ct. 1136, 14 L.Ed.2d 8 (1965).

With respect to costs, Schrott argues that the $7,560 she paid in the state court action for defense counsel's depositions 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 actions, to decide that the federal action was not a mere continuation 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).

We see no more merit in her arguments relating to the timeliness of her claim. Yet there is an even more fundamental problem with her case: even if we were to agree that the claim is...