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Ciomber v. Cooperative Plus

May 28, 2008


Appeal from the United States District Court for the Northern District of Illinois, Western Division. No. 04 C 50129-Philip G. Reinhard, Judge.

The opinion of the court was delivered by: Kanne, Circuit Judge.


Before KANNE, EVANS, and WILLIAMS, Circuit Judges.

James Ciomber sued Cooperative Plus, Inc., alleging that the company was responsible for an explosion fueled by liquefied-petroleum (LP) gas that injured him and damaged his house. After the district court excluded the testimony of Ciomber's expert witness, see Fed. R. Civ. P. 37(c)(1), and disregarded Ciomber's statement of proposed material facts, see Loc. R. 56.1(b) (N.D. Ill.), it granted Cooperative Plus summary judgment because he proffered no evidence showing that the company caused the explosion. We affirm.


In the middle of the night on November 18, 2001, Ciomber's house in Poplar Grove, Illinois, exploded. The building was mostly leveled, and those areas that were not leveled caught fire. Ciomber, who was in the house at the time, suffered severe injuries as a result, but amazingly (and thankfully) survived.

In November 2003, Ciomber filed suit in Illinois state court against Cooperative Plus, the company that provided LP-gas for his house, alleging that the company negligently caused the destruction of his house and his resulting injuries. Ciomber claimed that although he repeatedly reported to the company the existence of an LPgas leak in his basement, the company did not take appropriate steps to repair the leak. He continued that, because Cooperative Plus breached its duty to fix the leak, LP-gas accumulated in his basement "in such a volume and in such a concentration so as to be susceptible to ignition by an unknown source." As Ciomber concluded in paragraph 12 of his complaint, the explosion and his injuries were "direct and proximate result[s] of the breaches of the duties" Cooperative Plus owed to him. Cooperative Plus denied Ciomber's numerous allegations in its answer; as relevant here, the company denied that Ciomber "was injured in the manner or to the extent claimed" in paragraph 12, and "further denie[d] the remaining allegations contained in [that paragraph]."

Shortly after Cooperative Plus filed its answer, the company successfully removed the action to federal district court on the basis of diversity jurisdiction. See 28 U.S.C. §§ 1332, 1441. Discovery commenced in May 2004. Although the court initially ordered discovery to cease in December 2004, it continued well into 2006 because, among other reasons, Ciomber's attorneys-husband and wife Karl Szymanski and Cynthia Szymanski Koroll- made numerous motions for extensions of discovery deadlines. We need not recount the reasons underlying those motions, but what is pertinent is that, between May 2005 and September 2005, counsel moved five times to extend discovery deadlines, including the date by which they needed to disclose Ciomber's expert-witness report. See Fed. R. Civ. P. 26(a)(2). After Mr. Szymanski brought the fifth of these motions in September, the court warned him that, although it would grant the motion, he would have no more additional time to disclose the report; the court then stated that Mr. Szymanski had until October 31, and set a status hearing for November 2 to address other unresolved discovery matters.

Ciomber's attorneys disclosed the Rule 26(a)(2) report of his expert witness, Kim Mniszewski, on November 1, one day after the October 31 deadline. In the "report," Mniszewski merely provided eight terse statements concluding that Cooperative Plus was responsible for the destruction of Ciomber's house; the grounds for his conclusions were, in most instances, even more laconic. For example, Mniszewski concluded that "[t]he cause of the explosion is [sic] a buildup of [LP] gas from failed [sic] pipe connection in the basement area." Mniszewski "explained" that his conclusion was based on "inspection, analysis." Mniszewski also provided vague references to documents that he purportedly reviewed before forming his conclusions: (1) a county sheriff's report; (2) "[v]arious deposition transcripts and corresponding exhibits"; (3) the National Fire Protection Association's National Fuel Gas Code and LP Gas Code; and (4) National Propane Gas Association "documents."

Ciomber's attorneys also filed on November 1 another motion for more time to disclose the report; in the motion, counsel implied that the report, as disclosed, was incomplete, and stated that Mr. Szymanski was unable to disclose a completed report because he was hospitalized. The district court addressed the motion at the November 2 status hearing. Ms. Szymanski Koroll appeared at the hearing on behalf of Ciomber, and explained that Mr. Szymanski suffered a heart attack on October 30, which was why they were late in disclosing Mniszewski's report. Ms. Szymanski Kroll further stated that the disclosed report was "still not what [she] want[ed]," and asked for seven days to disclose an amended report. The court readily granted Ms. Szymanski Koroll's request; however, the amended report that she promised was never disclosed.

Nearly three months later, Cooperative Plus filed two motions, one asking the district court to exclude Mniszewski's testimony, and another seeking summary judgment. Cooperative Plus contended that, because Mniszewski's report did not comply with Rule 26(a)(2)'s requirements, Ciomber should be prohibited from introducing Mniszewski's testimony in support of his negligence claim. See Fed. R. Civ. P. 37(c)(1). Cooperative Plus also asserted that without Mniszewski's testimony, Ciomber could not establish that the company's negligence caused the destruction of his house. Specifically, the company pointed to Ciomber's deposition testimony, in which he admitted that on the day before the explosion he moved his LP-gas-fueled dryer away from the dryer's LP line, and that the dryer did not operate after he moved it. Cooperative Plus therefore argued that, without Mniszewski's testimony countering Ciomber's admissions, Ciomber could not show that the company's negligence caused the LP-gas leak that led to the explosion.

The district court took Cooperative Plus's motions under advisement and instructed the parties to proceed with deposing Mniszewski. In addition to elaborating on his report, Mniszewski testified that Mr. Szymanski did not ask him to prepare the report until October 25, 2005-less than a week before the district court's final deadline for the report's disclosure. Mniszewski further stated that no one assisted him when drafting the report, and that he did not submit the report to anyone for review or comment before it was disclosed.

The parties deposed Mniszewski twice over a month-long period, and during that time Ciomber responded to Cooperative Plus's motion for summary judgment. As part of his filing, Ciomber submitted a response to Cooperative Plus's proposed material facts, as required by Loc. R. 56.1(b). But instead of presenting both a response to Cooperative Plus's statement of proposed facts and a separate statement of his own proposed facts, Ciomber commingled the two statements to create an argumentative response to Cooperative Plus's filing.

Not long after briefing completed, the district court granted both Cooperative Plus's motion to exclude Mniszewski's testimony and its motion for summary judgment. In a consolidated order, the court excluded Minzewski's deposition testimony, concluding that Ciomber "offered no justification for his failure to provide a complete expert report in a timely fashion." The court then stated that it would disregard the facts Ciomber presented in his Rule 56.1 response because the filing did not comply with Loc. R. 56.1(b). With no admissible expert testimony and no suitable statement of proposed facts, the court stated, Ciomber proffered no evidence to rebut Cooperative Plus's evidence showing that Ciomber caused an LP-gas leak when he moved his dryer, and that his ...

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