The Court of Appeals for the Seventh Circuit in denying relief held that the record needs to show more than post hoc, ergo propter hoc. In Kallal v. Ciba Vision Corporation, Inc. ___ F.3d. ___ (7th Cir. 2-24-2015) 2015 WL 759249 plaintiff used defendants contact lenses and about a week after he started using them he experienced sharp pain in his eyes. He did not stop using them but limited his use to the contacts to times when he exercised. He continued to wear them on and off for a few months. In the meantime, defendant had discovered that a large number of the contact lenses it manufactured did not permit enough oxygen to reach the cornea. The company recalled about 11 million contact lenses for this reason and the recalled lots included some 02 OPTIX lenses ordered by the store which had sold 02 optic lenses to plaintiff.
Defendant moved for summary judgment. In an effort to prevail plaintiff pointed out that the lenses he wore were manufactured in the same plant that manufactured the recalled lenses. However, defendant demonstrated that the lenses from that plant in plaintiff”?s prescription strength were not a part of the recalled lot. In granting summary judgment the Court said:
“We accept that Kallal exhibited symptoms after wearing CIBA”?s 02 Optix lenses, but the record needs to show more than post hoc, ergo propter hoc the mere fact that a person suffers pain when using a product does not, by itself, prove that the product is defective. Kallal offered no factual support that would permit a reasonable trier of fact to conclude his injuries stemmed from defective CIBA lenses and not from a general reaction to all contact lenses or something else altogether. To recap, Rose Optical – Kallal”?s sole supplier of contact lenses during the relevant period – never received CIBA lenses in Kallal”?s prescription that were within the scope of the recall. Looking exclusively at the evidence before the court on the defective product theory, we conclude that CIBA was entitled to summary judgment.”