author: RIPPLE, Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Melvin R. THOMAS, also known as Melvin R. Thompson, Defendant-Appellant.
    No. 15-2691
    United States Court of Appeals, Seventh Circuit.
    Argued September 16, 2016
    Decided January 10, 2017

      David J. Reinhard, Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Madison, WI, for Plaintiff-Appellee.
    Johanna M. Christiansen, Thomas W. Patton, Attorneys, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Peoria, IL, for Defendant-Appellant.
    Melvin R. Thomas, Pro Se.

      Before POSNER, RIPPLE, and ROVNER, Circuit Judges.
   RIPPLE, Circuit Judge.

Melvin Thomas was indicted by a grand jury on one count of conspiracy to possess, with intent to distribute, a mixture or substance containing heroin, in violation of 21 U.S.C. §§ 841(a)(1), 846; and two counts of possessing, with intent to distribute, a mixture or substance containing heroin, in violation of 21 U.S.C. § 841(a)(1). He pleaded not guilty, and the case proceeded to trial. At the end of the Government’s case, Mr. Thomas moved for a judgment of acquittal. The district court denied the motion. A jury later found Mr. Thomas guilty of the charged offenses, and the court subsequently sentenced him to 216 months’ imprisonment. Mr. Thomas timely appealed. He now challenges the sufficiency of the evidence to support his conspiracy conviction. He also maintains that the district court erred in imposing a sentencing enhancement for maintaining a drug house.

We conclude that there is sufficient evidence to sustain the conspiracy charge and that the evidence supports the district court's imposition of the sentencing enhancement. Accordingly, we affirm the judgment of the district court.

I

BACKGROUND

While investigating a heroin dealer named Domingo Blount, Drug Enforcement Agency (“DEA”) agents intercepted, through a court-authorized wiretap, Blount’s incoming and outgoing telephone calls. Among the intercepted calls were twenty-nine calls from Blount’s number to Mr. Thomas. Discovery of these calls eventually led to the DEA’s investigating Mr. Thomas’s activities. Through subsequent surveillance, the agents in Chicago observed several meetings between Blount and Mr. Thomas.

On November 9, 2010, the DEA learned that Mr. Thomas was traveling back to Wisconsin from Chicago and that he was carrying heroin. Madison police officers conducted a traffic stop of the vehicle. Anita Andrews was the driver; Mr. Thomas was the passenger. The officers searched the car and patted Andrews down, but did not find any contraband and therefore allowed the car to proceed. Andrews later testified that the officers had failed to detect any drugs because she had concealed them in her genital area.

On December 10, 2010, officers stopped another vehicle arriving in Madison from Chicago. Porcha Bell was driving; Mr. Thomas was the passenger. When questioned, Bell admitted that, at Mr. Thomas’s request, she was concealing twenty-five grams of heroin in her vagina. She said that she had acquiesced to his request because Mr. Thomas had promised to buy her children Christmas presents and because she had feared that Mr. Thomas would leave her in Chicago if she refused. During this encounter, Mr. Thomas was arrested on a Wisconsin probation hold.

Shortly thereafter, agents conducted a consent search at Andrews’s home. During the course of that search, the agents found a digital scale, a chemical substance used to cut or mix drugs, and twenty-two sandwich baggies with the corners cut out. After seizing these items and questioning both Andrews and two other adults then present in the home, the officers left.

Later that morning, agents listened to Mr. Thomas’s post-arrest jail calls. Mr. Thomas’s first call was to his mother. In this phone call, Mr. Thomas asked his mother to call Andrews and to tell her to get rid of his “stash” and to get the cash out of the Cadillac that he had parked at her residence. Based on this call, agents seized the automobile. They found approximately $2,460 in the glove box of the car. No drugs were found.

Based on this evidence, Mr. Thomas was indicted by a grand jury on one count of conspiracy to possess, with intent to distribute, a mixture or substance containing heroin; and two counts of possessing, with intent to distribute, a mixture or substance containing heroin. A three-day jury trial commenced on May 18, 2015. Andrews testified for the Government. In addition to the encounters already described, she testified that she had driven Mr. Thomas to Chicago on several occasions. After purchasing the heroin, the pair would return to Madison and either stop at the home of Mr. Thomas’s mother or drive directly to Andrews’s house. Testifying about the November 10, 2010 stop, Andrews stated that, during this stop, she had concealed heroin in her genital area because Mr. Thomas had told her to “[d]o this or I’ll knock you the f- -k out.”

After the November 10 stop, Andrews’s relationship with Mr. Thomas soured. Andrews testified that she rarely saw Mr. Thomas after their breakup, although Mr. Thomas still kept personal items at her home. At trial, Andrews described Mr. Thomas as having “items there, but he was not — he was gone all the time. I barely saw him.” When Mr. Thomas later testified, he also described the relationship as rocky.

Two law enforcement officers also testified at trial. A DEA agent, Terrence Glynn, discussed the wiretap on Blount’s phone and conversations involving Mr. Thomas. Detective Dorothy Rietzler of the Madison Police Department testified about the December 10, 2010 stop. Mr. Thomas does not dispute this testimony.

At the conclusion of the Government’s case, Mr. Thomas moved for a judgment of acquittal. The district court denied the motion stating, “I think the circumstantial evidence as such is so strong that I’m going to allow the case to proceed, although you’ve preserved your record and you can make what arguments you wish at the appropriate time in more detail.”

The defense then called two witnesses: Porcha Bell and Mr. Thomas himself. Bell was subpoenaed to appear by both the Government and the defense at trial, but did not show up. However, the district court allowed defense counsel to play a recording of her testimony at Mr. Thomas’s state probation revocation proceedings. There, Bell recounted her version of the events of December 10, 2010, including that she had concealed drugs in her genital area at Mr. Thomas’s request.

Mr. Thomas also took the stand. He offered a different explanation for his contact with Blount and his interaction with Bell. According to Mr. Thomas, he was purchasing medicinal marijuana, not heroin, from Blount. He admitted that he communicated with Blount, via text messages and telephone calls, but testified that those communications, which included references to selling drugs on “corners,” were referring only to marijuana and that Andrews did not help him with these sales. Mr. Thomas also testified that his relationship with Andrews was rocky because they were cheating on each other.

Mr. Thomas also offered a wholly different explanation for his interaction with Bell on December 10. According to Mr. Thomas,

I was at — I had went to a party over in the Castille area and later that night my cousin Matt and Porcha Bell had showed up at this party. Matt had ended' up going home with a chick, a female that he messing with, so I had ended up getting the van from him. And a little later after that, I had — I was getting ready to go home and Porcha Bell had asked me to drop her off and I told Porcha Bell that since we both were heading in the same direction, on the east side, I told Porcha Bell that I would drop her off on the conditions that she drive to her destination and then I would drive home from there, which was to my house, Anita — me and Anita’s house. Because I didn’t want to drive because I had like four driving traffic tickets that I had owed money on.
I asked Porcha Bell did she have a driver’s license and she told me yeah. So I let her drive. On my way home, she got off the beltline on Stoughton over on Pflaum Road and she didn’t have — she was driving without the headlights on, so we ended up getting pulled over for a traffic stop.[]

Mr. Thomas asserted that he was unaware of the drugs in Bell's possession. He “believe[d] that Detective Rietzler coerced her to say that those narcotics belonged] to [him] during the traffic stop.”

The jury later found Mr. Thomas guilty on all counts, and, specifically determined that the conspiracy involved 100 grams or more of heroin.

The presentence report (“PSR”) recommended a two-level enhancement under U.S.S.G. § 2Dl.l(b)(12) for maintaining a drug house. It further advised that Mr. Thomas qualified as a career offender under § 4Bl.l(b)(l) because of his four prior felony convictions for controlled substance offenses. Mr. Thomas did not file written objections to the PSR, but at the sentencing hearing his counsel “maintain[ed] [Mr. Thomas’s] innocence and objected] to the factual portions and the full report.”

The district court concluded that, because of the four prior felony controlled substance offenses, Mr. Thomas was a career offender. This determination resulted in an advisory guideline imprisonment range of 360 months to life. The court decided to impose a sentence of 216 months’ imprisonment. Mr. Thomas timely filed this appeal.

II

DISCUSSION

A.

Mr. Thomas first submits that the district court erred in denying his motion for a judgment of acquittal. He maintains that the record contains insufficient evidence to support his conspiracy conviction.

We review de novo the district court’s denial of the motion for judgment of acquittal. United States v. Fassnacht, 332 F.3d 440, 447 (7th Cir. 2003). In reviewing the district court’s decision, we must assess “the evidentiary basis for the jury’s verdict in the light most favorable to the government.” Id. (internal quotation marks omitted). We will uphold the conviction if “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” United States v. Granados, 142 F.3d 1016, 1019 (7th Cir. 1998) (internal quotation marks omitted) (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)). We will overturn the juiy’s verdict only when the record is “devoid of evidence from which a reasonable jury could find guilt beyond a reasonable doubt.” United States v. Campbell, 770 F.3d 556, 568 (7th Cir. 2014). A defendant challenging the sufficiency of the evidence against him therefore “faces a formidable burden." United States v. Goree, 756 F.3d 522, 525 (7th Cir. 2014) (internal quotation marks omitted).

Mr. Thomas contends that the Government “failed to prove he had any cocon-spirators.” The Government maintains, however, that Andrews was Mr. Thomas’s coconspirator. Mr. Thomas counters that Andrews’s participation does not rise to the level of conspiratorial conduct because: (1) she did not knowingly agree with Mr. Thomas; and (2) she did not receive any payment or consideration for her role.

To convict a defendant on a conspiracy charge, the Government must prove that “(1) two or more people agreed to commit an unlawful act, and (2) the defendant knowingly and intentionally joined in the agreement.” United States v. Vaughn, 722 F.3d 918, 928 (7th Cir. 2013). Specifically, a drug-distribution conspiracy charged under 21 U.S.C. § 846 “requires proof that the defendant knowingly agreed — either implicitly or explicitly— with someone else to distribute drugs.” United States v. Johnson, 592 F.3d 749, 754 (7th Cir. 2010). Although an agreement is sometimes express, an assessment of circumstantial evidence is frequently necessary. United States v. Pulgar, 789 F.3d 807, 813 (7th Cir. 2015). “Importantly, there is no rigid list or formula to prove a conspiracy in the absence of an express agreement.” Id.; United States v. Brown, 726 F.3d 993, 1002 (7th Cir. 2013) (“[0]ur list of example considerations may make it sound as if we are checking off boxes and only looking for specified indicia. That is not the case.”). The court must undertake a fact-specific inquiry. In short, we employ a totality-of-the-circumstances approach and “take into account all the evidence surrounding the alleged conspiracy and make a holistic assessment of whether the jury reached a reasonable verdict.” Brown, 726 F.3d at 1002.

An examination of the record makes clear that the jury was entitled to conclude that Andrews was a knowing co-conspirator. She drove Mr. Thomas to and from Chicago to buy heroin from Blount; by doing so she clearly assisted in accomplishing the objective of the conspiracy. She also rented vehicles for the trips. Indeed, Andrews testified that she drove Mr. Thomas to locations to make drug deliveries. On at least one occasion, Andrews packaged heroin for Mr. Thomas when he called her and said, “Hurry up, I need to you do [sic] something for me.” Even if Mr. Thomas was angry when this request was made, that does not overcome the fact that “the jury could have easily concluded” that both parties “embraced the conspiracy’s objectives.” United States v. James, 540 F.3d 702, 708 (7th Cir. 2008).

Mr. Thomas also submits that Andrews cannot be a coconspirator because she did not gain any benefit for her role. But “[a] criminal without a profit motive is still a criminal as long as all elements of the crime are established.” United States v. Hunte, 196 F.3d 687, 691 (7th Cir. 1999). We already have determined that a jury could have concluded reasonably that Andrews was a coconspirator; any lack of profit does not alter that status.

B.

Mr. Thomas also maintains that the district court erred in imposing a sentencing enhancement for maintaining a drug house.

We first must address whether Mr. Thomas adequately raised the challenge to the PSR’s recommendation that this enhancement be imposed. If he did, we will review the district court’s application of the sentencing guidelines de novo and its factual findings under the clearly erroneous standard. United States v. Bennett, 461 F.3d 910, 912 (7th Cir. 2006). If he did not object sufficiently, we will review for plain error. United States v. Seals, 813 F.3d 1038, 1044-45 (7th Cir. 2016).

An examination of the record reveals that, at sentencing, Mr. Thomas maintained his innocence and objected to the “full report.” He made no specific objection with respect to this enhancement. He now maintains that this general objection was sufficient to preserve the issue on appeal. The Government counters that the general objection was insufficient notice of Mr. Thomas’s specific challenge to the drug house enhancement.

The Government is correct. Precedent and strong policy reasons support its position. “It is now axiomatic that in order ‘[t]o preserve an issue for appellate review, a party must make a proper objection at trial that alerts the court and opposing party to the specific grounds for the objection.’” United States v. Hardamon, 188 F.3d 843, 848 (7th Cir. 1999) (alteration in original) (internal quotation marks omitted) (quoting United States v. Linwood, 142 F.3d 418, 422 (7th Cir. 1998)); see also United States v. Neal, 578 F.3d 270, 272-73 (5th Cir. 2009). Thus, a party may not rest on a general objection to the evidence; “absent a proper, specific and timely objection ... we will only review for plain error.” Hardamon, 188 F.3d at 849.

On plain error review, we may reverse the district court’s findings only when: “(1) [an] error occurred; (2) the error was ‘plain’; (3) and the error affected the defendant’s substantial rights.” United States v, Corona-Gonzalez, 628 F.3d 336, 340 (7th Cir. 2010) (alteration in original) (internal quotation marks omitted) (citing United States n Olano, 507 U.S. 725, 731-36,113 S.Ct. 1770,123 L.Ed.2d 508 (1993)). If these criteria are met, we may exercise our discretion and reverse the judgment if we determine that the error “seriously affect[ed] the fairness, integrity or public reputation of judicial proceedings.” Olano, 507 U.S. at 732, 113 S.Ct. 1770 (internal quotation marks omitted).

We need address only the first prong of this test because no error occurred. The Sentencing Guidelines provide for this two-level enhancement where “the defendant maintained a premises for the purpose of manufacturing or distributing a controlled substance.” U.S.S.G. § 2Dl.l(b)(12). Application Note 17 explains:

Among the factors the court should consider in determining whether the defendant “maintained” the premises are (A) whether the defendant held a possessory interest in (e.g., owned or rented) the premises and (B) the extent to which the defendant controlled access to, or activities at, the premises.
Manufacturing or distributing a controlled substance need not be the sole purpose for which the premises was maintained, but must be one of the defendant’s primary or principal uses for the premises, rather than one of the defendant’s incidental or collateral uses for the premises. In making this determination, the court should consider how frequently the premises was used by the defendant for manufacturing or distributing a controlled substance and how frequently the premises was used by the defendant for lawful purposes.

U.S.S.G. § 2D1.1 n.17. Mr. Thomas submits that the enhancement is inapplicable to him because he did not have a possesso-ry interest over Andrews’s home and because housing his drug operation was not the home’s primary purpose.

We cannot accept these arguments. The enhancement does not require either ownership or a leasehold interest. United States v. Flores-Olague, 717 F.3d 526, 532 (7th Cir. 2013). An ownership interest is but one consideration. As Mr. Thomas admits, another consideration is whether “the defendant lives in the house.” The record certainly supports the district court’s finding that he resided with Andrews. As Mr. Thomas admits, and Andrews’s testimony corroborates, he “moved into Andrews’s apartment in Madison, Wisconsin about two to three months after their relationship began and he lived off and on at this location” until December 2010.

Even though Andrews testified that she “barely saw” Mr. Thomas after the November 2010 traffic stop, this factor alone does not prevent a finding that Mr. Thomas lived in the home. It is uncontested that Mr. Thomas kept personal items at Andrews’s home at least until the December 2010 search. Mr. Thomas’s December 2010 jail call to his mother is, moreover, particularly persuasive on the ultimate issue. In that call, Mr. Thomas specifically referred to “stash spots” in Andrews’s home, as well as a car of his parked at Andrews’s residence, which contained a large quantity of cash. A reasonable fact-finder could easily conclude that Mr. Thomas maintained a connection to the home at the time of these calls. There would be no reason otherwise for Mr. Thomas to ask his mother to have Andrews check the home for his “stash.”

Mr. Thomas’s use of the home as part of his scheme was part of the home’s “primary purpose.” We reviewed a similar issue in United States v. Sanchez, 810 F.3d 494 (7th Cir. 2016). In Sanchez, defense counsel similarly argued that the § 2Dl.l(b)(12) enhancement should not apply because the primary purpose of Sanchez’s residence was not drug distribution. Defense counsel emphasized that:

in other cases the “primary purpose” requirement of the guideline was met by additional facts, such as when the defendants also “maintained business records, used a child to deliver narcotics, settled financial transactions or accepted payment” on the premises. [Defense counsel argued that] Sanchez, however, was merely providing storage and this was not enough to make drug distribution the primary purpose of his house.

Id. at 496. We disagreed and affirmed the district court’s finding that storing drugs was one of the home’s primary purposes. We explained: “a premise can have more than one primary use (drug distribution and residence), and, as long as it is more than ‘incidental or collateral,’ drug distribution does not have to be the ‘sole purpose.’” Id. at 497. We also noted that storing additional tools of the drug-trafficking trade can be “indicia that drug trafficking was the principal use of the premises.” Id. (quoting Flores-Olague, 717 F.3d at 533).

The district court certainly did not commit plain error. Mr. Thomas admits that Andrews testified that Mr. Thomas “cut[ ] and packaged] heroin in her home,” though she only witnessed it on one occasion. Andrews also admitted that “she packaged heroin for Mr. Thomas one time” in her home upon his insistence. Even if “no drug sales ever occurred at her residence,” Andrews also testified to her belief that her television console was being used to store drugs. Additionally, the December 2010 search of the home yielded a digital scale, a cutting agent, and plastic sandwich baggies with the corners cut out. These tools of the trade are “indicia that drug trafficking was the principal use of the premises.” Sanchez, 810 F.3d at 497 (internal quotation marks omitted).

The district court’s finding was further supported by another witness’s statements in the PSR. Trina Harr, who lived with Mr. Thomas and Andrews for a period of time and was present when police searched Andrews’s home, stated that she had observed Mr. Thomas cutting up heroin approximately seven to eight times at Andrews’s home. Although she did not testify at trial, Harr told investigators that she had seen heroin in the house and that she observed Mr. Thomas mixing or cutting the heroin and packaging the heroin into sandwich bags for sale at the home. Harr also saw Mr. Thomas retrieve a scale from the downstairs closet of the home on numerous occasions. It therefore was appropriate to apply the enhancement.

Conclusion

The district court’s opinion is affirmed. There was sufficient evidence to support a finding that Mr. Thomas conspired with Andrews. The court also did not err in imposing a two-level sentencing enhancement for maintaining a drug house; the record supports a finding that Mr. Thomas lived in Andrews’s home and used that home as part of his distribution process.

AFFIRMED

      . Officers found Inositol, a substance often used as a cutting agent with cocaine and heroin. Appellant’s Br. 6; see R.244 at 185-86.

      . Detective Dorothy Rietzler explained that the cut corners were significant because drug dealers will “put the substance into the corner [of the] baggie, subsequently knot it off ... and then that corner is cut [out].” R.248 at 55. This allows dealers to use one sandwich bag to package two units of product.

      . The district court’s jurisdiction was predicated on 18 U.S.C. § 3231.

      . R.244 at 168.

      . Id. at 169.

      .R.248 at 157.

      . Id. at 135-37.

      . Id. at 218-19.

      . See R.202 at 7.

      . R.248 at 180-81.

      . Id. at 182, 185.

      . Id. at 168.

      . Id. at 170-71.

      . Id. at 175.

      . R.249 at 65-66.

      . R.202 at 14.

      . Id. at 15.

      . R.246 at 3.

      . Our jurisdiction is predicated on 28 U.S.C. § 1291.

      . Appellant's Br. 17.

      . R.244 at 179-80.

      . Appellant’s Br. 6; R.244 at 178.

      . R.246 at 3.

      . See, e.g., Puckett v. United States, 556 U.S. 129, 134, 129 S.Ct. 1423, 173 L.Ed.2d 266 (2009) ("This limitation on appellate-court authority serves to induce the timely raising of claims and objections, which gives the district court the opportunity to consider and resolve them. That court is ordinarily in the best position to determine the relevant facts and adjudicate the dispute.”).

      . See also United States v. Carter, 834 F.3d 259, 262-63 (3d Cir. 2016) ("[T]he absence of [the defendant's] name on a deed or lease is insufficient to preclude the enhancement's application.”); United States v. Jones, 778 F.3d 375, 385 (1st Cir. 2015) (citing United States v. Renteria-Saldana, 755 F.3d 856, 859-60 (8th Cir. 2014)).

      . Appellant’s Br. 30 (quoting United States v. Russell, 595 F.3d 633, 645 (6th Cir. 2010)).

      . R.246 at 5-6.

      . R.244 at 156 (stating, for example, Mr. Thomas moved in "[v]eiy quickly”).

      . Appellant’s Br. 4.

      . R.244 at 169.

      . Appellant’s Br. 6-7; R.244 at 169-70. Mr. Thomas also testified that Bell was driving him to "[his] and Anita [AndrewsJ's house” when they were pulled over, implying that he was still residing at Andrews’s home on December 10, 2010. R.248 at 171.

      . Id. at 187-88, 200. Mr. Thomas admits that this call took place, but disputes whether we can infer that drugs were still at the home, since, when the police returned to Andrews’s residence for the second search, they did not find heroin. Appellant’s Br. 32. The district court’s determination, however, is supported by evidence of the phone call.

      . R.248 at 58-59, 187-88.

      . See also United States v. Flores-Olague, 717 F.3d 526, 531-32 (7th Cir. 2013) (holding the enhancement was applicable when defendant stored cocaine on the premises for several years, sold it to at least ten regular customers, and had firearms in the home); see also United States v. Bell, 766 F.3d 634, 638 (6th Cir. 2014) ("Drug storage on the property and transactions on the property will usually suffice [to establish primary use.]”); United States v. Miller, 698 F.3d 699, 706-07 (8th Cir. 2012) (applying enhancement when co-conspirator was involved in at least three transactions at the home, used her son to deliver drugs to one of the buyers, and collected payment for drugs on several occasions).

      . Appellant's Br. 4.

      . Id.

      . Id. at 5.

      . Id. at 4.

      . R.248 at 54-56; see supra note 2.

      .It is unclear how long Harr lived with Mr. Thomas and Andrews, however, Mr. Thomas admitted that Harr lived with them around the time of his arrest in December 2010. R.248 at 173-74.

      .R.202 at 11.


source: Caselaw Access Project

author: POSNER, Circuit Judge. SYKES, Circuit Judge,

license: Public Domain

text:
    Antonio ROBLEDO-SOTO, Petitioner, v. Loretta E. LYNCH, Attorney General of the United States, Respondent.
    No. 16-2954
    United States Court of Appeals, Seventh Circuit.
    Submitted December 9, 2016
    Decided January 10, 2017

      Jason Flora, Alexander E. Budzenski, Attorney, Indianapolis, IN, for Petitioner.
    Surell Brady, Attorney, OIL, Attorney, Department of Justice, Civil Division, Immigration Litigation, Washington, DC, for Respondent.
    Before POSNER, KANNE, and SYKES, Circuit Judges.
   POSNER, Circuit Judge.

Robledo-Soto, the petitioner, a Mexican citizen facing removal (deportation) to Mexico, sought to postpone his removal proceeding so that he could expunge a drunk-driving conviction and if he succeeded in doing that try to persuade the Department of Homeland Security to drop its efforts to seek his removal. The Department’s Immigration and Customs Enforcement division (ICE) prosecutes removal cases (technically removal cases are civil, realistically they are closer to being criminal); and if ICE decides not to prosecute, the alien goes scot-free. Although Robledo-Soto’s drunk-driving conviction had not been the basis for the Department’s seeking to remove him — the basis was that he’d entered the United States without being authorized to do so, see 8 U.S.C. § 1182(a)(6)(A)(i) — it did make him a priority for removal, and he hoped that if the conviction was expunged from his record he could convince the Department to exercise its prosecutorial discretion not to seek his removal. For what is true is that in recognition of the limited resources of most government agencies, the agencies are authorized to decide “whether agency resources are best spent on this violation or another, whether the agency is likely to succeed if it acts, whether the particular enforcement action requested best fits the agency’s overall policies, and, indeed, whether the agency has enough resources to undertake the action at all.” Heckler v. Chaney, 470 U.S. 821, 831, 105 S.Ct. 1649, 84 L.Ed.2d 714 (1985); see also Arizona v. United States, 567 U.S. 387, 132 S.Ct. 2492, 2499, 183 L.Ed.2d 351 (2012); Shoba Sivaprasad Wadhia, “The History of Pros-ecutorial Discretion in Immigration Law,” 64 American University Law Review 1285,1291-93 (2015).

Robledo-Soto succeeded in getting his drunk-driving conviction expunged, brightening his prospects for a favorable exercise of prosecutorial discretion — already bright, one might have thought (erroneously, as we’re about to see), because he’s the parent of three American citizen children (aged 13, 9, and 7), and there is a process (though as we’re about to see it has never been put into effect) called “Deferred Action for Parents of Americans” (DAPA) that is intended to allow such a person to request the Department of Homeland Security to “defer action” in his case. See Memorandum from Jeh Charles Johnson, Secretary of the Department of Homeland Security, to León Rodríguez, Director of U.S. Citizenship and Immigration Services (USCIS), Nov. 20, 2014, www.dhs.gov/ sites/default/files/publications/14_1120_ memo_deferred_action.pdf. (visited Jan, 10, 2017, as were the other websites cited in this opinion). Secretary Johnson’s memo directing the creation of DAPA followed upon, and was doubtless inspired by, President Obama’s announcement in late 2014 that he planned to use presidential executive powers to institute a variety of immigration reforms.

The reader needs to understand that asking for a favorable exercise of prose-cutorial discretion (i.e., DAPA relief) is different from requesting either withholding or cancellation of removal, which are oft-invoked grounds for avoiding removal. Withholding of removal requires a showing that the applicant is likely to face persecution if deported to his or her country of origin, 8 C.F.R. § 208.16, and Robledo-Soto neither applied for withholding of removal nor has ever claimed to fear persecution in Mexico. And cancellation of removal requires the applicant to meet certain threshold requirements, 8 U.S.C. § 1229b, one of which is proof of 10 years of continuous physical presence in the United States, § 1229b(b)(l)(A). Robledo-Soto can prove only 9.5 years of such presence, so the immigration judge determined that he is ineligible for cancellation of removal. Robledo-Soto acknowledges that he is ineligible for either withholding or cancellation of removal— the former because he failed to ask for it, the latter because he is ineligible for it.

That leaves him with his quest for deferred action by the Department of Homeland Security, a quest that began with his entreaty for a continuance to expunge his criminal record. The Supreme Court has defined and approved deferred action as a lawful exercise of the Executive Branch’s “discretion to abandon” a removal proceeding at any stage of the proceeding. Reno v. American-Arab Anti-Discrimination Committee, 525 U.S. 471, 488-84,119 S.Ct. 936, 142 L.Ed.2d 940 (1999). But Robledo-Soto faces a serious obstacle. USCIS, the component of the Department that deals with applications for immigration relief, has, because of a preliminary injunction against its implementing DAPA (which remember stands for “Deferred Action for Parents of Americans”) upheld in Texas v. United States, 809 F.3d 134, 170-78 (5th Cir. 2015), has decided neither to implement DAPA nor accept applications for DAPA relief. As a result there is no “deferred action” process for Robledo-Soto to invoke.

Now it’s true the Supreme Court granted certiorari in Texas v. United States, but then deadlocked 4-4, see United States v. Texas, — U.S. —, 136 S.Ct. 2271, 195 L.Ed.2d 638 (2016) (per curiam), and as a result the Fifth Circuit’s decision stands, though its soundness has been questioned. See, e.g., Unconstitutionality of Obama’s Executive Actions on Immigration: Hearing Before the House Committee on the Judiciary, 114th Cong., 1st Sess. 61, 72-74 (2015) (statement of Stephen H. Legom-sky, Former Chief Counsel of USCIS), https://judiciary.house.gov/wp-content/ uploads/2016/02/114-3_93526.pdf; Shoba Si-vaprasad Wadhia, “The Aftermath of United States v. Texas: Rediscovering Deferred Action,” Yale Journal on Regulation, Notice & Comment (Aug. 10, 2016), http:// yalejreg.com/nc/the-aftermath-of-united-states-v-texas-rediscovering-deferred-action-by-shoba-sivaprasad-wadhia/. So rather than court contempt of the Fifth Circuit’s injunction (which, as we said, stands because of the decision of the Supreme Court not to overrule it), DHS/US-CIS has decided not to grant deferred action in cases such as Robledo-Soto’s.

Oddly, between the Fifth Circuit’s decision in Texas v. United States and the Supreme Court’s grant of certiorari, Rob-ledo-Soto’s lawyer wrote the Department of Homeland Security requesting U.S. Immigration and Customs Enforcement (ICE) “to review [his client’s] case and administratively close or terminate proceedings so that he can apply with [he means ‘to’] USCIS for deferred action for parents [of American citizen children].” But no one at present can apply to USCIS for such relief with any hope of success, because of its- decision not to grant deferred action in cases such as this.- And there is no indication that Robledo-Soto’s lawyer altered his request after learning (if he did learn) that USCIS could give his client no relief.

It is conceivable that in' the exercise of its prosecutorial discretion DHS could simply drop its removal proceeding against Robledo-Soto. Remember that the reason that he requested a continuance was to give him time to expunge his criminal record in the hope that the Department of Homeland Security would as a result look more favorably on his plea for relief. Yet having succeeded in expunging his drunk-driving conviction and having informed DHS of his newly clean record, he has not succeeded in dissuading the Department from seeking his removal, because the Department is committed to the ruling by the Fifth Circuit in Texas v. United States. That leaves us with no authority to grant him any relief that will prevent his removal, and therefore his petition for review is moot, see Qureshi v. Gonzales, 442 F.3d 985, 988 (7th Cir. 2006) — and so it must be, and it hereby is, dismissed.

SYKES, Circuit Judge,

with whom KANNE, Circuit Judge, joins, concurring in the judgment.

Antonio Robledo-Soto, a Mexican citizen, sought to postpone his removal proceedings so that he could obtain documents to expunge a drunk-driving conviction and thereby convince the Department of Homeland Security to cease its effort to remove him. The immigration judge concluded that there was no relief he could grant and entered an order of removal, a decision upheld by the Board of Immigration Appeals.

Robledo-Soto petitioned for review, arguing that the immigration judge or the Board should have granted a continuance to allow time for him to expunge his conviction and then ask DHS to favorably exercise its discretion not to remove him. While his case has been pending in this court, his expungement motion was granted. But DHS has determined that although the drunk-driving conviction has now been expunged, it will not exercise its discretion to drop the case. In light of that determination, the Department of Justice argues that no meaningful relief can be ordered and the case is moot. See Qureshi v. Gonzales, 442 F.3d 985, 988 (7th Cir. 2006). Robledo-Soto agrees. Accepting that concession, the petition for review must be dismissed as moot.


author: WILLIAMS, Circuit Judge.

text:
    John BAUGH, by and through his Wife and Next Friend, Sharon Baugh, Plaintiff-Appellee, v. CUPRUM S.A. DE C.V., Defendant-Appellant.
    No. 16-1106
    United States Court of Appeals, Seventh Circuit.
    Argued November 2, 2016
    Decided January 11, 2017

      David C. Wise, Attorney, Burke, Wise, Mahoney & Kaveny, Chicago, IL, for Plaintiff-Appellee.
    Melissa A. Murphy-Petros, Attorney, Wilson Elser Moskowitz Edelman & Dicker LLP, Chicago, IL, for Defendant-Appellant.
    Before WOOD, Chief Judge, and POSNER and WILLIAMS, Circuit Judges.
   WILLIAMS, Circuit Judge.

John Baugh fell off a ladder while replacing gutter screws and suffered a traumatic brain injury. He sued the ladder’s manufacturer, Cuprum, alleging that the ladder had unexpectedly collapsed and caused him to fall because it had been defectively designed. At the conclusion of trial, a jury, finding in Baugh’s favor, awarded him over $11 million in damages. Following the verdict, Cuprum filed a motion for a new trial and for judgment as a matter of law, but the district judge denied it.

On appeal, Cuprum contends that this denial was improper. Cuprum maintains that it was entitled to a new trial primarily because the district judge erroneously permitted two of Baugh’s experts to testify about critical issues. But both experts’ methodologies were adequate, and Cup-rum’s various complaints affected the weight of the experts’ testimony rather than its admissibility. In addition, Cuprum contends that it was entitled to judgment as a matter of law because Baugh had failed to prove that the ladder contained an unreasonably dangerous condition and that this condition was the most probable cause of the accident. When viewing the evidence in the light most favorable to Baugh, however, we conclude that a reasonable jury could have found in Baugh’s favor. Baugh supplied sufficient evidence demonstrating that a feasible alternative existed, and that the accident was more likely attributable to the ladder’s original defective design than to an improper use of the ladder. So we affirm the district court’s judgment in Baugh’s favor.

I. BACKGROUND

John Baugh fell off a five-foot, A-frame aluminum ladder while replacing several rusty screws in a gutter on his garage. Baugh sustained significant bruising and bleeding in the frontal area of his brain, which caused him to suffer seizures, dementia, and quadriplegia and inhibited his ability to perform myriad routine functions such as taking medicine orally, urinating without a catheter, recognizing shapes and angles, and reading a one-paragraph excerpt and answering simple questions like who, what, and where. On his behalf, Baugh’s wife Sharon sued Cuprum, a Mexico-based company that designed and manufactured the ladder, alleging a design defect under strict liability and negligence theories. Baugh argued that the ladder was not designed to be strong enough to accommodate the weight of individuals at or near 200 pounds, and that a feasible alternate design would have prevented the accident. But Cuprum argued that the ladder was designed to adequately support the weight of individuals weighing up to 200 pounds, and that the accident occurred because Baugh climbed too high on the ladder and stood on its fourth step and pail shelf, neither of which were intended to be stood on. (Pail shelves are often square in shape, attached near the top of ladders, and used to hold paint cans and other painting equipment.)

The parties proceeded to trial and a jury found in Cuprum’s favor. However, we remanded the case for a new trial because the exemplar ladder, which had the same core specifications as Baugh’s, was improperly given to jurors during jury deliberations. See generally Baugh ex rel. Baugh v. Cuprum S.A. de C.V., 730 F.3d 701 (7th Cir. 2013).

During the second trial, Baugh elicited testimony from two of his neighbors and a paramedic, all of whom arrived to the scene post-accident. However, Baugh— the only eyewitness to the accident — did not testify at either trial, we assume, because of the severity of his injuries. Baugh also elicited testimony from a number of experts relating to the cause of the accident and the severity of his resulting physical injuries. Notably, Dr. Jack Vinson, a mechanical engineer, testified about the ladder’s design. Relying on handwritten calculations based on centuries-old mathematics principles, Dr. Vinson opined that the ladder could withstand up to 35,000 pounds per square inch (PSI), and that a 200-pound person could exert as many as 97,700 PSI while using the ladder. Dr. Vinson opined further that the ladder could have accommodated a 200-pound person if it had thicker legs and thicker and longer gussets. (Gussets are metal bars that provide bracing support by connecting the leg of a ladder to the first step.)

Kevin Smith, a mechanical engineer, supplied causation testimony on Baugh’s behalf. He opined that: (i) Baugh was facing the house and the gutter as he climbed the ladder (which was the intended use); (ii) all four of the ladder’s feet were in Baugh’s concrete driveway; (iii) Baugh was standing on the third step of the ladder (the highest intended step); (iv) the ladder tipped to the right; (v) the shorter-than-necessary gusset on the ladder’s right front side could not support Baugh’s weight, thereby causing the ladder’s right front leg to fail and Baugh to fall onto his concrete driveway; and (vi) a longer gusset would have prevented the accident.

Cuprum elicited contrary testimony regarding design and causation. Dr. Michael Stevenson, a metallurgical engineer, opined that a 250-pound person could never exert more than 24,000 PSI — well within the ladder’s range of tolerance. Dr. Stevenson reached this conclusion using the computer-based “finite element analysis” method. In addition, Michael Van Bree, a mechanical engineer, opined that: (i) Baugh was facing away from the house and gutter as he climbed the ladder (an improper use); (ii) two of the ladder’s feet were in the driveway, while the other two were in an adjacent flower bed; (iii) the ladder tipped to the left while Baugh was straddling it, with one foot on the pail shelf and the other on the ladder’s fourth step (both improper uses); and (iv) Baugh lost balance, causing the ladder to tip over and Baugh to fall into the flower bed.

The jury ultimately found in Baugh’s favor and awarded him $11 million. The district judge denied Cuprum’s motion for judgment as a matter of law and, alternatively, for a new trial. This appeal followed.

II. ANALYSIS

A. Cuprum Not Entitled to a New Trial

On appeal, Cuprum maintains that the district judge erred in denying its motion for a new trial. We review such denials for abuse of discretion and where, as here, the moving party alleges an erroneous admission of evidence during trial, “we will grant a new trial only if the error had a substantial influence over the jury and the result reached was inconsistent with substantial justice.” Saathoff v. Davis, 826 F.3d 925, 930 (7th Cir. 2016).

Cuprum’s principal justification for a new trial concerns the district judge’s denial of several of its motions in limine (MILs) concerning Dr. Vinson, Baugh’s design expert, and Smith, Baugh’s causation expert. Although none of the MILs explicitly cited Federal Rule of Evidence 702 or Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 113 S.Ct. 2786, 125 L,Ed.2d 469 (1993), their substantive arguments were unequivocally rooted in both— specifically, that Dr. Vinson’s alternative-design opinions were unreliable, and that Smith was unqualified and proffered causation opinions based on unreliable methodology. Indeed, the MILs repeatedly used these Rule 702/Daubert buzzwords and cited multiple cases applying the related framework. So the district judge should have treated the MILs as invoking Rule 702 and Daubert. And it appears that he did—at least with regard to reliability— since he denied the MILs on the ground that “there is nothing about the witnesses’ opinions that falls outside the realm of acceptable science.”

However, the problem with that conclusion was that it was not accompanied by any further analysis regarding the considerations that animated the judge’s ruling. See, e.g., Metavante Corp. v. Emigrant Sav. Bank, 619 F.3d 748, 760 (7th Cir. 2010) (observing that a proper Daubert inquiry cannot be comprised solely of con-clusory statements regarding admissibility). Nor was this deficiency remedied by either of the district judges who were subsequently assigned to the case, as both simply adopted the original judge’s conclusion without elaboration. So rather than reviewing the denial of the MILs for abuse of discretion, as we typically do when a judge has adequately applied the Rule 702/Daubert framework, we review the denial here de novo. See Hall v. Flannery, 840 F.3d 922, 926 (7th Cir. 2016) (citations omitted).

1. Dr. Vinson’s Testimony Was Admissible

On appeal, Cuprum challenges the methodology that led Dr. Vinson to opine that a design featuring thicker legs and a thicker and longer gusset would have prevented Baugh’s accident. When determining the reliability of a qualified expert’s testimony under Daubert, courts are to consider, among other things: (1) whether the proffered theory can be and has been tested; (2) whether the theory has been subjected to peer review; (3) whether the theory has been evaluated in light of potential rates of error; and (4) whether the theory has been accepted in the relevant scientific community. Smith v. Ford Motor Co., 215 F.3d 713, 719 (7th Cir. 2000). We have emphasized that “no single factor is either required in the analysis or disposi-tive as to its outcome.” Id.-, accord Kumho Tires Co. v. Carmichael, 526 U.S. 137, 151-52, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999).

Cuprum attacks Dr. Vinson’s alternate-design opinion on several grounds. Its primary criticism is that Dr. Vinson failed to test this alternative design, either with a specially made exemplar ladder or using finite element analysis (the latter being the preferred method of Dr. Stevenson, Cup-rum’s design expert). But Dr. Vinson did test his alternative design, using centuries-old mathematics principles that Dr. Stevenson himself conceded can be used to analyze stress in a ladder. The fact that these calculations were not accompanied with live testing of an exemplar ladder is irrelevant to Rule 702 and Daubert. See Lapsley v. Xtek, Inc., 689 F.3d 802, 815-16 (7th Cir. 2012) (“[P]hysical re-creations of industrial accidents are not always feasible or prudent.... A mathematical or computer model is a perfectly acceptable form of test” for a proposed alternative design.); Schmude v. Tricam Indus., 556 F.3d 624, 626 (7th Cir. 2009) (rejecting claim that plaintiffs expert should have been barred from testifying due to failure to conduct live recreation of accident, and discussing defendant’s dubious re-creation attempt); Cummins v. Lyle Indus., 93 F.3d 362, 369 (7th Cir. 1996) (“We do not mean to suggest ... that hands-on testing is an absolute prerequisite to the admission of expert testimony.”).

Cuprum also claims that Dr. Vinson’s alternative design is deficient because it was not subjected to peer review. But Cuprum only claims that one of Dr. Vinson’s three papers featuring his design went unreviewed, whereas Dr. Vinson testified (without contradiction) that the other two papers were in fact peer reviewed. And even assuming none of the three papers were reviewed, Dr. Vinson “was merely applying well-established engineering techniques to the particular materials at issue in this case, ... [so] his failure to submit those techniques to peer review establishes nothing about their reliability.” Smith, 215 F.3d at 720. This reasoning applies equally to Cuprum’s complaint that Dr. Vinson’s alternative design has not been adopted by the ladder industry. And the significance of these two complaints is further diminished by the fact that Dr. Stevenson reviewed the calculations that Dr. Vinson shared with the jury and found only one error — one that neither Dr. Stevenson nor Cuprum claims was significant enough to cast doubt on any of Dr. Vinson’s conclusions.

Cuprum’s reliance on Dhillon v. Crown Controls, 269 F.3d 865 (7th Cir. 2001), is misplaced. In Dhillon, we concluded that the district judge did not abuse his discretion in finding the challenged expert’s testimony to be inadmissible. But unlike Dr. Vinson, most of the experts in Dhillon had failed to create or test their proposed alternative design, and the one expert who did conduct testing did so after forming his opinion and was unable to bridge the tests and the opinions. Id. at 869-70. To be sure, this latter expert bears some similarity to Dr. Vinson in that the American National Standards Institute (ANSI) had not expressly embraced either experts’ bottom-line design. Nevertheless, the Dhillon expert is distinguishable since ANSI rejected his design on two separate occasions, whereas ANSI’s review of Dr. Vinson’s design had never reached completion. Nor do we find that ANSI’s stamp of approval, standing alone, is a dispositive consideration.

Finally, Cuprum suggests that Dr. Vinson lacked the requisite qualifications to opine on ladder design, due to his advanced age (he received his bachelor’s degree in 1952 and his Ph.D. in 1961) and his concessions at trial that he had never designed a ladder for commercial use or worked in the ladder industry. But it appears that Cuprum forfeited this argument by failing to raise it in a motion in limine, an objection at trial, or in its post-trial motions. See, e.g., Pole v. Randolph, 570 F.3d 922, 937-38 (7th Cir. 2009).

Forfeiture aside, the claim lacks merit. For one, Cuprum fails to explain how Dr. Vinson’s age and lack of experience within the ladder industry render him unqualified to opine about PSI thresholds using well-established mathematical principles. Cf. Doe v. Cutter Biological, Inc., 971 F.2d 375, 385 (9th Cir. 1992) (“Ordinarily, courts impose no requirement that an expert be a specialist in a given field, although there may be a requirement that he or she be of a certain profession, such as a doctor.”). Nor are Dr. Vinson's purported experiential shortcomings evidenced in the record. Notably, Dr. Vinson studied mechanical engineering at Cornell University, Cambridge University, and the University of Pennsylvania. He is a professor emeritus of mechanical and aerospace engineering at the University of Delaware, is a member of the American Society of Testing Materials, and has served on the editorial boards of Advanced Composites and Materials Journal and Advanced Materials and Structures. He has also coauthored several articles relevant to aluminum step ladders entitled, “Experimental Evaluation of the Structural Characteristics of Extruded Aluminum Step Ladders,” “Failure Analysis of Step Ladders Manufactured from Extruded Aluminum,” and “Fiberglass and Aluminum Step Ladder Performance Under Dynamic Loading Conditions.” In addition, Dr. Vinson testified that his calculations are rooted in well-established principles that have been used for centuries to help assemble more complicated structures such as the Eiffel Tower. So Dr. Vinson’s qualifications wei-e adequate, and the district judge did not err in permitting him to testify about his proposed alternative design.

2. Smith’s Testimony Was Admissible

Cuprum also used MILs in an attempt to restrict the scope of Smith’s trial testimony. For example, Cuprum asked the district judge to bar Smith from testifying about the results of the “drop” test he performed on two six-foot, A-frame ladders designed and manufactured by Cup-rum. (According to Cuprum, “the ‘drop’ test assesses the strength and durability of the ladder when it is dropped from different heights for purposes of determining how much the ladder could be damaged during handling and transport.”) Cuprum argues these tests were not reliable because they were not performed in the manner mandated by ANSI. Smith dropped (i.e., tested) each ladder multiple times, whereas ANSI stipulates that a ladder need only be dropped once. But Cuprum does not explain why this deviation demonstrates unreliability, nor is it obvious to us. The record indicates that while the ANSI-based standard requires a single drop, multiple drops are not prohibited. Moreover, it seems entirely plausible that, in real life, ladders may be dropped or otherwise subjected to wear and tear on multiple occasions before an incident occurs. So Smith’s deviation from ANSI in this way was not problematic.

Cuprum similarly complains that Smith used heavier loads for the “cantilever bend” test than ANSI requires — as high as 190 pounds, rather than the mandated 150 pounds. (Cuprum explains that “[t]he ‘cantilever bend’ test is conducted by placing loads of various amounts on the ladder to see if the section of the leg that is cantilevered out from the first step to the foot will bend.”) Again, the missing link in Cup-rum’s argument is an explanation of why this deviation speaks to reliability. If a ladder is expressly meant to support individuals weighing as much as 200 pounds, it strikes us as entirely reasonable that loads exceeding 150 pounds would be used to test the ladder’s strength. Cuprum has proven nothing to the contrary.

Finally, Cuprum sought to bar Smith from testifying about the accident and the ladder’s design on the ground that he lacked the requisite factual basis to support his opinions. According to Cup-rum, Smith knew so little about what actually occurred immediately before the accident — for example, Smith could not say with certainty where on the ladder Baugh had been positioned when the accident occurred, and whether he was climbing, standing, or descending — that the opinions he supplied were inadmissible bottom-line, off-the-cuff statements. This lack of knowledge is critical, Cuprum claims, because it means that Baugh cannot prove that the most probable cause of the accident was a design defect that manifested while Baugh was using the ladder as directed.

We disagree. In order to reach his opinions, Smith reviewed, among other things, photographs of the scene of the accident with overlaid measurements, transcripts of deposition testimony supplied by witnesses to the aftermath of the accident, the actual ladder that Baugh had used, and an exemplar ladder. That supplied Smith with enough facts to render his opinion. Moreover, the mere fact that Smith could not testify about certain facts relating to the accident with absolute certainty does not render his opinions unreliable or irrelevant. See Manpower, Inc. v. Ins. Co. of Pa., 732 F.3d 796, 806 (7th Cir. 2013) (“Reliability ... is primarily a question of the validity of the methodology employed by an expert, not the quality of the data used in applying the methodology or the conclusions produced.”); Stollings v. Ryobi Techs., Inc., 725 F.3d 753, 768 (7th Cir. 2013) (“[EJxpert testimony does not need to be conclusive to be relevant.”). Indeed, it is often the case that experts reach conflicting conclusions based on applying different but nevertheless reliable methodologies to a set of partially known facts. The determination of which opinion (if any) identifies the most probable cause of an injury is typically a question of weight, not reliability. Cf. Smith v. Ford Motor Co., 215 F.3d 713, 718 (7th Cir. 2000) (“The soundness of the factual underpinnings of the expert’s analysis and the correctness of the expert’s conclusions based on that analysis are factual matters to be determined by the trier of fact_”).

3. Other Arguments Lack Merit

Cuprum identifies several non-Daubert-related grounds that supposedly warrant a new trial. It claims, for example, that the district judge erred in prohibiting Cuprum from asking its director of product safety and engineering, Thomas Schmitt, to explain whether Cuprum had ever changed the gusset length in the type of ladder at issue based on a fear of collapse. However, Cuprum has failed to demonstrate precisely how this testimony is relevant to the case, stating in concluso-ry fashion that the testimony is somehow “relevant to plaintiffs theory of alternative design, which focused solely on the gusset.” And as Baugh notes, Schmitt was precluded from testifying because he lacked personal knowledge about the subject. Cuprum does not dispute the validity of that factual predicate.

Cuprum also contends that the district judge erred in overruling two objections made by Cuprum during closing statements. The first objection concerned Baugh’s statement that the evidence indicated the ladder’s right front leg was capable of bending inward while the ladder’s four feet were on the driveway. Cuprum contends that this statement was not anchored to any evidence presented at trial, but that would be true only if one ignores the testimony supplied by Dr. Vinson and (especially) Smith. And since the testimony from these experts was admissible, there was adequate evidence to support Baugh’s statement, and the district judge did not abuse his discretion in overruling the objection. And even if an abuse somehow occurred, it was rendered harmless by the judge’s curative instruction to the jury that closing statements are not facts, notwithstanding Cuprum’s conclusory claim to the contrary. See United States v. Berkowitz, 927 F.2d 1376,1384 (7th Cir. 1991) (“perfunctory and undeveloped arguments, and arguments that are unsupported by pertinent authority, are waived — ”).

The second statement that Cup-rum objected to at closing concerned Baugh’s use of already-accrued medical bills to calculate future medical costs. According to Cuprum, the past bills were an inappropriate comparator because “most of [Baugh]’s past damages were related to the acute care he received during the first two years after the accident and so will not be incurred again.” But Cuprum fails to cite anything in the record to support this assertion, and, in any case, Baugh elicited testimony to the contrary. For example, Dr. Gary Yarkony, a specialist in physical medicine and rehabilitation, testified that Baugh is partially paralyzed in all four extremities, has diminished cognitive function, and will need for the remainder of his life round-the-clock nursing care and access to durable medical equipment such as a motorized wheel chair and a lift to transfer him into and out of bed. Dr. Yarkony also opined that Baugh would need “additional medical care [beyond] just your routine internal medicine care” such as “rehab doctors, neurologists, [and] foot care.” In short, there was ample evidence indicating that Baugh’s injuries were permanent and would require significant medical treatment indefinitely.

Cuprum also claims that by calculating the average annual cost of Baugh’s past medical expenses and by multiplying it by Baugh’s remaining life expectancy, Baugh improperly sought so-called “per diem” damages. Cuprum directs our attention to Caley v. Manicke, in which the Illinois Supreme Court held that it had been improper for counsel to suggest during closing statements that certain damages should be calculated using a rigid cost-per-day mathematical formula. 24 Ill.2d 390, 182 N.E.2d 206, 207-09 (1962). However, Coley was only concerned with damages relating to pain and suffering, whereas Baugh’s statement at closing referenced damages relating to medical costs — which often are amenable to per diem calculations due to the repetitive nature of expenses such as medical checkups, tests, and supplies.

Finally, Cuprum claims that the verdict is “against the manifest weight of the evidence, excessive, or otherwise unreasonable.” This claim is easily dispatched, however, since it merely incorporates, without explanation, the section of Cuprum’s opening appellate brief concerning the Rule 702/Daubert issues that we rejected above. Cf. United States v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991) (“A skeletal ‘argument,’ really nothing more than an assertion, does not preserve a claim.”). Nor has Cup-rum demonstrated cumulative error, since it has failed to identify any error that individually or in combination with others deprived him of a fair trial. See, e.g., United States v. Powell, 652 F.3d 702, 706 (7th Cir. 2011) (Cumulative error requires proof “(1) that multiple errors occurred at trial; and (2) those errors, in the context of the entire trial, were so severe as to have rendered his trial fundamentally unfair.”). So the district judge did not abuse his discretion in declining to grant Cuprum a new trial.

B. Cuprum Not Entitled to Judgment as a Matter of Law

We review the district judge’s denial of Cuprum’s motion for judgment as a matter of law de novo, and view the evidence in the light most favorable to Baugh as the non-moving party. Venson v. Altamirano, 749 F.3d 641, 646 (7th Cir. 2014). We will reverse the district judge’s decision only if no rational jury could have found in Baugh’s favor. Id. Cuprum claims that it is entitled to judgment as a matter of law because Baugh failed to prove two of the requisite elements of a defective design claim — an unreasonably dangerous condition and causation. We address each issue in turn.

1. Unreasonably Dangerous Condition

As noted above, Baugh asserted design defect under both strict liability and negligence theories. The jury was instructed on both claims but returned a general verdict in Baugh’s favor, so it is unclear whether the verdict was based on one or both of the theories. But this uncertainty is unimportant, since, as discussed below, Cuprum’s arguments implicate both theories.

Under Illinois law — which the parties agree applies here — a plaintiff alleging defective design under a strict product liability theory must prove that (i) the product has an unreasonably dangerous condition, (ii) the condition existed when the product left the defendant’s control, and (iii) the condition caused the plaintiff to suffer an injury. E.g., Mikolajczyk v. Ford Motor Co., 231 Ill.2d 516, 327 Ill.Dec. 1, 901 N.E.2d 329, 345 (2008) (citations omitted). A product may be unreasonably dangerous if it failed to perform as safely as an ordinary consumer would expect (the “consumer-expectation test”), or if the product’s risks outweigh its benefits (the “risk-utility test”). Id., 327 Ill.Dec. 1, 901 N.E.2d at 336 (citing Lamkin v. Towner, 180 Ill.App.3d 755, 129 Ill.Dec. 609, 536 N.E.2d 449, 457 (1990)).

The consumer-expectation test is a simpler inquiry than the risk-utility test, as the latter asks courts to consider the following non-exhaustive list of factors:

the availability and feasibility of alternate designs at the time of the product’s manufacture; ... [whether] the design used ... conformed] to the design standards in the industry, design guidelines provided by an authoritative voluntary ■organization, or design criteria set by legislation or governmental regulation!;] ... the utility of the product to the user and to the public as a whole[;] the safety aspects of the product including the likelihood that it will cause injury and the probable seriousness of the injury!;] and the manufacturer’s ability to eliminate the unsafe character of the product without impairing its usefulness or making it too expensive to maintain its utility.

Jablonski v. Ford Motor Co., 353 Ill.Dec. 327, 955 N.E.2d 1138,1154 (2011) (citations omitted).

Like strict liability, negligence focuses on the allegedly unreasonably dangerous condition of a product. Calles v. ScriptoTokai Corp., 224 Ill.2d 247, 309 Ill.Dec. 383, 864 N.E.2d 249, 263-64 (2007). For some time, Illinois courts have differentiated between the two theories on the ground that negligence alone inquires into the defendant’s alleged fault — i.e., whether the defendant breached its “nondelegable duty to design reasonably safe products” by failing to exercise reasonable care. Id. In practice, however, this distinction may sometimes be illusory, as the Illinois Supreme Court has recently observed that “risk-utility balancing remains operative in determining whether a defendant’s conduct is reasonable in a negligent-design case.” Jablonski, 353 Ill.Dec. 327, 955 N.E.2d at 1154-55 (referencing approvingly the conclusion of numerous commentators that “the balancing test developed for strict liability claims ... is essentially identical to the test applied in determining whether a defendant’s conduct in designing a product is reasonable”).

Here, Cuprum implicates both theories by arguing that Baugh failed to prove the existence of an alternate design at trial, a frequent prerequisite for liability under the risk-utility test and one that Baugh pursued in this case. In doing so, however, Cuprum relies primarily on the same arguments rejected above regarding the admissibility of Dr. Vinson’s methodology — specifically, that Dr. Vinson failed to test his alternative design, that this design was not subjected to peer review or review by ANSI, that the design had not been embraced by the ladder industry, and that Dr. Vinson was unqualified to opine about alternative designs. Without those arguments, Cuprum is left with its contention that its own expert, Dr. Stevenson, relied on superior methodology in opining that the ladder possessed the requisite structural strength to support an individual like Baugh (i.e., that it did not contain an unreasonably dangerous condition). But this argument cannot carry the day for Cup-rum. Cuprum had ample opportunity to enhance Dr. Stevenson’s credibility by using Dr. Stevenson to highlight the strengths of finite element analysis and the shortcomings of Dr. Vinson’s calculations, and by cross examining Dr. Vinson directly. All of this occurred in front of the jury, and based on the evidence presented, the jury found Dr. Vinson’s approach more convincing and entered a verdict in Baugh’s favor.

We reject the notion that no reasonable jury could have concluded the same: Dr. Vinson adequately explained why a ladder like Baugh’s could fail when used as instructed, how the legs and gussets could be modified to prevent such a failure, and why the finite element analysis on which Dr. Stevenson relied was an inferior method of calculating the varying levels of force users apply on ladders. So Cuprum was not entitled to judgment as a matter of law on the unreasonably dangerous condition element. See, e.g., Gicla v. United States, 572 F.3d 407, 414 (7th Cir. 2009) (observing that the case “presented a classic battle of the experts ... [that] called upon the factfinder to determine what weight and credibility to give to each expert”); Wipf v. Kowalski, 519 F.3d 380, 385 (7th Cir. 2008) (“[I]n a case of dueling experts ... it is left to the trier of fact, not the reviewing court, to decide how to weigh the competing expert testimony.”); Spesco, Inc. v. Gen. Elec. Co., 719 F.2d 233, 237-38 (7th Cir. 1983) (“[T]his case presents a typical example of opposing experts offering conflicting views to the jury.... It is within the province of the jury to determine which of two contradictory expert statements is deserving of credit.”),

2. Causation

Cuprum also claims that it is entitled to judgment as a matter of law because Baugh failed to prove causation. When relying on circumstantial evidence to establish causation under Illinois law, as Baugh does here, “the conclusion sought must be more than speculative; rather the conclusion must be the only probable conclusion.” Williams v. Chi. Bd. of Educ., 267 Ill.App.3d 446, 204 Ill.Dec. 863, 642 N.E.2d 764, 768 (1994) (citations omitted). Unsurprisingly, this means that a fact “cannot be inferred from the evidence when the existence of another fact inconsistent with the first can be inferred with equal certainty from the same evidence.” Pyne v. Witmer, 129 Ill.2d 351,135 Ill.Dec. 557, 543 N.E.2d 1304, 1313 (1989) (citation omitted). However, circumstantial evidence need not go so far as to “exclude all other possible inferences” to show that a causal link exists. Id.

Here, we conclude that a rational fact finder could conclude that, based on a preponderance of the evidence, the alleged defect in the ladder (and not ladder misuse) was the most probable cause of the accident. The testing that Smith conducted provided the jury with sufficient information to conclude that the damage to the ladder likely occurred while Baugh was using the ladder properly. Moreover, the fact that both Baugh and the ladder were found in the driveway suggests that the ladder fell into the driveway (Baugh’s theory) rather than into the adjacent flower bed (Cuprum’s theory). Indeed, as Cuprum concedes, no dirt, vegetation, or anything else was found on Baugh’s body or clothes that suggested he fell into the flower bed, and Baugh’s profound post-accident disorientation — non-eommunicative and non-responsive to his rescuers — makes it unlikely that he moved both himself and the ladder to the driveway after the fall. And after reviewing Cuprum’s videotaped “reenactment” of the accident, the jury could have reasonably concluded that Baugh — 65 years old and 224 pounds at the time— likely did not attempt to straddle the ladder in the physically awkward fashion that Cuprum suggests.

Cuprum raises a number of arguments in support of its position that ladder failure is not the most probable cause, but none are persuasive — especially when viewing the evidence in the light most favorable to Baugh, as we must. For example, Cuprum claims that Vinson and Smith disagreed about how the ladder’s design caused the accident and how the ladder’s left leg and pail shelf became damaged. But this misrepresents the two men’s testimony; because Vinson’s opinions on these topics ranged from equivocal to entirely absent, there was no meaningful disagreement between him and Smith.

Cuprum also criticizes Baugh’s experts for not knowing the specific PSI that Baugh was exerting on the ladder immediately before the accident. But we fail to see why this absence is dispositive. Vinson testified that a 200-pound individual could exert more than twice the PSI that the ladder was designed to withstand, and Smith opined that the damage to and post-accident location of the ladder were consistent with failure and tip-over. That seems sufficient. And it is unsurprising that the specific PSI is unknown, since no expert on either side could testify with certainty as to Baugh’s specific location on the ladder when the accident occurred.

Another complaint of Cuprum’s is that Baugh could not have easily reached the gutter screws he was replacing by standing on the ladder’s first, second, or third steps — the only proper steps for standing. In support, Cuprum notes that Van Bree, who is six feet tall, could barely touch one of the screws with his hand, and that Baugh is even shorter than Van Bree, at five feet ten inches. However, a reasonable jury could discount this testimony on several grounds — for example, that Van Bree’s superior height does not establish that his standing reach was longer than Baugh’s, or more importantly, that the use of a screwdriver could have given Baugh the few inches necessary to make the screws more comfortably reachable.

And while Cuprum claims that Van Bree’s theory is the only one that accounts for all of the damage to Baugh’s ladder, that overlooks several criticisms that the jury could have found compelling. For example, Van Bree opined that the ladder’s right front leg bent not because of a design failure but because Baugh had fallen on it after the ladder tipped over. In support of this theory, Van Bree noted that he dropped a sandbag onto an exemplar ladder, but the jury could have reasonably found that the bag could not replicate the effects of a human body. Similarly, when asked to explain how the right front leg could have been bent down by Baugh falling on it but still ended up on the ground with the bend pointing up, Van Bree opined that the entire ladder had flipped over 180° after Baugh fell onto it. The jury was entitled to view this opinion with skepticism. And although Van Bree opined that the pail shelf was damaged by Baugh standing on it, there was no evidence ruling out the possibility that the shelf had been damaged before the accident. So Cuprum was not entitled to judgment as a matter of law on causation.

III. CONCLUSION

The judgment of the district court is Affirmed.

      . Baugh was five feet five inches tall and weighed 224 pounds approximately six weeks before the accident. However, neither party contends that Baugh’s weight is relevant, so we will not address the issue further.


author: SYKES, Circuit Judge.

text:
    Stephen H. PERRON and the United States Bankruptcy Trustee for The Southern District of Indiana ON BEHALF OF Christine M. JACKSON, Plaintiffs-Appellants, v. J.P. MORGAN CHASE BANK, N.A., Defendant-Appellee.
    No. 15-2206
    United States Court of Appeals, Seventh Circuit.
    Decided January 11, 2017

      Ryan R. Frasher, Attorney, Indianapolis, IN, for Plaintiffs-Appellants.
    Christina M. Bruno, Attorney, David J. Jurkiewicz, Attorney, Bose McKinney & Evans, LLP, Indianapolis, IN, for Defendant-Appellee.
    Before EASTERBROOK, WILLIAMS, and SYKES, Circuit Judges.
   SYKES, Circuit Judge.

Stephen Perron and Christine Jackson owned their home in Indianapolis subject to a note and mortgage serviced by J.P. Morgan Chase Bank. In 2012 the couple divorced, ending their 25-year marriage. They blame Chase for contributing to the collapse of their marriage by failing to comply with its obligations under the Real Estate Settlement Procedures Act (“RES-PA”), 12 U.S.C. §§ 2601-2617.

RE SPA requires mortgage servicers to correct account errors and disclose account information when a borrower sends a written request for information. In 2011 Per-ron and Jackson sent two such letters accusing Chase of erroneously paying the wrong homeowner’s insurer using $1,422 from their escrow account. The mistake was their own fault; they had switched insurers without telling Chase. When the bank learned of the change, it promptly paid the new insurer and informed the couple that their old insurer would send a refund check. The bank also told them to forward the refund check in order to replenish the depleted escrow.

They didn’t. When the refund came, they pocketed the money instead. So the bank adjusted their monthly mortgage payment to make up the shortfall. When the couple refused to pay the higher amount, the mortgage went into default. Instead of curing, they sent Chase two letters requesting information under RES-PA and demanding that the bank reimburse their escrow. In response Chase sent a complete account history, including a detailed escrow statement.

The couple then sued Chase claiming that its response was inadequate under RESPA and caused more than $300,000 in damages — including the loss of their marriage. They tacked on a claim for breach of the implied covenant of good faith and fair dealing. The district judge entered summary judgment for Chase.

We affirm. Chase’s response almost perfectly complied with its RE SPA duties. To the extent that any requested information was missing, Perron and Jackson suffered no actual damages and thus have no viable claim. Nor did Chase breach the duty of good faith and fair dealing, assuming that Indiana would recognize the implied covenant in this context.

I. Background

Perron and Jackson, a married couple, owned their home in Indianapolis subject to a 2003 note and mortgage. Chase became their loan servicer in 2005. Perron is a retired criminal investigator for the IRS; Jackson is an attorney who represents consumers fighting loan servicers. The dispute arises out of complications with the couple’s mortgage. The story begins in 2009 with their failure to give Chase notice when they changed homeowner’s insurers.

Like many mortgage servicers, Chase had the responsibility of paying the couple’s home-insurance premiums from their escrow account. In March 2009 Perron and Jackson changed their home-insurance provider from Allstate to Homesite Insurance without telling Chase. By that time, however, the bank had already paid Allstate’s $1,422 premium for that year. When the bank independently learned of the change, it promptly paid Homesite’s premium from the escrow account. Chase then sent the couple a letter explaining the situation and instructing them to remit the refund check from Allstate to replenish their escrow.

Perron and Jackson received a refund check from Allstate but ignored Chase’s instructions and deposited the money into a non-Chase account. This created an estimated escrow shortfall of $802.28 for the upcoming year. To make up the deficiency, Chase notified the couple that their monthly mortgage payment would rise from $1,432.15 to $1,499.01 — an increase of $66.86 per month. The couple ignored this as well. From February 2010 to November 2010, they paid Chase only $1,469.20 each month. (The amount is puzzling. It’s lower than the 2010 required monthly payment yet higher than the 2009 monthly payments. Perron and Jackson haven’t explained why they paid this sum.)

In November 2010 Perron and Jackson reviewed their account information and decided that Chase had miscalculated their 2010 mortgage payments because of the “erroneous” escrow payment to Allstate in 2009 — apparently forgetting that they had received and pocketed the refund check from Allstate despite Chase’s instructions. To correct this “error,” they called Chase and said they would remit $1,399.23 for their December 2010 mortgage payment— about $100 less than the required payment.

Chase received the partial payment and held it “in suspense” — that is, the bank held the payment without crediting it toward the couple’s payment for that month. This put the mortgage into default, which in turn automatically withdrew the couple from Chase’s electronic-payment system. Perron and Jackson apparently didn’t no-. tice the default until their January 2011 payment was also past due.

As an aside, in late December 2010 and in the ordinary course, Chase sent the couple an escrow disclosure statement — an accounting of the money flowing into and out of their escrow and a calculation of any shortfall or surplus. The disclosure statement was accompanied by an escrow refund of $250.05. The refund was owed because the couple’s property-tax liability was $418.02 less than estimated. This meant that even though the couple underpaid their mortgage by about $30 each month from February through November 2010, there was no actual shortfall in their escrow account for that year.

Back to the story of the default. In January 2011 Chase sent the couple a default notice and told them to remit a payment of $2,998.02 — the full monthly payments for December 2010 and January 2011 plus a late fee. The notice also stated that the December 2010 partial payment currently held in suspense would be credited toward the amount needed to cure. Accordingly, the amount needed to bring the mortgage current was $1,659.72.

Instead of curing, the couple sent Chase a letter dated January 10, 2011, and labeled a “qualified written request” under RE SPA. The letter accused Chase of improperly paying the $1,422 from their escrow in 2009. It also demanded that Chase return the money, undo the “improper” default, send account information, and identify the “entity” that received the $1,422 escrow payment. The letter also demanded information about the December 2010 partial payment that was held in suspense. Chase received the letter on January 25.

The bank responded by letter dated February 25 and included two attachments: a detailed accounting of the loan’s payment history and an escrow analysis from 2007 through 2010. The letter stated that “[a]ny information or document requested but not included with this package is unavailable or considered proprietary[ ] and will not be provided.” In the meantime, the deadline for the couple’s February mortgage payment came and went; they did not pay.

Dissatisfied with Chase’s response, the couple sent Chase a second letter dated April 27, also labeled a “qualified written request” under RE SPA. This letter accused Chase of failing to adequately respond to the first inquiry and reiterated many of the demands they had made in the earlier letter. It also demanded payment of $330,000 in damages. Chase treated this request as a duplicate of the first and did not respond.

This suit followed. Perron and Jackson allege that Chase violated RE SPA and the common-law duty of good faith and fair dealing. The district judge entered summary judgment for Chase, concluding that no evidence showed that the bank violated either its statutory or common-law duties.

II. Analysis

We review the judge’s summary-judgment order de novo. Kuttner v. Zaruba, 819 F.3d 970, 975 (7th Cir. 2016). Summary judgment is appropriate when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed, R. Civ. P. 54(a). We’ll take the common-law claim first because it’s quite straightforward; the RE SPA claim requires a bit more explanation.

A. Duty of Good Faith and Fair Dealing

Indiana does not recognize an implied duty of good faith and fair dealing in every contractual setting; instead, the state courts have recognized an implied covenant of good faith in the context of employment contracts, insurance contracts, and certain other limited circumstances—for example, when one counterparty stands in a fiduciary, superior, or special relationship to the other. See Old Nat’l Bank v. Kelly, 31 N.E.3d 522, 531 (Ind. Ct. App. 2015); Paul v. Home Bank SB, 953 N.E.2d 497, 504-05 (Ind. Ct. App. 2011); Allison v. Union Hosp., Inc., 883 N.E.2d 113, 123 (Ind. Ct. App. 2008), Here, the judge assumed without deciding that the good-faith duty exists in the mortgage-servicing context. We’ll proceed on the same assumption.

A party violates the implied duty of good faith and fair dealing when, though not breaching the express terms of the contract, he nonetheless behaves unreasonably or unfairly. Old Nat’l Bank, 31 N.E.3d at 531. Perron and Jackson argue that Chase breached the duty by holding their December 2010 partial payment in suspense.

This argument rests on the couple’s contention that Chase agreed to accept the reduced payment in full satisfaction of their December 2010 payment. Nothing supports that assertion. To the contrary, the mortgage contract contains standard language permitting the bank to accept a partial payment without waiving its right to enforce the terms of the loan: “Lender may accept any ,.. partial payment insufficient to bring the Loan current, without waiver of any rights.... ”

As a fallback argument, Perron and Jackson argue that Chase breached the duty of good faith by failing to apply their 2010 escrow refund toward their December 2010 mortgage payment. They’re being disingenuous here: The account was already past due by the time the escrow refund was calculated, so even if Chase had applied those funds to the account, the late fees would already have accrued. And Perron and Jackson could themselves have used the escrow refund to pay the remaining balance owed on their December 2010 payment. They did not do so. Chase had no duty to do so for them.

B. Real Estate Settlement Procedures Act

RESPA imposes certain duties on servi-cers of federally related mortgage loans. 12 U.S.C. § 2605(e); see generally id. § 2601. As relevant here, the statute requires loan servicers to promptly respond to a “qualified written request” from a borrower seeking “information related to the servicing” of his loan or alleging that his account is in error. § 2605(e)(l)(A)-(B). The Act gives borrowers a cause of action against a servicer for actual damages suffered “as a result of’ a servicer’s failure to comply with these duties. § 2605(f)(1)(A); see also Catalan v. GMAC Mort. Corp., 629 F.3d 676, 681 (7th Cir. 2011). Statutory damages of up to $2,000 are available if the borrower proves that the servicer engaged in a “pattern or practice of noncompliance” with its RESPA duties. § 2605(f)(1)(B). Successful plaintiffs may also recover costs and attorney’s fees. § 2605(f)(3).

“[T]he statutory duty to respond does not arise with respect to all inquiries or complaints from borrowers to servi-cers.” Medrano v. Flagstar Bank, FSB, 704 F.3d 661, 666 (9th Cir. 2012). Rather, the statute covers only written requests alleging an account error or seeking information relating to loan servicing. “Servicing” is a defined term, which limits the scope of the loan servicer’s duty to respond. “Servicing” means “receiving any periodic payments from a borrower pursuant to the terms of any loan, including amounts for escrow accounts ..., and making the payments of principal and interest and such other payments with respect to the amounts received from the borrower as may be required” by the terms of the loan. § 2605(i)(3). So a qualified written request can’t be used to collect information about, or allege an error in, the underlying mortgage loan. Medrano, 704 F.3d at 666-67; see also Poindexter v. Mercedes-Benz Credit Corp., 792 F.3d 406, 413-14 (4th Cir. 2015).

If a loan servicer receives a valid qualified written request, RESPA requires it to take the following actions, but only “if applicable”: (A) “make appropriate corrections in the account of the borrower”; (B) after investigating the account, “provide the borrower with a written explanation or clarification” explaining why the account is correct; or (C) “provide the borrower with ... [the] information requested by the borrower” or explain why it is “unavailable.” § 2605(e)(2)(A), (B) & (C); see also Catalan, 629 F.3d at 680. The statute also requires the servicer to provide the contact information of an employee who can provide further assistance. § 2605(e)(2)(C).

The couple’s first letter to Chase requested information about their payments to their account; Chase’s application of those payments to principle, interest, and escrow; and the recipients of escrow funds. This was enough to trigger Chase’s response duties under RESPA. Chase’s response almost perfectly complied with its duties under § 2605(e)(2). The bank provided a complete account history showing all of the couple’s monthly payments; the application of those payments to principal, interest, and escrow; escrow payments; and a complete escrow accounting. What’s missing is the identity of the insurance company that received the $1,422 escrow payment in 2009 (Allstate) and a statement of reasons why the December 2010 payment was properly held in suspense.

But of course Perron and Jackson already knew that information; the bank had supplied it in 'earlier correspondence. So even if Chase’s response fell slightly short of full compliance as a technical matter, the couple cannot show that they suffered any actual damages “as a result of’ any failure to comply with RESPA response duties. § 2605(f)(1)(A).

RESPA requires servicers to correct account errors and give requested information to borrowers. Perron and Jackson were not harmed by an uncorrected account error because there wasn’t an error in the first place. Nor were they harmed by an information blackout. They knew that Chase had paid the $1,422 from the escrow account to Allstate and why. They also knew why the December 2010 payment was held in suspense. Their second letter merely duplicated the first, and to the extent that it requested an updated accounting, there was nothing new to send (the couple hadn’t made any further payments). Simply put, Perron and Jackson weren’t harmed by being in the dark because the lights were on the whole time.

A few additional words are in order regarding the couple’s allegation that Chase’s RESPA violation contributed to the dissolution of their marriage. Emotional-distress damages are recoverable under RESPA, Catalan, 629 F.3d at 696, but the breakdown of a marriage is not the type of harm that faithful performance of RESPA duties avoids. This kind of claimed harm is far too attenuated from the alleged violation to cross the proximate-cause threshold. See Restatement (SecONd) of ToRts § 281 cmt. f (1965) (“Where the harm which in fact results is caused by the intervention of factors or forces which form no part of the recognizable risk involved in the actor’s conduct, the actor is ordinarily not liable.”).

Accordingly, to the extent that Chase’s response was technically incomplete, no reasonable fact finder could conclude that Perron and Jackson suffered any actual damages as a result of that shortcoming.

Finally, Perron and Jackson have failed to produce evidence showing a pattern or practice of RE SPA noncompliance, so they have no viable claim for statutory damages. The best they can muster is a pair of district-court cases holding Chase hable for RESPA violations. See Marais v. Chase Home Fin., LLC, 24 F.Supp.3d 712, 731 (S.D. Ohio 2014); Walton v. Chase Home Fin. LLC, No. 1:11-cv-00417-JMS-MJD, 2012 WL 6596879 (S.D. Ind. Dec. 18, 2012). Two examples of similar behavior— in different states, separated by a handful of years, and with no evidence of coordination — isn’t enough to support recovery of statutory damages.

Affirmed.

      . Because escrow accounts are used to pay variable obligations, like home-insurance premiums or property taxes, the amount needed in an escrow account for a given year is estimated. See generally 12 C.F.R. § 1024.17 (2014) (regulations governing escrow accounts).

      . Jackson has since filed for bankruptcy, so the United States Bankruptcy Trustee for the Southern District of Indiana is pursuing the suit in her stead.

      . The district judge held that the material facts are undisputed because Perron and Jackson failed to include a section labeled "Statement of Material Facts in Dispute” in their brief as required by local rule. See S.D. Ind. L. R. 56—1(b). Perron and Jackson challenge that holding, but the judge has broad discretion to enforce the local rules, see Waldridge v. Am. Hoechst Corp., 24 F.3d 918, 923 (7th Cir. 1994), and we see no abuse of discretion here.