Abuse of Discretion

Listen to this article

7^th Circuit Court of Appeals

Case Name: Gregory L. Cripe, et al v. Henkel Corporation, et al

Case No.: 17-1231

Officials: FLAUM, EASTERBROOK, and KANNE, Circuit Judges.

Focus: Abuse of Discretion

While working on his employer’s roof, Gregory Cripe was exposed to fumes from PUR‐FECT LOK® 834A, a glue made by Henkel Corp. and containing methylene diphenyl diisocyanate (MDI). Gregory and his wife Tammy sued Henkel under the diversity jurisdiction, contending that exposure to MDI had caused bothneurological and psychological problems, which could have been prevented if the adhesive had better warnings. (The Cripes also sued National Starch & Chemical Co., whose liability, if any, derives from Henkel’s. We need not mention National Starch again.) Discovery lasted for more than three years, and at its end Henkel moved for summary judgment. It contended that the evidence would not permit a reasonable jury to find that MDI caused Gregory’s ailments—and if MDI did not play a role, then the adequacy of warnings accompanying the glue could not matter. The district court granted this motion, ruling that a toxic‐tort claim under Indiana law depends on ex‐ pert proof of causation, see Hannan v. Pest Control Services, Inc., 734 N.E.2d 674, 682 (Ind. App. 2000), and that the Cripes had not produced any expert evidence on that score. They identified only one expert—Patricia Robinson, a specialist in the language of warnings. But she disclaimed any opinion on causation, which is outside her fields of expertise. That left the plaintiffs with nothing, leading to judgment for Henkel. 318 F.R.D. 356 (N.D. Ind. 2017). In the district court, and again on appeal, the Cripes insist that six treating physicians are experts and that their views must be considered. True, they had not been disclosed as experts under Fed. R. Civ. P. 26(a)(2)(A). But the Cripes insisted that Henkel should have gathered from the fact that Robinson attached the physicians’ reports to her own that they would function as experts. The district court was un‐ persuaded, as are we. Litigants should not have to guess who will offer expert testimony; they need knowledge to conduct their own discovery and proffer responsive experts. That’s why failure to comply with Rule 26(a)(2)(A) leads to he exclusion of expert testimony by a witness not identified as an expert. See Fed. R. Civ. P. 37(c)(1) (exclusion unless the failure is “substantially justified or is harmless”); Novak v. Board of Trustees, 777 F.3d 966, 972 (7th Cir. 2015); Hassebrock v. Bernhoft, 815 F.3d 334, 341 (7th Cir. 2016). Attaching the re‐ port of a fact witness, such as a treating physician, to an expert’s report does not turn the fact witness into an expert witness. And the district judge determined that plaintiffs’ omission is neither substantially justified nor harmless. That was not an abuse of discretion.

Affirmed

Full Text

Attorney Derek A. Hawkins is the managing partner at Hawkins Law Offices LLC, where he heads up the firm’s startup law practice. He specializes in business formation, corporate governance, intellectual property protection, private equity and venture capital funding and mergers & acquisitions. Check out the website at www.hawkins-lawoffices.com or contact them at 262-737-8825.