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Cripe v. Henkel Corp.

United States District Court, N.D. Indiana, Hammond Division

January 5, 2017

GREGORY L. CRIPE and TAMMY CRIPE, Plaintiffs,
v.
HENKEL CORPORATION and NATIONAL STARCH & CHEMICAL CO., Defendants.

          MEMORANDUM OPINION AND ORDER

          PHILIP P. SIMON, CHIEF JUDGE

         Defendants Henkel Corporation and National Starch & Chemical seek summary judgment on Gregory and Tammy Cripes' claims of negligence and strict liability for failure to give adequate instructions and warnings on the use of a toxic adhesive. The defendants, which I will refer to for ease of reference collectively as Henkel, contend that the Cripes have failed, after multiple extensions of discovery granted over the past three years, to properly identify necessary experts on causation. I agree, and because the Cripes' claims cannot be established without expert testimony on causation, I grant Henkel's motion for summary judgment.

         Factual Background

         Gregory Cripe worked in maintenance for Challenger Door LLC and was exposed to toxic adhesive material and fumes from a hot melted adhesive called PUR-FECT LOK® 834A while installing a new ventilation system on his employer's roof. (DE 1 at 1.) The Cripes claim this exposure to toxic adhesive material, specifically methylene diphenyl diisocyanate (MDI), led to severe personal injuries that required extensive medical and psychological treatment. (DE 54 at 1, 28.) The Cripes are suing National Starch and Henkel, the manufacturer and distributor of PUR-FECT LOK® 834A, for negligence and strict liability for failure to give adequate instructions and warnings on the adhesive material. (DE 1 at 2.)

         In the Preliminary Pretrial Conference held on February 20, 2013, it was determined that disclosures pursuant to Fed.R.Civ.P. 26 (a)(1) must be exchanged among the parties by March 20, 2013. (DE 14 at 1.) Reports from retained experts under Fed.R.Civ.P. 26(a)(2) were due from the Cripes by September 1, 2013 and from Henkel by October 15, 2013. (Id.) After multiple extensions totaling more than two years, the court ordered that the Cripes' expert witness disclosures and reports be delivered to Henkel by September 1, 2015. (DE 34.)

         On that date, the Cripes disclosed the report of their retained expert, Dr. Patricia Robinson. (DE 35.) Her expertise is in the area of the effectiveness of warnings. Attached to Dr. Robinson's report are multiple other reports and records from Mr. Cripe's various doctors, consisting of several hundred pages of his medical records. (Id.) These treating physicians, along with numerous other medical providers, were previously disclosed as fact witnesses in the Cripes' Rule 26(a)(1) disclosures (DE 15 at 2.) But they were never specifically disclosed as experts under Rule 26(a)(2), whether as experts who are required to provide a report under Rule 26(a)(2)(B) or as experts who are not required to provide a report under Rule 26(a)(2)(C). As of May 20, 2016, all discovery in this case was closed. (DE 41, 42.)

         Discussion

         Henkel asks me to grant summary judgment in their favor because the Cripes have failed to designate an expert on the issues of general and specific causation. (DE 43 at 2.) As noted above, the Cripes did identify one expert, Patricia Robinson, but her area of expertise is the adequacy of warnings and instructions. Dr. Robinson was the only expert witness specifically identified by the Cripes. (DE 35.)

         The Cripes' principal claim is that six of Mr. Cripe's treating physicians (Drs. Kristyl, Pike, Furbee, Tormoehlen, Hussain, and Elliott) are his experts on the issue of causation. The Cripes argue that the reports of these six physicians were adequately disclosed because they were appended to Dr. Robinson's report. (DE 54 at 30-31.) The Cripes further argue that even if not technically correct under Rule 26(a)(2)(C), these materials should be treated as expert disclosures because there is no prejudice or surprise to Henkel. (DE 54 at 32.) Henkel's response is that the Cripes' failure to disclose experts on general and specific causation is neither justified nor harmless, and that the treating physicians that the Cripes now identify as causation experts were not properly disclosed as experts. (DE 57 at 2-3.) As a result, Henkel has not deposed the doctors and does not know the substance of their testimony, and with the case set for trial in February 2017, if they are allowed to be designated as experts at this late stage, Henkel will be flying in the dark. (Id. at 3.) Therefore, Henkel requests summary judgment in their favor.

         Summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). A genuine dispute of material facts exists only if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986).

         In toxic tort cases, expert testimony is necessary to establish causation when there is no obvious source of the injury. Myers v. Illinois Central Railroad Company, 629 F.3d 639, 643 (7th Cir. 2010). Under Indiana law, which is applicable here, a toxic tort plaintiff must provide evidence of both general and specific causation. C.W. ex rel. Wood v. Textron, Inc., 807 F.3d 827, 831 (7th Cir. 2015). The Cripes acknowledge this requirement of their proof. (DE 54 at 43.) So to survive Henkel's motion for summary judgment, the Cripes need to have expert testimony on causation to prove that Mr. Cripe's injuries were caused by PUR-FECT LOK® 834A.

         Before getting to the Cripes' principal argument- that his treating doctors can serve as his causation experts-I need to address an initial very weak argument made by the Cripes. They claim that their properly disclosed retained expert, Dr. Patricia Robinson, addresses general causation, i.e., the ability of MDI exposure to cause injuries like those suffered by Mr. Cripe. (DE 54 at 38-39.) What the Cripes actually argue is simply that Dr. Robinson made note of some publications addressing such a causative link. (Id.) Henkel argues that Dr. Robinson is not qualified to testify on causation because she is not a medical doctor, toxicologist, epidemiologist, nor an expert in disease causation. (DE 44 at 5.) Indeed, Dr. Robinson herself conceded that point in her deposition testimony. (DE 58-7). Dr. Robinson testified without reservation that she was unqualified to render such a judgment herself. Although she considers those publications to be “reliable literature, ” she disclaimed any ability to “give an opinion on whether any of the things discussed are or are not caused by diisocyanates.” (DE 58 at 7.) Acknowledging that she is not a medical doctor, toxicologist or epidemiologist, Dr. Robinson admitted that she lacks expertise in disease causation. (Id. at 6.) Instead, her expert testimony is limited to opinions on the adequacy of the warnings accompanying the PUR-FECT LOK® 834A adhesive on its product label. (DE 35 at 12-13.) So Dr. Robinson does not in fact offer any opinions on general causation relevant to Mr. Cripe's injuries, and readily acknowledged that she is not qualified to do so.

         Now it is on to the Cripes' more substantive argument-that the medical records and other documents from the treating physicians appended to Dr. Robinson's expert report qualify as a disclosure of those physicians as experts on causation. A treating doctor is providing expert testimony if she offers opinions based on scientific or technical knowledge. Musser v. Gentiva Health Services, 356 F.3d 751, 756 n.2 (7th Cir. 2004). Thus, the opinions of Mr. Cripe's treating doctors on the cause of his injuries qualify as expert testimony. However, the Cripes have failed to comply with the requirements of Rule 26 for formally disclosing these treating physicians as experts on general and specific causation.

         Under Fed.R.Civ.P. 26(a)(2)(A), “a party must disclose to the other parties the identity of any witness it may use at trial to present evidence under Federal Rules of Evidence 702, 703, or 705.” All Rule 26 expert disclosures should be in writing, signed by counsel, and served on opposing counsel. Fed.R.Civ.P. 26(a)(4); Musser, 356 F.3d at 757. In the case of a retained expert, the disclosure is to be “accompanied by a written report-prepared and signed by the witness” under Rule 26(a)(2)(B). Rule 26(a)(2)(C) provides that if the witness is not a retained expert and not required to provide a written report, the party's disclosure of the ...


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