United States District Court, N.D. Indiana, Hammond Division
GREGORY L. CRIPE and TAMMY CRIPE, Plaintiffs,
HENKEL CORPORATION and NATIONAL STARCH & CHEMICAL CO., Defendants.
MEMORANDUM OPINION AND ORDER
P. SIMON, CHIEF JUDGE
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.
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.)
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
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,
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.)
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.
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).
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.
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.
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.
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 ...