Gregory L. Cripe and Tammy Cripe, Plaintiffs-Appellants,
Henkel Corporation and National Starch & Chemical Co., Defendants-Appellees.
June 2, 2017
from the United States District Court for the Northern
District of Indiana, South Bend Division. No. 3:12CV829-PPS -
Philip P. Simon, Judge.
Flaum, Easterbrook, and Kanne, Circuit Judges.
Easterbrook, Circuit Judge.
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 both
neurological 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.)
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 expert 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).
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 the 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 report 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.
suppose this is wrong. Rule 26(a)(2) requires more than
disclosure of a potential expert's name. The disclosure
must be accompanied by a report, which must contain:
(i) a complete statement of all opinions the witness will
express and the basis and reasons for them;
(ii) the facts or data considered by the witness in forming
(iii) any exhibits that will be used to summarize or support
(iv) the witness's qualifications, including a list of
all publications authored in the previous 10 years;
(v) a list of all other cases in which, during the previous 4
years, the witness testified as an expert at trial ...