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Cripe v. Henkel Corp.

United States Court of Appeals, Seventh Circuit

June 7, 2017

Gregory L. Cripe and Tammy Cripe, Plaintiffs-Appellants,
v.
Henkel Corporation and National Starch & Chemical Co., Defendants-Appellees.

          Argued June 2, 2017

         Appeal from the United States District Court for the Northern District of Indiana, South Bend Division. No. 3:12CV829-PPS - Philip P. Simon, Judge.

          Before Flaum, Easterbrook, and Kanne, Circuit Judges.

          Easterbrook, Circuit Judge.

         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 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.)

         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 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).

         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 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.

         But 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 them;
(iii) any exhibits that will be used to summarize or support them;
(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 ...

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