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7th Circuit: Summary judgment properly awarded to glue manufacturer

June 7, 2017

A federal judge properly awarded summary judgment to a glue manufacturer after the 7th Circuit Court of Appeals determined a man who claimed he suffered neurological issues from the glue’s fumes failed to provide expert testimony to establish causation.

While working on his employer’s roof, Gregory Cripe came into contact with fumes from a glue made by Henkel Corp. that contained methylene diphenyl diisocyanate, or MDI. Cripe and his wife, Tammy, sued Henkel and the National Starch & Chemical Co. under diversity jurisdiction, arguing his exposure to MDI had caused him neurological and psychological problems that could have been avoided with better warnings on the glue’s adhesive.

After a three-year discovery period, Henkel moved for summary judgment, arguing a reasonable jury could not find that MDI caused Cripe’s ailments. Further, if that were true, then Henkel said the adequacy of the adhesive warnings could not matter.

Judge Philip P. Simon of the U.S. District Court for the Northern District of Indiana granted the motion for summary judgment, finding the Cripes had not produced expert proof of causation. The Cripes had identified only one expert, Patricia Robinson, who was a specialist in the language of warnings, but who disclaimed any opinion on causation because that is outside her fields of expertise.

On appeal before the 7th Circuit, the Cripes contended that six treating physicians were experts whose views must be considered. Although those experts weren’t disclosed under Federal Rules of Civil Procedure 26(a)(2)(A), 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.”

But Judge Frank Easterbrook, writing Wednesday for the 7th Circuit, rejected that notion, writing “litigants should not have to guess who will offer expert testimony; they need knowledge to conduct their own discovery and proffer responsive experts.”

“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,” Easterbrook wrote. “And the district judge determined that plaintiffs’ omission is neither substantially justified nor harmless. That was not an abuse of discretion.”

Further, Easterbrook said the physicians’ evaluations merely summarized Cripe’s symptoms, rather than discussing causation, and “what little is said about causation is unreasoned.”

“By contrast, Henkel provided the district court with a comprehensive evaluation of MDI prepared by the World Health Organization, incorporating risk assessments from governmental bodies in the United States, Japan, and the European Union,” the judge wrote. “The WHO’s assessment concludes that MDI can irritate lung tissues and cause asthma-like symptoms but is not associated with other bad outcomes in animal studies…or human epidemiological studies.”

Though the WHO assessment is 17 years old and could possibly be questioned, Cripe did not offer expert testimony that posed such questions. Thus, summary judgment was properly awarded to Henkel, Easterbrook said.

The case is Gregory L. Cripe and Tammy Cripe v. Henkel Corporation and National Starch & Chemical, Co., 17-1231.
 

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