UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

HAMMOND DIVISION

GREGORY L. CRIPE and TAMMY CRIPE, )

)

Plaintiffs, )

)

v. ) CAUSE NO. 3:12CV829-PPS

)

HENKEL CORPORATION and NATIONAL )

STARCH & CHEMICAL CO., )

)

Defendants. )

MEMORANDUM OPINION AND ORDER

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 PURFECT 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

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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,

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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

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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

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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 expert must include a statement of the

subject matter on which the witness is expected to present evidence and a summary of

the facts on which the witness will rely in testifying. 

Disclosure of a treating physician, then, is to be a document prepared and signed

by counsel providing the information required by Rule 26(a)(2)(C), rather than medical

records or any report by the witness. When a party fails to identify a witness in

compliance with the requirements of Rule 26, exclusion of the witness is “automatic and

mandatory” unless the failure was substantially justified or harmless. Novak v. Board of

Trustees of Southern Illinois University, 777 F.3d 966, 972 (7th Cir. 2015); Fed.R.Civ.P.

37(c)(1). See also Hassebrock v. Bernhoft, 815 F.3d 334, 341 (7th Cir. 2016) (“If a party

doesn’t make a timely and complete expert-witness disclosure, the expert’s testimony

ordinarily can’t be presented at trial.”). 

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The Cripes have failed to comply with the requirements of Rule 26(a)(2)(C). The

Cripes attached voluminous medical records and reports labeled “Exhibit Material

Relied on by Expert” to the 26(a)(2)(B) disclosure of retained expert Dr. Robinson,

failing to identify any other doctors as expert witnesses. (DE 35-3 to 35-16.) The

documents that the Cripes now say are their disclosure of treating doctors as experts are

just 5 of 16 attachments to Dr. Robinson’s report and they are all labeled the same way. 

(DE 35-10, DE 35-12, DE 35-14, DE 35-15, DE 35-16.) The electronic filing looks like this:

DISCLOSURE of Rule 26 Written Expert Report filed by Gregory L Cripe.

(Attachments: # 1 Exhibit List of Expert's Cases, # 2 Exhibit CV of Patricia

Robinson, Ph.D., # 3 Exhibit Material Relied on by Expert, # 4 Exhibit

Material Relied on by Expert, # 5 Exhibit Material Relied on by Expert, # 6

Exhibit Material Relied on By Expert, # 7 Exhibit Material Relied on by

Expert, # 8 Exhibit Material Relied on by Expert, # 9 Exhibit Material

Relied on by Expert, # 10 Exhibit Medical Record Relied on By Expert, #

11 Exhibit Medical Record Relied on By Expert, # 12 Exhibit Medical

Record Relied on by Expert, # 13 Exhibit Medical Record Relied on by

Expert, # 14 Exhibit Medical Records Relied on By Expert, # 15 Exhibit

Psychological Records Relied on by Expert, # 16 Exhibit Medical Report

Relied on by Expert)(Mulvaney, Douglas) (Entered: 09/01/2015) [DE 36.]

Any reasonable person who received such a filing would come to the conclusion

that the documents appended to Dr. Robinson’s expert report are materials supporting

her report, not expert reports of someone else. There is no reason to use the

nomenclature “Medical Records Relied on” by Dr. Robinson when designating the

exhibits attached to her report, unless those records are what they purport to

be—medical records relied on by Dr. Robinson. No one would conclude that some (but

not all) of the attachments are really some separate Rule 26(a)(2)(C) disclosure of a

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number of other experts. Certainly, the content of the five attachments Cripe now relies

upon would not support such an interpretation.

Attachment #10 [DE 35-10] is a medical report signed by Dr. R. Brent Furbee and

Dr. Laura Tormoehlen of the Indiana Poison Center. In the form of a letter addressed to

Dr. Kevin Kristl, it is Furbee and Tormoehlen’s response to Dr. Kristl’s referral of

Gregory Cripe to the outpatient toxicology clinic of Methodist Hospital in Indianapolis. 

The letter outlines the history of Cripe’s present illness, a review of his systems, his past

medical and surgical history, his medications and allergies, his social and occupational

history, the results of Cripe’s physical exam at the clinic, the medical history reviewed

by the examiners, and finally offers their Impression and Plan. In short, it is a run of the

mill medical record, not an expert report. 

The same goes for Attachment #12. It is the medical record of Cripe’s

examination by neurologist Zulfiqar Hussain, again on referral from Dr. Kristal. [DE

35-12.] A non-substantive cover letter from Dr. Hussain is attached to the medical

record of Cripe’s January 20, 2012 visit. Like the report of Furbee and Tormoehlen,

Hussain’s record lists Cripe’s complaints, his medical and surgical history, his social

history, allergies and medications, and the report of Cripe’s physical exam. [Id. at 2-4.] 

The record concludes with Hussain’s Impression and Suggestions. [Id. at 4-5.] 

The next supposed expert disclosure is in Attachment #14. It is a 41 -page

compilation of medical records and reports, consisting largely of the records of Cripe’s

treatment by neurologist Dr. Kevin Kristl, but including reports of other practitioners’

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testing and examinations. [DE 35-14.] This attachment includes notes of Cripe’s visits

to Dr. Kristl on November 2, 2011 [id. at 2-5], January 12, 2011 [id. at 6-8.], February 4,

2011 [id. at 11], March 29, 2011 [id. at 12], November 20, 2011 [id. at 13-16], and August

27, 2012 [id. at 18-20]. Also within this exhibit to Dr. Robinson’s report are Dr. Kristl’s

letter of March 21, 2012 concerning Cripe’s work limits [id. at 17], a report of an EEG of

January 27, 2011 [id. at 9], and off-work Rx dated January 27, 2011 [id. at 10]. Other

pages of the 41 are a Report of Pulmonary Function Testing, ordered by Dr. Stephen

Wintermeyer and interpreted by Dr. Homer Twigg, III [id. at 21-27], a report of

neurological screening [id. at 28-30], a Functional Capacity Evaluation Report by Ruth

Noeldner, OTR [id. at 31-35], an Independent Medical Examination (Worker’s Comp

Evaluation) Report of Dr. James D. Pike [id. at 36-40], and a letter of Gary Elliott, Ph.D.,

Clinical Neuropsychologist, to Toni Schneider, Claimant Examiner, Indiana Accident

Fund, dated January 31, 2014 [id. at 41]. 

The Cripes claim that Attachment #15 constituted the necessary disclosure of

expert testimony by clinical neuropsychologist Gary Elliott. [DE 35-15.] But once again,

Attachment #15 is simply a collection of medical records bearing none of the markers of

an expert disclosure. The 19-page exhibit consists of Elliott’s cover letter to referring

physician Kevin Kristl, reports of psychological evaluations of Mr. Cripe that occurred

on March 14, 2011, August 3, 2011, and December 28, 2013, and Dr. Elliott’s March 27,

2014 letter to a claimant examiner at the Indiana Accident Fund. Finally, Attachment

#16 [DE 35-16], now proffered as the expert disclosure of Dr. James Pike, is the same 5-

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page letter-report of Pike’s Independent Medical Examination of Mr. Cripe dated March

9, 2013 as was incorporated in Attachment #14, described above. Again, these are

nothing more than ordinary medical records that don’t resemble expert disclosure as

called for by Rule 26(a)(2) in the least. 

This conglomeration of medical information clearly does not constitute plaintiff’s

counsel’s statement of the subject matter on which a particular witness is expected to

present evidence, nor counsel’s summary of facts and opinions as to which any

particular expert witness is expected to testify. Not one of these five attachments to Dr.

Robinson’s report was prepared or signed by counsel, none of them was offered as a

stand-alone expert witness disclosure, and none would satisfy the requirements of Rule

26(a)(2)(C). The disclosure of these doctors earlier in a long list of medical fact witnesses

is not adequate to constitute the formal designation of expert witnesses that the Federal

Rules of Civil Procedure demand. Musser, 356 F.3d at 757. 

The court has broad discretion when determining if a failure to comply with

disclosure rules is harmless or justified. David v. Caterpillar, Inc., 324 F.3d 851, 857 (7th

Cir. 2003). Because the Cripes persist in contending that they complied with Rule

26(a)(2)(C), they offer no justification. (DE 54 at 32.) A misunderstanding of the law

does not provide substantial justification for a disclosure violation. Tribble v.

Evangelides, 670 F.3d 753, 760 (7th Cir. 2012). Therefore, the fact that the Cripes did not

understand they were not complying with Rule 26 does not justify their failure. Also, in

this toxic tort context, the Cripes should have known that causation expert testimony is

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crucial to their case, which weighs against any justification for failing to disclose the

experts appropriately. Musser, 356 F.3d at 759, quoting Dura Automotive Sys. of Indiana,

Inc. v. CTS Corp., 285 F.3d 609, 616 (7th Cir. 2002) (“Given the necessity for expert

testimony in medical malpractice cases under Indiana law...the Mussers should have

known that expert testimony was ‘crucial’ to their case, and ‘likely to be contested;’ in

these circumstances there is not a substantial justification for failing to disclose

experts.”). The Cripes’ failure to comply with Rule 26(a)(2) was not substantially

justified.

Neither was it harmless. There are four factors that courts take into

consideration when considering if the failure to abide by the expert disclosure rules is

harmless: “(1) the prejudice or surprise to the party against whom the evidence is

offered; (2) the ability of the party to cure the prejudice; (3) the likelihood of disruption

to the trial; (4) the bad faith or willfulness involved in not disclosing the evidence at an

earlier date.” Westefer v. Snyder, 422 F.3d 570, 584 n.21 (7th Cir. 2005) (citing David, 324

F.3d at 857). Although there is no bad faith shown here, the belated identification of

these particular treating physicians as causation experts is a surprise and is prejudicial

because defendants have not deposed these witnesses as they surely would have if their

status as experts had been known. 

The ability to cure this prejudice, given the February 2017 trial date, lies not with

the defendants but with the court, which makes for a likelihood of disruption of the trial

date if this motion is denied and the witnesses are permitted to be used as experts. If I

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were to deny this summary judgment motion, the trial could be rescheduled to a later

date, which would allow more time for depositions and new motions. However, it is

not an abuse of discretion to conclude, as I do, that the additional costs to defendants of

reopening discovery, preparing new summary judgment motions, and further delaying

the trial are not harmless, particularly given the age of this case and the prolonged

period of discovery already allowed. Hassebrock, 815 F.3d at 341 (“Reopening discovery

would prejudice the defendants” because it “would cause further delay and require the

defendants to prepare new motions on potentially different grounds.”); Musser, 356 F.3d

at 759.

CONCLUSION

I find that the Cripes failed to identify Doctors Kristyl, Pike, Furbee, Tormoehlen,

Hussain, and Elliott as expert witnesses in compliance with Rule 26(a)(2), and that the

failure was neither substantially justified nor harmless. As a result, under Rule 37(c)(1),

the Cripes are unable to use these witnesses as experts on the causation of Gregory’s

injuries. Without these witnesses, the Cripes lack evidence of causation necessary to

support their tort claims. Defendants are entitled to summary judgment because the

Cripes have “failed to make a sufficient showing on an essential element of [their] case

with respect to which [they have] the burden of proof.” Celotex, 477 U.S. at 323. The

motion for summary judgment will be granted.

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ACCORDINGLY:

The Motion for Summary Judgment (DE 43) of defendants Henkel Corporation

and National Starch & Chemical Co. is GRANTED. The Clerk shall enter judgment

accordingly.

SO ORDERED.

ENTERED this 5th day of January, 2017.

/s/ Philip P. Simon 

PHILIP P. SIMON, CHIEF JUDGE

UNITED STATES DISTRICT COURT

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