Chemical Exposure Injury Case Dismissed for Failure to Disclose Expert Witness

The 7th Circuit U.S. Court of Appeals in Chicago has affirmed a lower court decision by a federal judge dismissing Gregory Cripe’s lawsuit for exposure to chemical toxic fumes from Pur-Fect Lok 834A. This product is a glue made by the defendant, Henkel Corp. Cripe was exposed to the toxic fumes when he was working on his employer’s roof.

The glue in question contained methylene diphenyl diisocyanate, which can cause serious injury.

Cripe and his wife, Tammy, sued Henkel Corp. under the diversity of citizenship jurisdiction in federal court, contending that exposure to the chemical byproduct of the glue caused both neurological and psychological problems, which could have been prevented if the adhesive had better warnings.

Discovery in the case lasted for more than three years. At the end of discovery, Henkel moved for summary judgment. Henkel maintained that the evidence would not permit a reasonable jury to find the chemical caused Cripe’s alleged illnesses.

The federal district court judge granted the motion, ruling that a toxic-tort claim depends on expert proof of causation and that the Cripes had not produced any expert evidence. They appealed to the U.S. Court of Appeals for the 7th Circuit in Chicago.

The appeals panel noted that in the district court and on appeal, the Cripes insisted six treating physicians were experts and that their views must be considered. The federal district court judge, however, was not persuaded.  The appeals panel noted that the doctors had not been disclosed as experts under Fed. R. Civ. P. 26(a)(2)(A) as required.

The court of appeals stated that litigants should not have to guess who will offer expert testimony; they need knowledge to conduct their own discovery and proffer responsive experts. The panel continued, stating that this is why failure to disclose an expert under Rule 26 leads to the exclusion of expert testimony by a witness not identified as an expert.

The missing element, the appeals panel stated, was that the physicians’ evaluations summarized Cripe’s narration of symptoms and proposed a course of treatment, but the doctors did not discuss causation.

The panel continued to state that what little was said by the doctors about causation was unreasoned. The panel found that the medical reports did not contain all of the elements that expert reports are required to possess under federal Rule 26.

Because Henkel had provided reasons to believe that the chemical could not have caused Cripe’s symptoms and that he had produced no contrary evidence, the panel affirmed the federal district court’s decision dismissing the case by summary judgment.

Gregory L. Cripe, et al. v. Henkel Corp., et al., No. 17-1231, U.S. Court of Appeals for the 7th Circuit (June 7, 2017).

Kreisman Law Offices has been handling chemical exposure cases, toxic-tort lawsuits, diesel fume lawsuits, worker injury lawsuits and forklift injury lawsuits for individuals, families and the loved ones who have been injured, harmed or killed by the negligence of another for more than 40 years, in and around Chicago, Cook County and its surrounding areas, including Tinley Park, Orland Park, Romeoville, Rolling Meadows, Schiller Park, Calumet City, Lincolnshire, Arlington Heights, Deerfield, Chicago (Wicker Park, Bucktown, Chinatown, West Town, South Shore), Joliet, St. Charles, Geneva and Winfield, Ill.

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