GREGORY L. CRIPE and TAMMY CRIPE v. HENKEL CORPORATION and NATIONAL STARCH & CHEMICAL C O.

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 17‐1231
G REGORY L. C RIPE and T AMMY C RIPE ,
Plaintiffs‐Appellants,
v.
HENKEL C ORPORATION and NATIONAL STARCH & C HEMICAL
C O.,
Defendants‐Appellees.
____________________
Appeal from the United States District Court for the
Northern District of Indiana, South Bend Division.
No. 3:12CV829‐PPS — Philip P. Simon, Judge.
____________________
A RGUED J UNE 2, 2017 — D ECIDED J UNE 7, 2017
____________________
Before FLAUM, EASTERBROOK , and KANNE , Circuit Judges.
EASTERBROOK , Circuit Judge. While working on his em‐
ployer’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 juris‐
diction, contending that exposure to MDI had caused both

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2 No. 17‐1231
neurological and psychological problems, which could have
been prevented if the adhesive had better warnings. (The
Cripes also sued National Starch & Chemical Co., whose lia‐
bility, 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, rul‐
ing that a toxic‐tort claim under Indiana law depends on ex‐
pert 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 Hen‐
kel. 318 F.R.D. 356 (N.D. Ind. 2017).
In the district court, and again on appeal, the Cripes in‐
sist 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

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No. 17‐1231 3
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 re‐
port of a fact witness, such as a treating physician, to an ex‐
pert’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 publica‐
tions 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 or by deposition; and
(vi) a statement of the compensation to be paid for the study and
testimony in the case.
Fed. R. Civ. P. 26(a)(2)(B). The documents attached to Robin‐
son’s report did not contain any of these things.
Most of the physicians’ evaluations summarize Gregory
Cripe’s narration of symptoms and propose a course of
treatment. They do not discuss causation. What little is said
about causation is unreasoned. For example, Dr. Jennifer S.
Knapp states that Gregory has “[c]ognitive disorder second‐

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4 No. 17‐1231
ary to toxic encephalopathy” but does not explain why she
reached that conclusion. It exemplifies the fallacy post hoc
ergo propter hoc. Another report, from Drs. R. Brent Furbee
and Laura Tormoehlen, states that MDI and other isocya‐
nates are “irritants to the respiratory system … and may
provoke asthma exacerbation in susceptible individuals” but
does not say what this has to do with Gregory Cripe, who is
not complaining of asthma exacerbation. None of the physi‐
cians’ evaluations contains “a complete statement of all opin‐
ions the witness will express and the basis and reasons for
them”, a list of publications and other qualifications, a list of
other cases in which the physician has been an expert, or a
statement of the compensation to be paid. In short, none of
the physicians has submitted an expert’s report. Even those
experts not required to provide a written report must fur‐
nish “a summary of the facts and opinions to which the wit‐
ness is expected to testify.” Fed. R. Civ. P. 26(a)(2)(C)(ii).
None of the physicians did that either.
“An expert who supplies nothing but a bottom line sup‐
plies nothing of value to the judicial process.” Mid‐State Fer‐
tilizer Co. v. Exchange National Bank of Chicago, 877 F.2d 1333,
1339 (7th Cir. 1989). A bottom line is all we get from any of
the physicians’ evaluations. 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. WHO, Diphenylme‐
thane Diisocyanate (MDI) (Concise International Chemical As‐
sessment Document 27) (2000). The WHO’s Assessment con‐
cludes that MDI can irritate lung tissues and cause asthma‐
like symptoms but is not associated with other bad outcomes

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No. 17‐1231 5
in animal studies (of which there have been several) or hu‐
man epidemiological studies.
The WHO’s Assessment is 17 years old and summarizes
data from the 1990s and before. More recent work could call
its conclusions into question. But none of Gregory Cripe’s
treating physicians mentioned any such work. One of them
did cite to a 1994 publication, but the WHO found that pub‐
lication not credible (Assessment at 22), and the treating
physician did not respond to the WHO’s views. Nor has any
of the treating physicians suggested a mechanism by which
MDI could cause the symptoms of which Gregory Cripe
complains—sweats, chills, nausea, constant pain, headaches,
weight gain, fatigue, dizziness, numbness, accelerated heart
beat, stiffness in the neck, sores, anxiety, poor short‐term
memory, and generally feeling lousy.
You can’t beat something with nothing. Henkel provided
reasons to think that MDI could not have caused Gregory
Cripe’s symptoms. He has no contrary evidence. The district
court’s entry of judgment in Henkel’s favor is
AFFIRMED.

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