“You Can’t Beat Something with Nothing”: 7th Cir. Explains the Importance of Disclosing Experts

Some cases present issues that are difficult for the parties to litigate or for the courts to decide. But those cases tend to be the exception. Much of litigation—at least when practiced successfully—requires the mastery of a fundamental set of skills or tasks, the blocking and tackling of the craft.

This week’s decision by the Seventh Circuit in Cripe v. Henkel Corp., No. 17-1231 (June 7, 2017), written by Judge Frank Easterbrook, is a reminder for litigators of the importance of mastering the fundamentals. The court held that the plaintiff in a personal-injury action had failed to disclose any experts, or provide any expert reports, under Fed. R. Civ. P. 26(a)(2) to rebut the defendant’s expert on causation. When the defendant moved for summary judgment, the trial court granted the motion, given that there was no contrary evidence. The Seventh Circuit affirmed, reaching the profound conclusion that “[y]ou can’t beat something with nothing.”

Cripe alleged that he had been injured while working when he was exposed to fumes from glue made by Henkel. Cripe identified only one expert, Patricia Robinson, who opined on what language should be in warnings for a product containing a chemical found in the glue. But Ms. Robinson specifically disclaimed any opinion on causation. Henkel, by contrast, gave the trial court a comprehensive evaluation of the chemical’s risks, prepared by the World Health Organization. That report concluded that exposure to it was not associated with the type of injuries Cripe allegedly suffered.

Cripe argued below and on appeal that he should have been permitted to rely on the expert testimony from six treating physicians because Henkel had been put on notice of the physicians’ opinions when Ms. Robinson attached reports from them to her own expert report. Cripe had not disclosed the physicians as experts, and the court of appeals held that the attachments to Ms. Robinson’s report did not meet the requirements for an expert report under Fed. R. Civ. P. 26(a)(2)(B).

The district court and the court of appeals were not sympathetic to Cripe’s position. “Litigants,” the Seventh Circuit explained, “should not have to guess who will offer 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.”

The court of appeals affirmed the district court.