Failing to properly disclose experts can produce a devastating result. In most complex cases, an expert is necessary in order to establish all of the elements of a claim. By failing to adequately disclose an expert, you risk having expert testimony or opinions barred at trial or in opposition to dispositive motions.
For example, in Cripe v. Henkel Corp., the 7th Circuit recently affirmed a summary judgment ruling in a product liability action where the plaintiff failed to produce expert proof of causation. 2017 U.S. App. LEXIS 10103 (7th Cir. 2017). In the case, the Plaintiff alleged that he suffered neurological issues due to inhaling glue fumes that contained methylene diphenyl diisocyanate (“MDI”), which was manufactured by his employer. After three years of discovery, the defendants moved for summary judgment and argued that the MDI could not cause the Plaintiff’s health issues. Therefore, they should be entitled to summary judgment because the Plaintiff failed to establish any proximate cause from the chemical to the illness.
Judge Simon of the U.S. District Court for the Northern District of Indiana granted the motion for summary judgment finding that the Plaintiff did not produce any expert proof of causation linking MDI to the symptoms the Plaintiff experienced. In opposition, the Plaintiff only pointed to his treating physicians that he disclosed in his Rule 26 initial disclosures. However, the 7th Circuit rejected this argument because the Plaintiff failed to disclose the physicians as experts under 26(a)(2)(A), and, more importantly, failed to provide the items listed under the Rule. The 7th Circuit explained that “[l]itigants 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 the failure to comply with Rule 26(a)(2)(A) leads to the exclusion of expert testimony by a witness not identified as an expert.