A Quick Lesson on the Importance of Disclosing Experts Properly

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. 

Insurance Company that paid one million dollar life insurance policy to wrong party found to be non-liable.

The Seventh Circuit Court of Appeals upheld a finding of summary judgment by Judge Lozano of the Northern District of Indiana in a case where the United of Omaha Life Insurance Company paid a non-beneficiary of a life insurance policy.  In this case, Troyer Products purchased a key-man life insurance policy for its President, Ron Clark, with the intended beneficiary named as Dave Buck, its COO.  The policy was purchased with the intent to enable Clark to use the proceeds of the policy to purchase Clark’s shares and come to control the company.  Thereafter, the insurance policy was amended and the beneficiary was changed to reflect that Troyer would receive the insurance proceeds.

In 2005, Clark retired from Troyer and sold a controlling interest of his shares of the company to Dan Holtz, who became Troyer’s new President.  Buck remained COO.  As part of the purchase, Holtz received a copy of the amended keyman policy that indicated Troyer was the beneficiary.  Clark died in 2011.  Despite the amendment to the policy, Buck received the insurance proceeds.  He subsequently tried to purchase Holtz shares, but was rejected and ousted from Troyer by its board.

Troyer then filed an action against United claiming that it breached its contract by paying the wrong beneficiary.  Omaha conceded that it made a mistake in paying the wrong party; however, argued that Troyer knew all along that it was the beneficiary and allowed the wrong party to be paid.  Thereby waiving its claim.  Holtz and Troyer both insisted that they had no reason to believe that Troyer was in fact the beneficiary and instead relied upon United Omaha.

Through discovery United Omaha revealed that Troyer in fact knew all along that it was the beneficiary.  Both Holtz and Troyer both possessed a copy of the amended insurance policy in their records.  Moreover, during a Troyer board meeting prior to the policy payout, Buck repeatedly told Holtz that Troyer was the policy’s beneficiary.  The court found that this conclusively refuted Troyer’s argument that it had no knowledge of the intended beneficiary and, therefore, granted summary judgment in favor of United Omaha.

Samaron Corp. d/b/a/ Troyer Products v. United of Omaha Life Insurance Co., (7th Cir. 2016)