Kent Higgins v. Koch Development Corporation

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 14‐2207
KENT HIGGINS , et al.,
Plaintiffs‐Appellants,
v.
KOCH D EVELOPMENT C ORPORATION,
Defendant‐Appellee.
____________________
Appeal from the United States District Court for the
Southern District of Indiana, Evansville Division.
No. 3:11‐cv‐81 — Richard L. Young, Chief Judge.
____________________
A RGUED A PRIL 9, 2015 — D ECIDED J ULY 20, 2015
____________________
Before FLAUM, RIPPLE, and WILLIAMS, Circuit Judges.
FLAUM, Circuit Judge. After the district court disquali‐
fied plaintiff Kent Higgins’s causation expert—enlisted to
prove that Higgins developed asthma and reactive air‐
ways dysfunction syndrome as a consequence of inhaling
chlorine gas at an amusement park—he argued that he
did not need an expert to prove negligence at all. Alterna‐
tively, Higgins argued that his treating physician could
serve as such an expert. The district court disagreed, con‐

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2 No. 14‐2207
sidering the causation issue too complex for an unassist‐
ed jury, and deeming Higgins’s treating physician’s quali‐
fications and methodology too uncertain to permit her to
opine on such matters. Consequently, the district court
granted summary judgment in favor of the defendant.
We affirm.
I. Background
On June 20, 2009, Kent and Jennifer Higgins, along
with their two children, visited Santa Claus, Indiana’s
Holiday World & Splashin’ Safari amusement park
(“Holiday World,” for ease of reference)—owned and
operated by defendant Koch Development Corporation.
During their stay, the filter pump connected to the park’s
lazy river (dubbed the “Bahari River”) malfunctioned
due to a tripped circuit breaker. As the park’s staff
worked to fix the problem, pool chemicals—bleach and
hydrochloric acid—accumulated in the pump. When the
pump finally restarted, these chemicals discharged into
the water and a cloud of chlorine gas released into the air.
At that moment, the Higginses were not near the Ba‐
hari River. But their niece apparently was—and soon
thereafter, the Higginses received a cell phone call alert‐
ing them that she was “in trouble,” prompting them to
head in that direction. When they arrived, Kent Higgins
(“Higgins”) inhaled an unspecified amount of chemical
fumes that lingered in the air. Complaining of chest
tightness, burning eyes, shortness of breath, and nausea,
Higgins visited the emergency room later that day, where
he was diagnosed with “mild chemical exposure” and
discharged with instructions to follow up with his prima‐
ry care physician.

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No. 14‐2207 3
Higgins saw a pulmonologist later that summer, but
waited more than a year before consulting his primary
care physician, who referred Higgins to a second pul‐
monologist, Dr. Linda Haacke. Dr. Haacke diagnosed
Higgins with reactive airways dysfunction syndrome
(“RADS”) and chronic asthma on August 18, 2010 (more
than fourteen months after the incident at Holiday
World). According to Dr. Haacke, RADS is a syndrome
that results in an acute change in one’s airways functions,
and generally occurs following a single exposure to a
significant amount of irritant. Wheezing, bronchospasm,
and shortness of breath are symptomatic of both RADS
and asthma. Dr. Haacke based her diagnosis on her eval‐
uation of Higgins, coupled with the results of a pulmo‐
nary function study conducted by the pulmonologist that
Higgins had seen a year earlier. Since his initial visit,
Higgins has seen Dr. Haacke about once every six
months, and she continues to prescribe him medication
for his conditions.
In May 2011, Higgins brought this negligence suit
against Koch Development Corporation. 1 To prove his
case, Higgins sought to designate Dr. Anthony Margheri‐
ta (who examined Higgins for purposes of this litigation)
as his causation expert. The district court, however,
granted Koch’s motion to disqualify Dr. Margherita for
1 In addition to damages for Higgins himself, the complaint sought
medical expenses allegedly incurred by Higgins’s wife, Jennifer;
their two children; and another family, the Taylors (all of whom ap‐
parently also inhaled chemical fumes at Holiday World on June 20,
2009). But those claims were resolved in the district court and are not
relevant to this appeal.

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4 No. 14‐2207
failing to establish a reliable methodology (a ruling that
Higgins does not challenge on appeal). Shortly thereafter,
Koch filed a motion for summary judgment, arguing that
Higgins could not prove that the chemical fumes caused
his injuries.
In opposition, Higgins—now without a causation ex‐
pert—tried to persuade the district court that he did not
need an expert to testify regarding causation in order to
prove his case. Alternatively, he argued that Dr. Haacke
should be permitted to serve as such an expert. The dis‐
trict court disagreed on both accounts, finding an expert
essential to a jury’s understanding of the issues and—on
the record before it—deeming Dr. Haacke unqualified to
opine on chlorine’s effects on the human pulmonary sys‐
tem and her methodology too uncertain to determine its
reliability. Without a proper causation expert, the district
court concluded, Higgins could not prove his negligence
claim, and so the court granted summary judgment in
favor of Koch.
Higgins appeals.
II. Discussion
We review a district court’s grant of summary judg‐
ment de novo. Fix v. Quantum Indus. Partners LDC, 374
F.3d 549, 552 (7th Cir. 2004). However, our review of the
district court’s decision concerning the admission of ex‐
pert testimony, even in the summary judgment context,
is slightly more nuanced. We review de novo whether
the district court properly followed the framework set
forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509
U.S. 579 (1993). United States v. Hall, 165 F.3d 1095, 1101

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No. 14‐2207 5
(7th Cir. 1999). If the district court properly applied that
framework (and Higgins concedes that, in evaluating the
sufficiency of Dr. Haacke’s opinion testimony, it did), we
review the court’s decision to exclude expert testimony—
that is, its application of the Daubert framework—for an
abuse of discretion. Gayton v. McCoy, 593 F.3d 610, 616
(7th Cir. 2010).
In this diversity action, Indiana law governs whether
an expert is needed to prove causation. See Wallace v.
McGlothan, 606 F.3d 410, 419–20 (7th Cir. 2010). Under
Indiana law, proving negligence in a case like this one
requires proof of both general and specific (or individual)
causation. 7‐Eleven, Inc. v. Bowens, 857 N.E.2d 382, 389
(Ind. Ct. App. 2006). The law of the Seventh Circuit
acknowledges this same dichotomy. See Myers v. Ill. Cent.
R.R. Co., 629 F.3d 639, 641–42 (7th Cir. 2010). General
causation refers to “whether the substance at issue had
the capacity to cause the harm alleged, while ‘individual
causation’ refers to whether a particular individual suf‐
fers from a particular ailment as a result of exposure to a
substance.” 7‐Eleven, 857 N.E.2d at 389. The district court
concluded that, without an appropriate expert, Higgins
could not establish specific causation—that is, that the
inhalation of chemical fumes caused his health condi‐
tions. Higgins, however, maintains that he does not need
an expert to establish that the incident at the Bahari River
sparked his ailments.
As his primary support, he emphasizes our statement
in Myers that “[e]xpert testimony is unnecessary in cases
where a layperson can understand what caused the inju‐
ry.” 629 F.3d at 643. To illustrate the point, we noted that

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6 No. 14‐2207
“when a plaintiff suffers from a broken leg or a gash
when hit by a vehicle, he doesnʹt need to produce expert
testimony.” Id. Higgins analogizes his injuries to those
mentioned in Myers, and cites to the Second Circuit’s de‐
cision in Ulfik v. Metro‐North Commuter Railroad, 77 F.3d
54 (2d Cir. 1996), which he contends underscores the apt‐
ness of his comparison. In Ulfik, the court deemed a cau‐
sation expert unnecessary for a jury to conclude that the
inhalation of paint fumes—which the plaintiff breathed
for a period of six hours while working in an under‐
ground railroad tower—caused the plaintiff to become
dizzy, resulting in his falling down a flight of stairs. Id. at
55–56 & 59. “[T]he trier of fact could reasonably deter‐
mine, without expert testimony, that prolonged exposure
to paint fumes would cause headache, nausea, and dizzi‐
ness,” the court said. Id. at 59–60. Higgins argues that
here, too, it is “obvious” that inhaling chlorine gas would
cause the injuries he suffers.
We disagree. Unlike dizziness in the wake of extend‐
ed exposure to paint fumes or a broken leg suffered dur‐
ing a car crash, a typical layperson does not possess the
requisite knowledge to draw a causative line, without the
assistance of a medical expert, between a brief encounter
with chlorine gas and the onset of either RADS (a disease
with which, we are confident, most laypeople have no
familiarity) or asthma.
Higgins’s reply brief insists that, even if a jury would
be unable to attribute the onset of these conditions to the
events at Holiday World, a jury is capable of concluding
that he suffered some (more minor) injury by inhaling the
fumes. (His complaint makes the general allegation that

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No. 14‐2207 7
he “sustained serious personal injuries to his eyes, nose,
throat, and lungs.”) He concedes that the causation ques‐
tion would be outside “the purview of laypeople” when
dealing with “some chemicals,” but not chlorine—a “gas
[that] is a well‐known cause of pulmonary injury,” Hig‐
gins says. Even if we were to accept that dubious conten‐
tion as true, the fact remains that the quantity of chlorine
actually inhaled by Higgins—which, recall, he encoun‐
tered some period of time after the gas was released into
the air—is entirely unknown. Hospital records from the
day of the incident describe his exposure as “mild.” And,
further complicating the causation issue, Dr. Haacke tes‐
tified in her deposition (at which she appeared in her ca‐
pacity as Higgins’s treating physician, not as his causa‐
tion expert) that Higgins is obese and that obesity affects
lung volume. Dr. Haacke also testified that there is a ge‐
netic component to asthma and that Higgins’s father suf‐
fered from emphysema. Given so much uncertainty,
there is no question that a layperson is incapable of scien‐
tifically determining specific causation here without the
assistance of an expert.
Higgins points to two Sixth Circuit cases that he reads
as reaching conclusions that contradict the one we reach
here: Best v. Lowe’s Home Centers, Inc., 563 F.3d 171 (6th
Cir. 2009), and Gass v. Marriott Hotel Services, Inc., 558
F.3d 419 (6th Cir. 2009). Both are readily distinguishable.
In Best, the plaintiff lost his sense of smell after an open
bag of pool chemicals spilled off a store shelf and poured
directly onto his face. 563 F.3d at 174. Different from
here, though, the issue in Best was not whether the plain‐
tiff needed a causation expert to prove his case (Best had
a causation expert); rather, the issue was whether the

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8 No. 14‐2207
opinion offered by Best’s causation expert was sufficient‐
ly reliable to warrant admissibility (the court concluded
that it was). Id. at 180.
Gass (which Best mentions in passing, without opin‐
ing on its applicability) is more helpful to Higgins, but it
cannot carry the day. There, the plaintiffs suffered
“chemical poisoning” after the staff at the hotel where
they were staying filled their room with pesticide gas
while spraying for cockroaches. 558 F.3d at 422. The dis‐
trict court granted summary judgment for the hotel, be‐
cause the plaintiffs lacked a specific causation expert. Id.
But the Sixth Circuit reversed. Id. at 432. In its view, be‐
cause the plaintiffs “produced ample evidence to demon‐
strate that at least one of the chemicals Defendants rou‐
tinely used to exterminate cockroaches … [was] capable
of causing their symptoms,” a reasonable jury, without
the existence of the expert, could find that the plaintiffs’
symptoms were caused by their exposure to the pesti‐
cides. Id.
Gass differs from our case in several critical respects.
First, the Gass plaintiffs complained only of “chemical
poisoning” (i.e., headache, itching, dizziness, etc.). Id. at
423, 430. The connection between the inhalation of harm‐
ful pesticides—exposure to which occurred in a confined
hotel room—and those symptoms is fairly obvious, as the
Sixth Circuit found. Here, by contrast, Higgins primarily
complains that exposure to chlorine fumes caused not
symptoms, but permanent, chronic conditions—reactive
airways dysfunction syndrome and asthma. And, though
(as mentioned) he apparently also seeks damages for
other nondescript “injuries to his eyes, nose, throat, and

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No. 14‐2207 9
lungs,” the causative connection Higgins asks a jury to
make in this case—which involves an undetermined
quantity of airborne chlorine, inhaled outdoors after
some unspecified interval of time following the release of
the gas—is far less apparent than the causation question
in Gass. Second, and more fundamentally, the Gass plain‐
tiffs had an expert who testified as to general causation—
that is, that pesticides are capable of causing the symp‐
toms about which the Gass plaintiffs complained. Here,
Higgins argues that no causation expert is needed, peri‐
od.
In any event, Gass applied Michigan—not Indiana—
law in reaching its conclusion. And Indiana law makes
clear that “questions of medical causation of a particular
injury are questions of science necessarily dependent on
the testimony of physicians and surgeons learned in such
matters.” Armstrong v. Cerester USA, Inc., 775 N.E.2d 360,
366 (Ind. Ct. App. 2002) (quoting Hannan v. Pest Control
Servs. Inc., 734 N.E.2d 674, 679 (Ind. Ct. App. 2000)). This
comports with our decision in Myers, where we made
clear that “when there is no obvious origin to an injury
and it has multiple potential etiologies, expert testimony
is necessary to establish causation.” 629 F.3d at 643 (cita‐
tion and internal quotation marks omitted). And that is
particularly true in a case, like the one before us, involv‐
ing an allegation that exposure to a chemical caused
permanent and debilitating lung dysfunction. Without an
expert, a plaintiff in such a complex case would be free—
as Judge Boggs warned in his dissent in Gass—to prove
his allegations relying on the logical fallacy “post hoc ergo
propter hoc” (“the fallacy of saying that because effect A
happened at some point after alleged cause B, the alleged

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10 No. 14‐2207
cause was the actual cause”). 538 F.3d at 434–35. For all of
these reasons, we conclude that a causation expert is re‐
quired in this case.
We therefore turn to an evaluation of Higgins’s con‐
tention that Dr. Haacke can serve as such an expert. Un‐
derscoring the last‐ditch nature of Higgins’s argument—
invoked only after his proposed expert, Dr. Margherita,
was deemed unqualified to testify—Higgins never dis‐
closed Dr. Haacke as an expert witness pursuant to Fed‐
eral Rule of Civil Procedure 26. Rule 26(a)(2) requires a
litigant to disclose the identity of its expert witnesses pri‐
or to trial, and, “if the witness is one retained or specially
employed to provide expert testimony,” this disclosure
must be accompanied by a written report. Fed. R. Civ. P.
26(a)(2)(A)–(B). Thus, we agree with Higgins that Dr.
Margherita would fall under that section of Rule 26,
while Dr. Haacke (Higgins’s treating physician) would
not. However, Rule 26(a)(2)(C) makes clear that, for all
expert witnesses from whom a written report is not re‐
quired (which would include Dr. Haacke), the litigant
who seeks to use that expert’s opinion testimony must
nonetheless disclose to the other party “the subject mat‐
ter on which the witness is expected to present evidence
under Federal Rule of Evidence 702, 703, or 705” and “a
summary of the facts and opinions to which the witness
is expected to testify.” Fed. R. Civ. P. 26(a)(2)(C). Such
disclosure must be made at least 90 days before the date
set for trial. Id. (D)(i). Trial was set in this case for Febru‐
ary 10, 2014. So when Koch filed its summary judgment
motion on December 19, 2013, the date for filing expert
disclosures had passed. For that reason alone, the district

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No. 14‐2207 11
court would have been justified in granting summary
judgment for Koch.
Nevertheless, we agree with the district court that,
even if Higgins had complied with his Rule 26 expert
disclosure obligations, he failed to demonstrate Dr.
Haacke’s fitness as an expert. Federal Rule of Evidence
702 permits a “witness who is qualified as an expert by
knowledge, skill, experience, training, or education” to
give testimony only if “(a) the expert’s scientific, tech‐
nical, or other specialized knowledge will help the trier
of fact to understand the evidence or to determine a fact
in issue; (b) the testimony is based on sufficient facts or
data; (c) the testimony is the product of reliable princi‐
ples or methods; and (d) the expert has reliably applied
the principles and methods to the facts of the case.” Fed.
R. Evid. 702. Rule 702 and Daubert require the district
court to determine whether proposed expert testimony is
both relevant and reliable. Zelinski v. Columbia 300, Inc.,
335 F.3d 633, 640 (7th Cir. 2003). “To gauge reliability, the
district judge must determine whether the expert is qual‐
ified in the relevant field and whether the methodology
underlying the expertʹs conclusions is reliable.” Id. In do‐
ing so, “[a] district court enjoys broad latitude both in
deciding how to determine reliability and in making the
ultimate reliability determination.” Bryant v. City of Chi‐
cago, 200 F.3d 1092, 1098 (7th Cir. 2000). In this case, the
district court deemed Dr. Haacke’s qualifications and her
methodology too questionable to permit her to testify as
an expert.
Higgins argues that Dr. Haacke is qualified as a cau‐
sation expert by sheer virtue of her status as a pul‐

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12 No. 14‐2207
monologist, which endows her with “a knowledge base
superior to a layperson.” But that’s not enough. Treating
physicians are no different than any other expert for
purposes of Rule 702; before proffering expert testimony,
they must withstand Daubert scrutiny like everyone else.
See O’Conner v. Commonwealth Edison Co., 13 F.3d 1090,
1105 n.14 (7th Cir. 1994) (“[W]e do not distinguish the
treating physician from other experts when the treating
physician is offering expert testimony regarding causa‐
tion.”). Higgins also contends that because Dr. Haacke
has twenty years of experience as a board certified pul‐
monologist, “[i]t goes without saying she understands …
reactive airways dysfunction syndrome.” Again, Higgins
seems to misunderstand the requirements of Daubert and
Rule 702.
As Judge Tinder articulated when he was a district
judge in the Southern District of Indiana, although a doc‐
tor may have “experience diagnosing and treating asth‐
ma … that does not make him qualified to ‘assess its gen‐
esis.’” Cunningham v. Masterwear, Inc., 2007 WL 1164832,
at *10 (S.D. Ind. Apr. 19, 2007). Higgins, however, put
forth no evidence that Dr. Haacke has ever treated an‐
other patient for chlorine gas exposure or has any train‐
ing in toxicology. Nor has Higgins established that Dr.
Haacke employed a reliable methodology in forming her
causation opinion (even assuming she is qualified to do
so). The record demonstrates that Dr. Haacke essentially
diagnosed Higgins after listening to his own description
of his symptoms and the events at Holiday World—some
fourteen months after the fact—and after looking at the
results (though not the underlying data) of the pulmo‐
nary function study conducted by another doctor the

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No. 14‐2207 13
year before. But the record is silent on whether Dr.
Haacke considered other possible causes of Higgins’s
ailments and, if so, how and why she ruled them out.
That is problematic, because Higgins told the district
court that Dr. Haacke had assessed the cause of his ail‐
ments by employing “differential diagnosis.” “Differen‐
tial diagnosis” actually refers to a method of diagnosing
an ailment, not determining its cause. See Myers, 629 F.3d
at 644. “Differential etiology,” on the other hand, is a
causation‐determining methodology. Id. But, to be valid‐
ly conducted, an expert must systematically “rule in” and
“rule out” potential causes in arriving at her ultimate
conclusion. Id. Higgins made no showing that this was
done.
“Many times we have emphasized that expertsʹ work
is admissible only to the extent it is reasoned, uses the
methods of the discipline, and is founded on data.” Lang
v. Kohl’s Food Stores, Inc., 217 F.3d 919, 924 (7th Cir. 2000).
Here, Higgins simply failed to demonstrate this to be
true with respect to Dr. Haacke’s causation opinion. Ac‐
cordingly, we conclude that it was well within the district
court’s discretion to deem Dr. Haacke unqualified to
proffer expert testimony, even setting aside Higgins’s
non‐compliance with Rule 26.
III. Conclusion
For the foregoing reasons, we A FFIRM the district
court’s grant of summary judgment.

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