Engineering Expert Excluded from Testifying Because He Did Not Perform Any Tests to Form His Opinions – Bielskis v. Louisville Ladder, Inc.

While not every civil lawsuit requires a party to hire an expert, there are some instances where an expert’s opinion and testimony are vital to the case’s outcome. For example, if a plaintiff is making medical malpractice claims against a doctor or hospital, he or she will likely hire a medical expert to help support those claims. Likewise, in a product liability lawsuit, a party would generally need to hire some sort of expert to help prove that there was in fact a design or manufacturing defect. The vital nature of these experts’ testimony means that if for some reason those experts’ opinions are barred, the plaintiff will have an extremely difficult time proving the defendant’s negligence.

This is exactly what happened in the product liability lawsuit of Raymond Bielskis v. Louisville Ladder, Inc., No. 10-1194 (November 18, 2011). Bielskis filed a lawsuit against Louisville Ladder in which he claimed that its scaffolding design was defective and caused his work injury. In order to prove his claims, Bielskis’s attorneys had hired an engineering expert. After the trial court barred the engineering expert’s testimony, Bielskis filed an appeal in which he asked the court to reinstate his expert’s testimony.

Bielskis arose out of a fall Bielskis had while using a scaffold constructed by Louisville Ladder. Bielskis had originally purchased the scaffold in 1997 while working as an acoustical ceiling carpenter for R.G. Construction. During that time, Bielskis was responsible for providing the equipment and scaffolding for most of his jobs. However, in 2001, Bielskis began working for International Decorators, who generally supplied its workers with scaffolding equipment. As a result, Bielskis rarely used his Louisville Ladder scaffold after switching employers in 2001.

Then in 2005, Bielskis decided to use his Louisville Ladder scaffold on a job. Bielskis inspected the scaffold’s condition before using it; however, not noting any problems, Bielskis determined it was safe to use. But when he placed his weight onto one of the scaffold’s caster stems, the scaffold broke and collapsed. Bielskis fell and injured himself; that scaffolding injury is the subject of the current lawsuit.

Bielskis sued Louisville Ladder alleging negligence and strict liability based on manufacturing defects, design defects, failure to warn and res ipsa loquitur. Bielskis then retained an engineering expert, Neil Mizen, to testify regarding Louisville Ladder’s faulty design. In his report, Mizen stated that the scaffold’s caster had failed due to a “brittle fracture” that caused the scaffold to snap under the pressure. This opinion was based on an examination Mizen had made of the caster; he then used his knowledge of engineering principles to conclude that the brittle fracture was caused by excess tensile stress caused by over-tightening of the caster.

Therefore, Mizen’s opinion was that if the caster had not been tightened as much, that it would not have caused the brittle fracture and Bielskis’s subsequent fall. He further stated that the problem could have been avoided either by attaching the wheel with a different mechanism or by not tightening the caster to such a degree.

In response, Louisville Ladder hired its own engineering expert. Like Mizen, Louisville Ladder’s expert concluded that there was a brittle fracture. However, the Louisville Ladder expert conducted more in-depth testing, after which he concluded that the caster stem actually failed because it was too loose rather than too tight. HIs conclusions were based on extensive tests he had run on the Louisville Ladder; Mizen admitted that he had not run any formal tests regarding Bielskis’s work injury.

Louisville Ladder moved to bar Mizen’s testimony on the basis that it was not founded on any established data or testing; instead, Mizen’s testimony was a leap of faith. The U.S. District Court conducted a Daubert hearing, in which it analyzed the reliability of Mizen’s testimony. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 US 579, sets forth a nonexhaustive list of factors for courts to consider assessing an expert’s methods:

  1. whether the theory has been or is capable of being tested;
  2. whether it has been peer reviewed and published;
  3. the potential error rate; and
  4. the level of acceptance.

The court agreed with the defendants and barred Mizen from testifying on the basis that he had failed to meet any of the above four factors and had in fact made no attempt to test his theory. And while Bielskis appealed this decision, the 7th Circuit Court agreed with the lower court. It held that Mizen’s sources and opinions were pure speculation. As a result, his opinions were not reliable and were correctly excluded by the lower court.

The court also reviewed whether Bielskis should be allowed to reopen discovery and find another engineering expert who would in fact test his methods. This request had been denied by the district court; the circuit court held that the lower court had correctly barred Bielskis from reopening discovery. It held that the “district court was entitled as a principle of case management to refuse Bielskis’ request for a second bite at the expert witness.” Therefore, despite Bielskis’s attempts to revive his case, the court’s summary judgment in favor of Louisville Ladder remains, thereby dismissing Bielskis’s case.

Kreisman Law Offices has been handling Illinois construction accident lawsuits for individuals and families for more than 36 years in and around Chicago, Cook County, and surrounding areas, including Chicago’s Bridgeport, Lincolnwood, Stickney, Chicago’s Mt. Greenwood, Calumet City, Countryside, and Hickory Hills.

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