Seventh Circuit Upholds Exclusion of Plaintff’s Expert in Defective Scaffolding Claim – Bielskis v. Louisville Ladders Inc.

By December 7, 2011 Product Liability

As a southern Illinois product liability attorney, I was interested to see a case in the Seventh U.S. Circuit Court of Appeals involving an accident with allegedly defective scaffolding. In Bielskis v. Louisville Ladders Inc., Raymond Bielskis sued over injuries he sustained after falling from a three-foot mini-scaffold. The case turned on his ability to prove his claim with an expert witness. The trial court found that his expert was qualified to testify, but failed a Daubert test and thus was barred from testifying. Without his expert, the court then ruled, Bielskis could not continue his case. In this opinion, the Seventh U.S. Circuit Court of Appeals upholds those decisions.
Bielskis was an acoustical ceiling carpenter for International Decoration at the time of his 2005 accident. A previous employer had given him a mini-scaffold that he rarely used, but used it on that day because a colleague had borrowed his larger scaffold. After working on the mini-scaffold for several hours without incident, Bielskis wheeled it into a different room, climbed to the top and began working, whereupon it collapsed. On inspection, he saw that a caster stem above one wheel had broken. He eventually brought a lawsuit against the manufacturer, Louisville Ladders, for design and manufacturing defects and failure to warn, as well as several negligence claims. To support his claims, he hired expert witness Neil Mizen, a mechanical engineer, who wrote a report on the reason for the failure. Louisville Ladder attacked this report as unreliable because Mizen did not use stringent enough scientific methodology. Bielskis moved to reopen discovery so he could find another expert, but the trial court denied this and then granted summary judgment for Louisville Ladder, saying Bielskis could not support his claim without an expert. Bielskis appealed.
On appeal, he argued that the trial court erred in dismissing Mizen’s testimony in the first place. That court faulted Mizen for his “leap” from the assertion that the caster stem broke — with which the defense agreed — to the explanation that it broke because it was screwed in too tightly. Bielskis argued that this testimony was not unreliable and at worst “shaky,” admissible though vulnerable to cross-examination. The Seventh Circuit disagreed. Mizen made no attempt to test his hypothesis, it said, and indeed he even mistook the size of the caster stem at first. By contrast, the defense expert performed stress analysis tests with the caster in different configurations. Furthermore, the court said, he proposed no design alternatives aside from “other means” without demonstrating pervasive industry use. Thus, his opinion would likely not have helped the jury make a decision, the court said. Furthermore, it upheld the decision not to allow Bielskis a continuance to find a new expert, saying the district court was entitled to keep discovery closed. Finally, it upheld the choice to dismiss the case, saying Bielskis could not prove his case without expert testimony.
This case is disturbing to me as a Missouri defective products lawyer, because it appears to give federal district courts the power to end cases after one bad choice of expert witness. Expert witnesses are required in almost every product liability case, as the court notes, so they are vital. If a trial court does not like the original expert witness, it may reject that expert — but plaintiffs can be and usually are given a chance to find an alternative. The Seventh quoted its own previous decision showing the dangers of this approach, saying it is generally prejudicial if a court causes a need for a continuance and then denies the continuance. It is not clear from this decision why the Seventh declined to find prejudice in this case, since the circumstances certainly echo that description. As an experienced St. Louis personal injury attorney, I work hard to find my clients strong expert testimony to avoid this kind of situation.


If you or someone you love suffered serious injuries after an accident with a defective product, don’t hesitate to contact Carey, Danis & Lowe for help. For a free, confidential case evaluation, send us a message through our website or call toll-free at 1-877-678-3400.
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