Seventh Circuit Rejects Expert's Ipse Dixit
The Catholic Church instructs us that "[f]alling into vice is as easy as falling off a ladder. To acquire virtue, however, is more arduous." Well, so is proving that the ladder you fell off of was defective.
The Seventh Circuit recently issued an opinion applying the principles of Daubert to an expert's testimony that a portable scaffolding that collapsed was defective. See Bielskis v. Louisville Ladder, Inc., No. 10-1194, Slip op. (7th Cir. Nov. 18, 2011). Although the opinion isn't groundbreaking, it is a good reminder that a plaintiff cannot prove a defect with just the ipse dixit of an expert.
In Bielskis, the plaintiff -- a carpenter who worked on ceilings -- was injured when his personal mini-scaffolding collapsed when the caster stem broke above one of the wheels. The plaintiff sued the manufacturer in strict liability for design defect, manufacturing defect failure to warn, and "res ipsa loquitur." (There is no such thing as "res ipsa" in strict liability, only negligence. I previously have written in this blog and the National Law Journal about res ipsa's strict liability cousin, "malfunction theory.")
Certainly the defendant had not maintained any control over the 8-year-old scaffolding. Plaintiff had originally received a fully-assembled mini-scaffold from his employer that he used occasionally for four years. He then switched jobs, and his new employer typically supplied the scaffolding at jobsites. In his new job, he only had used his own scaffold one or two times over four years, and that was to haul tools to and from his car.
Plaintiff hired a mechanical engineer as an expert, who concluded that the caster stem had sustained a brittle fracture caused by excess tensile stress brought on by overtightening the stem when the scaffolding had been assembled. The defendant's expert agreed that there had been a brittle fracture, but, after conducting testing and accident reconstruction, concluded that it was the result of the caster stem being too loose, not too tight.
The trial court excluded the plaintiff's expert testimony and then granted the defendant's motion for summary judgment because plaintiff had no proof of defect. Plaintiff asked for an opportunity to secure another expert, and the trial court denied the request.
On appeal, the Seventh Circuit held that the trial court had not abused its discretion because the expert had been "'talking off the cuff' -- without data or analysis." Applying Daubert factors, the court noted that the expert merely examined the scaffold with the naked eye for about an hour. He "made not attempt to test his hypothesis." Slip op. at 12. He did not even measure the caster stem, which he incorrectly believed to be 3/8", and he had no idea what alloy the caster stem was made of.
In contrast, the defense expert had used digital calipers to take various measurements, created replicas of the fractures, and performed stress analysis with the caster in various positions. Id. at 13.
The plaintiff's expert offered no evidence that there would be any consensus in the engineering community supporting his conclusion that the fracture resulted from overtightening. He could not cite any error rate for his methodology, as he had merely eyeballed it.
And his testimony about a feasible alternative design was nothing short of ipse dixit:
His original report simply contained the unelaborated conclusion that "[m]eans other than the threaded stud could have been used to hold the roller to the conveyor." Then at his deposition he suggested that . . . the scaffold could have been supported by a "set screw, a spring, or a snap ring." When asked if those design alternatives had been tested, [he] stated, "I don't have to test it." Likewise, he dismissed the question of whether any of his proposed design alternatives were used in the marketplace on scaffolds or had been recommended or required by any industry-wide standards for climbing equipment . . . Without more, there is no way to assure that Mizen's proposed alternatives are "the product of reliable principles and methods."
Id. at 14 (citations omitted).
The court held that without expert testimony, plaintiff could not get to the jury on the question of defect, as he simply failed to prove that the mini-scaffold was defective at the time it left the manufacturer's control, and he failed to exclude the possibility of alternative causes, such as abnormal use:
Bielskis has not presented any evidence about who assembled the scaffold and whether it was assembled in conformity with the manufacturer's warnings or specifications. Even [the expert's] testimony, had it not been barred, did not point to a defect at the time the scaffold left the manufacturer. He stated at his deposition that the failed caster did not have a design or manufacturing defect but rather "an installation defect" that occurred because the caster stem was installed "with excessive stress at the moment of installation."
Id. at 21.
Bielskis is an excellent reminder that it is not enough for an expert to be qualified. He or she must investigate the issues consistent with accepted methodology and test his or her conclusions, making sure to link each part of the syllogism to recognized scientific principles.
Interestingly, on the same day that the Seventh Circuit issued Bielskis, the Eleventh Circuit issued an unpublished per curiam opinion that also rejected a plaintiff's expert testimony on defect. See Cannioto v. Louisville Ladder, Inc., No. 11-12885, Slip op. (11th Cir. Nov. 18, 2011). Clearly, submitting admissible expert proof of a defect in ladder litigation is not as easy as falling off a ladder.
