Bielskis v. Louisville Ladder, Inc.

• Decision Date: 18 November 2011
• Docket Number: No. 10–1194.,10–1194.
• Parties: Raymond B. BIELSKIS, Plaintiff–Appellant, v. LOUISVILLE LADDER, INC., Defendant–Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

663 F.3d 887

86 Fed. R. Evid. Serv. 1597

Raymond B. BIELSKIS, Plaintiff–Appellant,

v.LOUISVILLE LADDER, INC., Defendant–Appellee.

No. 10–1194.

United States Court of Appeals, Seventh Circuit.

Argued Sept. 16, 2010.Decided Nov. 18, 2011.

William T. Cacciatore (argued), Attorney, Cacciatore & Associates, Rockford, IL, for Plaintiff–Appellant.

Garrett L. Boehm, Jr. (argued), Attorney, Johnson & Bell, Ltd., Chicago, IL, for Defendant–Appellee.

Before CUDAHY, ROVNER, and EVANS ^* Circuit Judges.ROVNER, Circuit Judge.

After falling from a three-foot high mini-scaffold and injuring his hand and knee, Raymond B. Bielskis brought this product liability action against Louisville Ladder, Incorporated, the manufacturer of the scaffold. The district court granted Louisville Ladder's motion to bar the trial testimony of Bielskis's expert witness, Neil J. Mizen. Subsequently, the district court granted Louisville Ladder's motion for summary judgment after concluding that Bielskis could not prove his case without expert testimony. Bielskis appeals, arguing primarily that the district court erred when it barred Mizen from testifying. We affirm.

I.

In 1997, Bielskis was working as an acoustical ceiling carpenter for R.G. Construction. R.G. Construction gave Bielskis the Louisville Ladder mini-scaffold (model number SM 1404) completely assembled, and he used it “occasionally” in his work duties. Then in 2001, Bielskis began working for International Decorators. Because International Decorators ordinarily supplied its workers with scaffolding, Bielskis rarely used his Louisville Ladder mini-scaffold. Indeed, between 2001 and 2005, Bielskis used the mini-scaffold on only one or two occasions to haul tools from his car to a job site.

On March 17, 2005, Bielskis was working acoustical ceiling tiles at a Motorola job site in Libertyville, Illinois. He had been working at that site for approximately two weeks and was slated to finish the job that day. For that reason, he had brought his own mini-scaffold so that he could use it to haul his tools back to his car when he completed the work at Motorola. Bielskis worked for several hours that morning on one of the scaffolds supplied by International Decorators, but around 9 a.m. a coworker borrowed the scaffold. At that point, Bielskis retrieved his own mini-scaffold from his car. Before working on it, Bielskis visually inspected the mini-scaffold to ensure that the rungs and the wheels were secure and properly positioned.

The mini-scaffold is approximately four feet long with a hinged side that allows it to collapse for storage. The sides of the scaffold have rungs which are used to place planks where the user may stand. The entire unit is mobile: it has four wheels that may be locked while the user is working and unlocked when moving the unit. Each wheel is attached to the scaffold with a caster and metal stem that screws into the scaffold leg, as shown in the figure below:

Image 1 (4.52" X 3.76") Available for Offline Print

Bielskis worked on the scaffold for several hours before the accident. Immediately before the scaffold collapsed, Bielskis had wheeled it into an office to install another ceiling tile and sprinkler-head cover. Once Bielskis had situated the mini-scaffold, he stepped onto the first plank (which was placed on the second rung) with one foot and placed his other foot on the second plank (placed on the third rung). As he began screwing the sprinkler head into place, the scaffold collapsed and he fell to the floor. When he attempted to pick up the scaffold, he realized that it had collapsed because the caster stem above one of the wheels had broken (see Figures 2 and 3 below).

Image 2 (5.03" X 2.9") Available for Offline Print

Relying on the diversity statute, 28 U.S.C. § 1332(a), (Bielskis is a citizen of Illinois and Louisville Ladder is a Delaware corporation with its principal place of business in Louisville, Kentucky), Bielskis brought this products liability action against Louisville Ladder, Incorporated. Bielskis's complaint contained four counts based on strict liability: design defect, manufacturing defect, failure to warn, and res ipsa loquitur. Bielskis also alleged that Louisville Ladder had been negligent in failing to properly test the threaded stud of the caster stem, failing to inspect the scaffold, failing to “repair the defective threaded stud,” and failing to warn consumers of a manufacturing defect in the scaffold. Louisville Ladder in turn filed a third-party complaint against Bielskis's employer at the time of the accident, International Decorators, seeking contribution to the extent of any of its workers' compensation liability. See 740 ILCS 100/1–5 (Illinois Joint Tortfeasor Contribution Act).

Bielskis retained Mizen to provide expert testimony at trial as to what caused the caster stem to break. Mizen obtained bachelor's and master's degrees in Mechanical Engineering in 1960 and 1961, respectively. Since that time he has held a number of engineering jobs, including working as a research engineer in the vehicle dynamics department of Cornell laboratory, where he developed packaging machinery and “numerically controlled manufacturing processes.” In 1971, Mizen founded Mizen Engineering Company, Inc., where he worked to design and build equipment and computer-based control systems for use in a variety of manufacturing processes—from a machine that assembles small parts to one that cleans parts used in compressors. Since 1970, Mizen has also testified as an expert in a wide range of cases covering areas such as manufacturing and design flaws, warnings, and use of equipment and tools.

In his written report, Mizen first described the “fractured roller caster.” He explained that the rolling caster allowed the scaffold to move in any direction, and that it was held to the scaffold by a “3/8 inch diameter threaded stud secured to the top flange of the caster.” This caster was in turn welded onto the bottom of the scaffold leg. Mizen went on to describe the types of stress that could have caused the stud to fail: he opined that the flange and shoulder would have borne all “compressive loads” and thus only “tensile stress” generated from tightening the caster when it was installed into the leg could have been responsible. Tensile stress refers to stress that leads to expansion (usually in length) while the volume stays constant. It is the opposite of compressive stress, which occurs when the material is under compression and the volume decreases. During his deposition, Mizen defined tensile strength as “[t]he ability of an object to resist tensile forces.”

Based on his examination of the fracture surface on the threaded stud, Mizen then concluded that the stud failed because of a “brittle fracture.” He based his opinion on the fact that the fracture surface had neither the “dull and fibrous” appearance nor the plastic deformation consistent with a “ductile fracture”—a fracture where the material pulls apart instead of snapping or cracking suddenly. Instead, the fracture surface revealed a clean break consistent with a brittle fracture. Mizen opined that the fracture was caused by excess tensile stress brought on by overtightening the threaded stem. Mizen concluded that the brittle fracture could have been avoided by either attaching the wheel with a different mechanism than the threaded stud or by not tightening the stud “beyond making it simply snug to the leg base.”

Louisville Ladder also retained an expert. Louisville Ladder's expert viewed the fracture surface through a stereomicroscope. The expert also conducted extensive testing and reconstructed the accident. Like Mizen, he concluded that the caster stem had sustained a brittle fracture. Unlike Mizen, however, he determined that the caster stem ultimately failed because it was too loose, not because it was too tight.

Louisville Ladder moved to bar Mizen's testimony, arguing that it was insufficiently reliable under Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993) and Federal Rule of Evidence 702. In particular, Louisville Ladder faulted Mizen for his failure to utilize any recognized scientific methodology to reach his conclusions. Moreover, Louisville Ladder argued, Mizen had neither tested nor examined the design alternatives that he had proposed.

The district court granted Louisville Ladder's motion. The court concluded that the methodology underlying Mizen's opinion was insufficiently reliable. The primary problem the court identified with Mizen's opinion was his leap, without data or testing, from the accepted premise that a crack without plastic deformation is a brittle fracture to his ultimate conclusion that the caster stem here broke because it was overtightened. Essentially, the court believed Mizen's opinion fell short on each of the Daubert factors and was thus inadmissible.

Bielskis moved to reopen discovery in order to obtain another liability expert, but the court denied his motion. Louisville Ladder then moved for summary judgment. The court granted its motion, concluding that without expert testimony, Bielskis lacked evidence to support his product liability claim. Bielskis appeals.

II.

Before turning to the merits of Bielskis's arguments on appeal, we must briefly resolve a jurisdictional matter. The district court granted Louisville Ladder's motion for summary judgment on December 30, 2009. Bielskis filed his notice of appeal on January 25, 2010. The following day, January 26, the district court entered judgment under Rule 58. See Fed.R.Civ.P. 58. Thus, we treat Bielskis's notice of appeal as having been filed on the day the court entered its Rule 58 judgment. Fed. R.App. P. 4(a)(2); see also FirsTier Mortg. Co. v. Investors Mortg. Ins. Co., 498 U.S. 269, 272–73, 111 S.Ct. 648, 112 L.Ed.2d 743 (1991). The Rule 58 judgment itself, however, raises a second, more complicated jurisdictional issue: neither the district court...