In the
United States Court of Appeals
For the Seventh Circuit
No. 10-1194
R AYMOND B. B IELSKIS,
Plaintiff-Appellant,
v.
L OUISVILLE L ADDER, INC.,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 1:07-cv-01411—Harry D. Leinenweber, Judge.
A RGUED S EPTEMBER 16, 2010—D ECIDED N OVEMBER 18, 2011
Before C UDAHY, R OVNER, and E VANS , Circuit Judges.
R OVNER, Circuit Judge. After falling from a three-foot
high mini-scaffold and injuring his hand and knee, Ray-
mond B. Bielskis brought this product liability action
against Louisville Ladder, Incorporated, the manufacturer
Circuit Judge Evans died on August 10, 2011, and did not
participate in the decision of this case, which is being resolved
by a quorum of the panel under 28 U.S.C. § 46(d).
2 No. 10-1194
of the scaffold. The district court granted Louisville Lad-
der’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 judg-
ment 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
No. 10-1194 3
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:
Figure 1
4 No. 10-1194
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).
Figure 2 Figure 3
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
No. 10-1194 5
business in Louisville, Kentucky), Bielskis brought this
products liability action against Louisville Ladder, Incor-
porated. Bielskis’s complaint contained four counts
based on strict liability: design defect, manufacturing
defect, failure to warn, and res ipsa loquiter. 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, Interna-
tional 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 manu-
facturing processes.” In 1971, Mizen founded Mizen
Engineering Company, Inc., where he worked to de-
sign and build equipment and computer-based control
systems for use in a variety of manufacturing pro-
cesses—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
6 No. 10-1194
covering areas such as manufacturing and design flaws,
warnings, and use of equipment and tools.
In his written report, Mizen first described the “frac-
tured 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 de-
formation 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
No. 10-1194 7
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 dif-
ferent mechanism than the threaded stud or by not tight-
ening 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 (1993) and
Federal Rule of Evidence 702. In particular, Louisville
Ladder faulted Mizen for his failure to utilize any recog-
nized 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
8 No. 10-1194
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 ex-
pert 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 (1991). The Rule 58 judgment itself,
however, raises a second, more complicated jurisdic-
tional issue: neither the district court’s summary judg-
ment order nor its Rule 58 judgment mentions Louis-
ville Ladder’s outstanding third-party complaint against
Bielskis’s employer, International Decorators. Ordinarily,
“any order . . . that adjudicates fewer than all the claims
or the rights and liabilities of fewer than all the parties
does not end the action as to any of the claims or
No. 10-1194 9
parties . . . .” Fed. R. Civ. P. 54(b). When there are claims
or parties remaining, Rule 54(b) authorizes the district
court to “direct entry of a final judgment as to one or
more, but fewer than all, claims or parties only if the
court expressly determines that there is no just reason
for delay.” Rule 54(b) applies whenever an action “pre-
sents more than one claim for relief—whether as a
claim, counterclaim, crossclaim, or third-party claim—
or when multiple parties are involved[.]” Id.
Although the existence of the third-party claim against
International Decorators brings this action within the
technical language of Rule 54(b), we think as a practical
matter that the court’s entry of a Rule 58 judgment
obviates the need for a Rule 54(b) certification. According
to Rule 54(b), without the certification, “any order or
other decision, however designated, that adjudicates fewer
than all the claims or the rights and liabilities of fewer than all
the parties does not end the action as to any of the claims
or parties and may be revised at any time before the
entry of a judgment adjudicating all the claims and all
the parties’ rights and liabilities.” (emphasis added). Al-
though the district court failed to explicitly resolve Louis-
ville Ladder’s third-party claim against International
Decorators, by entering summary judgment in Louisville
Ladder’s favor, the court necessarily adjudicated the
claim against International Decorators. The entry of
judgment under Rule 58 therefore appropriately con-
cluded the litigation in the district court. See 28 U.S.C.
§ 1291 (giving courts of appeals jurisdiction over “all final
decisions of the district courts”); cf. Local P-171 Amalgam-
ated Meat Cutters & Butcher Workmen v. Thompson Farms
10 No. 10-1194
Co., 642 F.2d 1065, 1072 (7th Cir. 1981) (“The formal
prerequisites of Rule 58 for an effective judgment serve
the same signalling function as the Rule 54(b) require-
ment of direction for entry of judgment; the same prag-
matic analysis should therefore apply when that require-
ment is not met.”).
Turning to the merits, Bielskis argues that the district
court erred by excluding Mizen’s testimony. The admis-
sion of expert testimony is governed by Federal Rule of
Evidence 702 and the principles outlined in Daubert; see
also Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 147-49
(1999) (extending application of Daubert factors to engi-
neers and other non-scientific experts). It is the district
court’s role to ensure that expert testimony is both
relevant and reliable. Daubert, 509 U.S. at 589. To do so,
the district court must ascertain whether the expert is
qualified, whether his or her methodology is scientifically
reliable, and whether the testimony will “assist the trier
of fact to understand the evidence or to determine a fact
in issue.” Fed. R. Evid. 702; see also Myers v. Ill. Cent. R.R.
Co., 629 F.3d 639, 644 (7th Cir. 2010) (outlining “three-step
analysis” district court utilizes before admitting expert
testimony). Daubert sets forth the following non-exhaus-
tive factors for the district court to consider when
assessing an expert’s methodology: (1) whether the theory
has been or is capable of being tested; (2) whether the
theory has been subjected to peer review and publica-
tion; (3) the theory’s known or potential rate of error;
and (4) the theory’s level of acceptance within the
relevant community. Daubert, 509 U.S. at 593-94. The
Rule 702 inquiry is “a flexible one,” id. at 594, and we give
No. 10-1194 11
the district court wide latitude in performing its gate-
keeping function and determining both how to measure
the reliability of expert testimony and whether the testi-
mony itself is reliable, see Gayton v. McCoy, 593 F.3d 610,
616 (7th Cir. 2010). We review the district court’s deci-
sion to exclude expert testimony for an abuse of discre-
tion. Myers, 629 F.3d at 641; United States v. Lupton, 620
F.3d 790, 798-99 (7th Cir. 2010).
After concluding that Mizen’s education and experi-
ence rendered him qualified to testify, the district court
focused on Mizen’s methodology, which it concluded fell
short across the board under the Daubert factors. The
court concluded that Mizen’s opinion was not reliable
in light of his leap from the accepted premise that a crack
without plastic deformation is a brittle fracture to his
ultimate conclusion that the caster stem broke because
it had been screwed in too tightly. When questioned as
to what scientific methodology he used to reach this
conclusion, Mizen replied that he had relied on “basic
engineering intelligence” and “solid engineering prin-
ciples that any other engineer would use.”
After Louisville Ladder moved to exclude his testi-
mony, Mizen supplemented his opinion with several
articles that he claimed supported his conclusion. At his
deposition, he explained that he located the articles by
using the Internet search engine Google and typing in
the phrase “brittle fracture.” We think the district court
was within its discretion to conclude that Mizen’s meth-
odology sounded more like the sort of “[t]alking off the
cuff”—without data or analysis—that we have repeatedly
12 No. 10-1194
characterized as insufficient. See, e.g., Lang v. Kohl’s
Food Stores, Inc., 217 F.3d 919, 924 (7th Cir. 2000).
Application of the Daubert factors demonstrates how
Mizen’s opinion falls short. An expert’s opinion must be
reasoned and founded on data. It must also utilize the
methods of the relevant discipline—in this case, engi-
neering. Bielskis insists that Mizen’s opinion is suf-
ficiently reliable because the question of how the caster
stem broke is not a complicated one, and the jury
should be allowed to decide for itself the factual issue
of what caused the brittle fracture to occur. It is true that
the district court’s admissibility determination is not
intended to supplant the adversarial process. We have
recognized that “shaky” expert testimony may be ad-
missible, subject to attack on cross-examination. See
Metavante Corp. v. Emigrant Sav. Bank, 619 F.3d 748, 762
(7th Cir. 2010) (internal quotations omitted). Although it
is a close question, the district court was within its dis-
cretion to conclude that Mizen’s testimony was unreli-
able, not simply shaky.
First, Mizen made no attempt to test his hypothesis.
Bielskis suggests that this inquiry is unnecessary because
Mizen needed nothing more than his engineering back-
ground and experience to conclude that the caster stem
collapsed on account of a brittle fracture brought on by
overtightening. But that theory is certainly capable of
being tested. Mizen reached his conclusion by examining
the broken scaffold for approximately an hour with
his naked eye. He did not take the time to measure the
caster stem: indeed, he assumed in his report that
No. 10-1194 13
the caster stem was 3/8” and only later discovered that
it was in fact ½.” He admitted in his deposition that he
had no idea what alloy was used to construct the caster
stem and that he had made no effort to quantify its
tensile strength or yield strength.
Bielskis seems to be suggesting that no engineer would
have undertaken testing, but a comparison with the
report of Louisville Ladder’s expert opinion belies
that claim. For example, Louisville Ladder’s expert,
Engineering Systems Inc. (“ESI”), first used digital
calipers to measure the height between the HEX mating
surface, the caster insert mating surface, and the corre-
sponding fracture surfaces. Positive and negative rep-
licas were also created of the fracture surfaces so that
the fractographic appearance of the surfaces could be
examined in detail. ESI then performed stress analysis
calculations with the caster installed in two different
configurations in order to assess the stresses present
at the stud site with different degrees of tightness. Al-
though the methodology used by ESI is certainly not
the only way testing could have been performed, it
exhibits that testing was not only possible but helpful.
Mizen maintained that his theory—that a fracture
without plastic deformation is a brittle fracture—is
widely accepted in the engineering community. Bielskis
argues on appeal that the fact that Louisville Ladder’s
experts also concluded that the caster stem failed as a
result of a brittle fracture further demonstrates that
Mizen’s methodology was reliable. But as the district
court recognized, it was Mizen’s further assertion that
14 No. 10-1194
the caster stem failed from excessive stress as a result
of overtightening that was unreliable. Mizen sub-
mitted nothing with his opinion demonstrating that
there would be any consensus in the engineering commu-
nity for such a conclusion. Nor is it possible to assess
the known or potential rate of error behind Mizen’s
methodology because he used no particular methodology
to reach his conclusions. And of course Mizen’s “method-
ology” of looking at the failed caster stem with his
naked eye could not be subjected to peer review.
Likewise, Mizen’s proposed design alternatives do not
survive scrutiny. His original expert report simply con-
tained 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 sug-
gested that instead of a threaded stud, 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, Mizen stated, “I don’t have to test it.” Likewise,
he dismissed the question of whether any of his pro-
posed design alternatives were used in the marketplace
on scaffolds or had been recommended or required by
any industry-wide standards for climbing equipment,
stating, “It is the principles that [are] required, not the
exact implementation.” But “the principles” alone hardly
constitute testimony based on “sufficient facts or data.”
Without more, there is no way to assure that Mizen’s
proposed alternatives are “the product of reliable prin-
ciples and methods.” Fed. R. Evid. 702 (emphasis added);
see also Dhillon v. Crown Controls Corp., 269 F.3d 865, 870
(7th Cir. 2001) (“In alternative design cases, we have
No. 10-1194 15
consistently recognized the importance of testing the
alternative design.”).
Bielskis asserts that by excluding Mizen’s testimony,
the district court usurped the jury’s task of analyzing
the “factual underpinnings” of the expert’s conclusion
and assessing whether that conclusion was correct. See
Smith v. Ford Motor Co., 215 F.3d 713, 718 (7th Cir. 2000). He
relies for support on Smith v. Ford Motor Company, where
we concluded that the district court had inappropri-
ately excluded the testimony of two proposed experts.
In Smith, the plaintiff sought to admit the testimony of a
metallurgical engineer and a mechanical engineer to
opine as to why the steering mechanism in a van failed.
Smith, 215 F.3d at 716-17. The court first concluded
that because neither expert was a qualified automotive
engineer their testimony was inadmissible. Id. at 717.
We determined that this was an abuse of discretion
because the experts’ lack of qualifications as automo-
tive engineers did not necessarily preclude them from
being qualified in other areas that may be relevant to the
case—in short, their inability to opine on the ultimate
issue for the trier of fact did not mean they could not
testify regarding other relevant factual issues. Id. at 720.
The district court in Smith also deemed the experts’
methodologies unreliable because they had not been
peer-reviewed. Id. at 720. We likewise deemed this an
abuse of discretion because the district court had errone-
ously focused on the single Daubert factor of whether
the experts’ techniques had been peer-reviewed. Id. at
721; see also Daubert, 509 U.S. at 594 (publication or lack
16 No. 10-1194
thereof in a peer-reviewed journal is “relevant, though
not dispositive consideration”); Dhillon, 269 F.3d at 870
(“Of course, Daubert is a flexible test and no single
factor, even testing, is dispositive.”).
Bielskis makes much of our observation in Smith that
when evaluating expert testimony the district court
should avoid scrutinizing “[t]he soundness of the factual
underpinnings of the expert’s analysis and the cor-
rectness of the expert’s conclusions based on that analy-
sis.” Smith, 215 F.3d at 718. But the district court here
did not take issue with the factual underpinnings of
Mizen’s analysis or his ultimate conclusion that the
caster stem sustained a brittle fracture because it was
overtightened. Instead, the district court did precisely
what we recognized as appropriate in Smith by deter-
mining whether it “ ‘was appropriate for [the expert] to
rely on the test that he administered and upon the
sources of information which he employed.’ ” Smith, 215
F.3d at 718 (quoting Walker v. Soo Line R.R. Co., 208
F.3d 581, 587 (7th Cir. 2000)). As discussed above, the
district court concluded that Mizen’s “sources of informa-
tion”—which were nothing more than his own specula-
tion—were insufficient. Unsurprisingly, the court was also
unsatisfied with the “test . . . administered” because there
was no test administered. Nor did the district court here
overemphasize a single Daubert factor as the district court
in Smith had done. In its ruling, the district court here
specifically recognized that no one factor is dispositive,
stating, “[Bielskis’s] failure to establish the admissibility
under any single Daubert factor is not dispositive, but
Plaintiff’s failure to establish admissibility under any of
No. 10-1194 17
the factors leaves the Court no choice but to bar Mizen’s
testimony.” Thus, Smith, where the district court errone-
ously placed dispositive weight on the single factor of
whether the theory had been subjected to peer review,
does not help Bielskis.
We do think it is a close question whether Mizen should
have been allowed to opine simply that the caster stem
sustained a brittle fracture. This conclusion, without
more, may be supportable based on Mizen’s “extensive
and specialized experience.” Kumho, 526 U.S. at 156
(“[N]o one denies that an expert might draw a con-
clusion from a set of observations based on extensive
specialized experience. Nor does anyone deny that, as a
general matter, tire abuse may often be identified by
qualified experts through visual or tactile inspection of
the tire.”). But this conclusion would add little if any-
thing to Bielskis’s case, particularly since the parties
agreed that the caster stem sustained a brittle fracture.
Thus, that portion of Mizen’s opinion would not have
assisted the jury with a fact in issue. Given the entirety
of Mizen’s testimony and its lack of the recognized hall-
marks of scientific reliability, the district court did not
abuse its considerable discretion by barring Mizen’s
testimony in its entirety.
Nor did the district court abuse its discretion when
it denied Bielskis’s motion for a continuance to obtain
another expert. To support his argument, Bielskis again
relies on Smith. Because we remanded in Smith, we ex-
plicitly declined to reach the issue of whether the district
court had abused its discretion by denying a continuance.
18 No. 10-1194
Smith, 215 F.3d at 722. We noted however, and Bielskis
relies heavily on this observation, that “courts have
generally found an abuse of discretion” when “a trial
court’s own action causes a need for a continuance
and that court then denies the continuance, resulting
in prejudice to a party.” Id. The two cases Smith cites in
support of that proposition, however, are entirely dis-
tinguishable. In Fowler v. Jones, 899 F.2d 1088, 1095 (11th
Cir. 1990), the court concluded that an in forma pauperis
litigant should be entitled to rely on the United States
Marshal to serve process, and thus the district court
had abused its discretion by denying a continuance to
allow the plaintiff to perfect service on three defendants,
id. at 1095-96. In the second cited case, the Ninth Circuit
concluded that a defendant corporation was denied a
fair trial after the district court assured the corporation
that it would accommodate the travel schedule of the
corporation’s expert but then concluded the trial before
the expert could return from the scheduled trip and
testify. Fenner v. Dependable Trucking Co., 716 F.2d 598, 601-
02 (9th Cir. 1983) (“[T]he district court’s statement to
counsel that it would work out the problem faced by the
defendants because their expert would be unavailable
until July 20 lulled Dependable and Ralphs into a false
sense of security that the absent witness would be
allowed to testify.”).
Unlike in those cases, the district court here did not
affirmatively “cause” the need for a continuance. The
district court has broad latitude in determining when to
grant a continuance. E.g., Morris v. Slappy, 461 U.S. 1, 11
(1983); United States v. Smith, 562 F.3d 866, 871 (7th Cir.
No. 10-1194 19
2009) (“Whether to grant or deny a continuance is a
matter of case management.”). We will overturn its deci-
sion only when the judge has acted unreasonably and
actual prejudice is shown. Smith, 562 F.3d at 871. Although
the question is a close one, we do not believe the
district court here abused its discretion. Discovery had
closed when Bielskis requested a continuance to obtain
a new expert. The district court was entitled as a
principle of case management to refuse Bielskis’s request
for a second bite at the expert witness apple. Id. at 871
(“Having given Smith a fair opportunity to retain a
suitable expert, the court was under no obligation to let
him have another chance to present expert testimony . . . .
‘If at first you don’t succeed, try, try again’ might make
a memorable maxim, but it is ill-suited as a principle
for case management.”).
Finally, Bielskis argues that after barring his expert, the
district court erroneously entered summary judgment in
favor of Louisville Ladder. We review the district court’s
grant of summary judgment de novo, construing all facts
and inferences in Bielskis’s favor. Gross v. PPG Indus., Inc.,
636 F.3d 884, 888 (7th Cir. 2011). Summary judgment is
appropriate when the admissible evidence shows that
“there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.” Fed.
R. Civ. P. 56(a), (c); see also Anderson v. Liberty Lobby Inc.,
477 U.S. 242, 255 (1986). The district court granted sum-
mary judgment after concluding that without expert
testimony, Bielskis did not have sufficient evidence to
sustain his product liability claim. Bielskis argues that
20 No. 10-1194
under Illinois law, he could have proven his case without
expert testimony. In most cases, products liability actions
alleging manufacturing or design defects require expert
testimony. See Baltus v. Weaver Div. of Kidde & Co., 557
N.E.2d 580, 588-89 (Ill. App. Ct. 1990) (“Products lia-
bility actions, however, often involve specialized knowl-
edge or expertise outside the layman’s knowledge. Man-
ufacturing negligence resulting in an unreasonably dan-
gerous product seems particularly appropriate for ex-
pert opinion.”). However, as Bielskis points out, in certain
cases expert testimony may not be necessary. He relies
for support primarily on Tweedy v. Wright Ford Sales, Inc.,
357 N.E.2d 449 (Ill. 1976). In Tweedy, the Illinois Supreme
Court affirmed a verdict against Ford Motor Company
after the brakes on the plaintiff’s 1966 Ford LTD failed
when he attempted to stop at an intersection. Id. The
plaintiff did not offer expert testimony specifying the
cause of the brake failure; instead he attempted to
prove that they were defective by relying on the simple
fact that the brakes had failed without warning. Id. at
451. The Illinois court concluded that the plaintiff did
not need expert testimony and could rely on the failed
brakes to prove a defect. Id. at 451-52. The court ex-
plained that a plaintiff makes out a “prima facie case
that a product was defective and that the defect existed
when it left the manufacturer’s control . . . by proof that
in the absence of abnormal use or reasonable secondary
causes the product failed ‘to perform in the manner
reasonably to be expected in light of [its] nature and
intended function.’ ” Id. at 452 (quoting 51 A.L.R.3d 8,
§ 5[a]).
No. 10-1194 21
Bielskis comes close to establishing a prima facie case:
certainly a scaffold could be expected not to break and
collapse under the weight of a single individual working
on it. But unlike the plaintiff in Tweedy, Bielskis has
failed to prove that the scaffold was defective at the time
it left Louisville Ladder’s control. He has also failed to
exclude the possibility of “abnormal use or reasonable
secondary causes.” The mini-scaffold was already assem-
bled when Bielskis’s employer at the time, R.G. Construc-
tion, gave it to him in 1997. Bielskis has not presented
any evidence about who assembled the scaffold and
whether it was assembled in conformity with the manu-
facturer’s warnings or specifications. Even Mizen’s testi-
mony, had it not been barred, did not point to a defect
extant 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.” But he had neither reviewed the scaf-
fold assembly instructions nor ascertained who had
assembled the scaffold. When asked who “installed the
casters into the leg tube inserts,” Mizen stated that he
did not know. When asked if he had any speculation,
Mizen replied, “I speculate that the manufacturer did
not. They shipped the scaffold without the casters in-
stalled. I was told that. But I don’t know.”
Unlike the failed brakes in Tweedy, which were encased
in the wheel mechanism, the caster stem was exposed
and subject to wear and tear for the seven-year period
22 No. 10-1194
that Bielskis owned it. The plaintiff in Tweedy had pur-
chased his car as a new automobile just four months
before the brakes failed. Tweedy, 357 N.E.2d at 450. The
plaintiff also traced the history of the brakes, which had
been inspected prior to delivery to the plaintiff, to sup-
port the jury’s conclusion that the brakes were defective
when they left the manufacturer. Id. at 451-52. Bielskis’s
case is much more like the situation in Livingston Service
Co. v. Big Wheels, Inc., 421 N.E.2d 1042 (Ill. App. 1981). The
plaintiff in Livingston sued after his custom fertilizer
spreader vehicle caught fire while he was using it. Id. at
1043. In rejecting the plaintiff’s attempt to rely on Tweedy,
the court in Livingston pointed out that the plaintiff had
owned the spreader for sixteen months and that the
cable that likely caused the fire had been exposed during
that time. Id. at 1044-45. Bielskis’s case is even weaker:
he had owned the scaffold for seven years at the time of
the accident, and has advanced no particular evidence
about its condition when it was received from the manu-
facturer. Thus, Bielskis has not marshaled sufficient
evidence that the mini-scaffold was defective at the
time it left Louisville Ladder’s control. Without evidence
that the mini-scaffold was defective at the outset or that
it was free in the 7-year interim period from any
abnormal use, Bielskis needs more than the failure of
the caster stem to prove his case. Livingston, 421 N.E.2d
at 1045. And with no expert testimony, he lacks evi-
dence to support his product liability allegations of
strict liability and negligence. Summary judgment for
Louisville Ladder was therefore proper.
No. 10-1194 23
III.
For the foregoing reasons, we A FFIRM the judgment of
the district court excluding Bielskis’s expert testimony
and granting summary judgment in favor of the de-
fendant Louisville Ladder.
11-18-11