Virginia Lawyers Weekly

A civil engineer/engineering professor falls short of the Daubert standard in his tests on the “Little Giant” ladder, and an Alexandria U.S. District Court excludes plaintiff’s expert evidence and grants summary judgment to defendant manufacturer.

The pro se plaintiff was severely injured when he stepped off a roof onto the ladder and fell. He alleges that “the liability and negligence” of defendant Wing Enterprises, “by building this ladder with a non secure joint and without using proper feet on said ladder is the sole reason for this unfortunate fall.” Plaintiff hired Paul L. Charles as an expert witness to provide an opinion about the design of the “Little Giant” ladder. Charles, who has worked as a professional engineer and a civil engineering professor at Texas Tech University, performed physical tests on the ladder that involved measuring the displacement at the middle joint of the ladder and the deflection at the end. Charles used the values obtained from this analysis, combined with theoretical scientific principles and specific industry standards, to reach the conclusion that the ladder was negligently designed.

At a Daubert hearing, Charles testified for plaintiff and Thomas Bayer testified for defendant. Bayer, who possesses over 25 years of experience in the ladder industry and has served as a product engineer for the largest ladder manufacturer in the U.S., testified that the amount of deflection permitted by the design of the Little Giant ladder was not unreasonably dangerous and was within normal tolerance.

In sum, Charles attempted to use OSHA and building code regulations to establish a standard of care in the ladder industry, and then show through physical tests that the Little Giant Ladder fell below that standard. However, the industry provisions Charles relied on do not contain enough specificity to set a practical and reliable standard of care. Charles’ standards stand for nothing more than the proposition that deflection in a ladder cannot be so great that it causes the feet to slip and the ladder to fall. To be adequate, Charles’ standards must at least attempt to assign a numerical value on how much deflection is too much, or include industry accepted deflection ranges. A trier of fact attempting to apply Charles’ general standard of care is left to engage in significant speculation.

Because Charles’ proposed standard of care and physical ladder tests are rooted in substantial speculation, as opposed to a scientific or technical knowledge, his testimony cannot be characterized as reliable beyond a preponderance of the evidence.

Therefore, the court shall exclude Charles’ testimony in its entirety.

Because plaintiff’s expert testimony has been excluded, he has virtually no evidence to prove the essential elements of his case. However, he would not be able to survive summary judgment even if the expert testimony was admissible.

Even if his expert’s testimony is admissible, plaintiff has presented no evidence that could lead a reasonable juror to conclude that the Little Giant ladder’s design fell below the industry-promulgated ANSI standards, or any other relevant standards for that matter. His expert report fails to even mention the ANSI standards. Charles did, in his ladder analysis, compare the Little Giant ladder to a non-hinged, straight extension ladder. However, this comparison alone cannot be used to establish the standard of care. Plaintiff also has failed to offer any material evidence regarding reasonable expectations of consumers or industry custom.

Plaintiff cannot meet the “unreasonably dangerous” element of his negligent design claim, even if the expert testimony is admissible.

Finally, plaintiff cannot meet the causation element of his negligent design claim.

Defendant’s motion to exclude expert evidence, and motion for summary judgment, are granted.

Holmes v. Wing Enterprises Inc. (O’Grady, J.) No. 1:08cv822, June 23, 2009; USDC at Alexandria, Va. VLW 009-3-352, 17 pp.

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