Ensley v. Costco Stretches Bounds of Biomechanical Testimony
This case arises out of a woman falling from a broken stepladder. The question that arose was whether the woman’s fall or break in the stepladder came first, leading to the other (another version of the chicken and the egg). Notably, Plaintiff herself did not know which came first, the break or the fall.
The Plaintiff’s expert witness was a biomechanic injury expert by the name of Wilson Hayes, a biomechanical engineer with a background in mechanical engineering. Rather than performing actual tests on the mechanical structure of the ladder, he simply tested potential scenarios and came to the conclusion that only one scenario was possible -- that the ladder rung broke, and caused Plaintiff to tumble. He explained that he had tested four different scenarios, and found only one plausible scenario, stating that the ladder was defective by way of construction. He also noted that a hole appeared to have been drilled poorly, which could lead to cracking. However, it does not appear he presented any evidence that it actually did so.
This highlights an important issue in expert witness testimony, especially in the area of accident reconstruction. In this case, Plaintiff presented the testimony of a biomechanical engineer. Though an expert in biomechanics, Hayes was also qualified as a mechanical engineer to present and rebut the theories of Defendant's mechanical engineer. However, Defendants appeared to have no expert of their own to rebut Hayes' speculative testimony about how the accident had occurred. Given that Plaintiff herself could not recall how the accident occurred, the ability to cross-examine Hayes on his use of speculation and to present an effective rebuttal was lost.
Additionally, the Court seems to create a sort of burden shifting in this matter, allowing the expert to testify that, although the ladders tested by Tricam did great in test result, that this did not demonstrate that Easley's stepladder was free from construction defects. In essence, shifting the presumption that a defect existed due to the fall, and making it Defendant's burden to prove their was no defect. Rather, this should have been Plaintiff's burden -- usually shown through a metallurgist -- to show that a defect existed and how the defect led to the fall.
Litigation is not just the work that happens in the courtroom. In fact, increasingly it is the work that occurs leading up to the courtroom that wins the day. This includes making sure you have the right experts for the case, which should have included a mechanical engineer, a biomechanical engineer, and a metallurgist, in order to properly rebut Plaintiff's claim. At Issaquah Law Group, we are skilled in witness selection and preparation, whether the case is a slip and fall or a massive fire loss. If you require assistance with your claim, please contact our Issaquah attorneys.