A Court of Appeals for the Seventh Circuit recently held that in a defective design case the plaintiff’s expert need not test an alternate design. In Baugh v. Cuprum S.A. de C.V.U., ____ F.3d _____ (7th Cir. 2017) 217 WL 1044464, plaintiff claimed that defendant’s ladder collapsed because of a design defect and caused him to fall suffering a traumatic brain injury. The jury found for plaintiff and awarded him $11,000,000.00 damages. Defendant appealed alleging, among other things, that the testimony of plaintiff’s expert was inadequate to prove a design defect because he failed to test an exemplar ladder. The expert had arrived at his opinion on alternate design using “centuries-old mathematics principals. The court held that this was sufficient saying:
“The fact that these calculations were not accompanied with live testing of an exemplar ladder is irrelevant to Rule 702 and Daubert. See Lapsley v. Xtek, Inc., 689 F.3d 802, 815-16 (7th Cir. 2012) (“[P]hysican recreations of Industrial accidents are not always feasible or prudent? A mathematical or computer model is a perfectly acceptable form of test” for a proposed alternative design.); Schmude v. Tricam Indus., 556 F.3d 624, 626 (7th Cir. 2009) (rejecting claim that plaintiff’s expert should have been barred from testifying due to failure to conduct live recreation of accident, and discussing defendant’s dubious re-creation attempt); Cummins v. Lyle Indus., 93 F.3d 362, 369 (7th Cir. 1966) (“We do not mean to suggest?that hands-on testing is an absolute prerequisite to the admission of expert testimony.”).”