The Court of Appeals for the Seventh Circuit affirmed the decision of the District Court in refusing to allow the naming of another expert witness after the original expert had been disqualified under Daubert. In Bielskis v. Louisville Ladder, Inc. 663 F3rd 887 (7th Cir. 2011). Plaintiff was injured when he fell from an alleged defective mini-scaffold manufactured by the Defendant. The District Court granted the Defendant’s motion to bar the trial testimony of Plaintiff’s expert witness who, among other things, relied upon Google to supply articles supporting his opinion.
After the expert was disqualified, Plaintiff moved for a continuance to obtain another expert. The Plaintiff relied on cases in which the district court by its own action affirmatively caused the need for a continuance. The Court distinguished those cases and said:
“Discovery had been 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’ for a second bite at the expert witness apple. Id. [Smith] 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.’) ” p.897