Following an initial mistrial, door and window company Milgard Manufacturing Inc. filed a memorandum of points and authorities with the court recently in support of a motion for judgment. In a legal battle dating back to 2016, San Diego-based builder Brock Mathis filed suit against the company for what his attorneys allege are injuries resulting from issues of product defects. Judge Roger T. Benitez, of Superior Court of California, County of San Diego, declared a mistrial April 2, 2019, when an initial seven-day hearing ended in a hung jury.

After a failed attempt at installing one of the company’s window products, Mathis and his wife, Michelle Mathis, filed suit, attempting to recover what they allege are damages from related injuries. Mathis claims that the company’s window frame bent, flexed, buckled and/or bowed, such that it fell into the window opening, eventually becoming stuck. The incident, he claims, knocked installers from supportive scaffolding.

In support of their allegations, the plaintiffs drew upon the testimony of Dr. David Rondinone, a mechanical engineer with an undergraduate degree in engineering physics and graduate degrees in mechanical engineering—qualifications that, in its memorandum of points, Milgard’s representation suggests do not qualify him to render an expert opinion over alleged product defects.

“While experienced in mechanical engineering, Dr. Rondinone has no experience or expertise in the design, manufacture, or installation of windows, or with regard to industry standards concerning warnings or installation instructions for windows,” the defense alleges. For those, and other reasons, “Plaintiffs failed to present evidence at trial upon which a reasonable jury could find in their favor on any of their claims,” Milgard’s representation declares. Rondinone’s testimony, they claim, was based solely on the argument of the product’s structural flexibility, which the plaintiff’s representation suggests was “excessive”—an opinion that Milgard’s attorneys claim wasn’t based in any scientific analysis or fact. When asked for the basis of his opinion that the window unit was excessively flexible, “… shockingly, the sole basis he cited was that someone, likely plaintiffs’ counsel, told him that,” the memo alleges.

On those alleged grounds, Milgard’s attorneys are suggesting that Rondinone’s testimony, “is not an expert opinion at all. It is not based upon any, testing, calculations, observations, or even the account of any witness …,” further suggesting that the plaintiffs also failed to present competent evidence of causation between the alleged defect and the accident.

“Dr. Rondinone based his entire theory of causation on a factual scenario that appears to exist only in his imagination,” the defense’s attorneys allege in the memo.

In an official court request, the company is proposing a judgment as a matter of law in a hearing May 6.