This case arises from the injuries sustained by Plaintiff, Jessica Loseke, and her husband while they were shopping at Menards in Omaha, Nebraska. They were loading a “refurbished cart” with bags of water softener when the cart broke and injured Loseke’s knee.
Loseke filed a motion in limine to preclude the testimony of Defendant’s expert witness, Alex J. Balian, from being admitted at trial. Defendant, Menard, Inc., a Wisconsin Corporation (“Menards”), filed a motion in limine to exclude the testimony of Plaintiff’s expert William N. Nelson, BSME, MS, MBA, and any other evidence of and/or reference to Nelson’s opinions.
Retail Store Expert Witness
Alex J. Balian has been in the retail industry as an owner, operator, and consultant for more than 65 years.
He has testified as a safety and operations expert in all areas of retail
store operations and public facilities involving supermarkets, commercial buildings, restaurants, warehouse facilities, home improvement stores and specialty stores for more than thirty years.
He has qualified as a retail safety expert and given expert testimony in state and federal courts in matters pertaining to retail operations throughout the United States.
Human Factors Expert Witness
William N. Nelson has over 20 years of experience in the application of Biomechanics, Ergonomics, Human Factors and Product Development. His consulting experience is very broad: from industrial to sports; from federal government to private enterprise; from medical institutions to aerospace.
Nelson’s past work has involved customized training for injury prevention; ergonomic job analysis resulting in a rotation schedule which utilized biomechanical, physiological and skill level data; human factors analysis of Cumulative Trauma Disorder in production processes; development of workstation set up and design.
Discussion by the Court
Opinions of Alex Balian
Plaintiff argued that Balian’s proffered testimony is not reliable. Plaintiff stated that “Balian’s opinions are primarily based on his personal experience in the retail industry, rather than on any scientific or technical methodology. His report lacks any empirical data or testing to support his conclusions regarding the safety of Menards’ shopping cart inspection procedures.”
Opinions of William Nelson
Defendant argued that “Nelson’s opinions are unreliable. He believed that Menards should have some sort of “preventative maintenance” program, and that Menards should hire employees who are trained in welding to inspect carts. These opinions are not based on any retail-industry specific standards but rather drawn based on his own belief.”
Analysis
The Court has carefully reviewed the argument of the parties as well as the briefs, the evidence presented, and in particular, the opinions of both Nelson and Balian.
Nelson is an engineer who has a working knowledge of welding requirements, and Nelson applied engineering principles from his educational background, studies, and work experience. With regard to Balian, the Court likewise found his testimony relevant and of assistance to the trier of fact in this case. Balian has served as a consultant for retail store operations, where he has advised, trained, and executed policies and procedures in supermarkets and other public facilities.
Held
- The Court denied Plaintiff’s motion in limine to preclude the testimony of Alex Balian.
- The Court denied Defendant’s motion in limine to exclude the testimony of William Nelson.
Key Takeaway:
Both experts appeared to have the educational knowledge, training and experience to testify in this case. Their testimony appeared to be such as would assist the trier of fact without invading the province of the jury.
Case Details:
| Case Caption: | Loseke V. Menard, Inc. |
| Docket Number: | 8:23cv537 |
| Court Name: | United States District Court, Nebraska |
| Order Date: | November 19, 2025 |
