Plaintiff Emily LaPrade has paraplegia with limited sensation in her lower body due to a spinal cord injury in 2014. While returning from a camping trip in September 2023, LaPrade rode in the front passenger seat of her family’s 2023 Volkswagen Tiguan. She claimed that she received second-degree burns after she used the vehicle’s seat heater for 20-30 minutes on the highest setting, and one hour on the heater’s middle setting.
In 2024, LaPrade and Jonathan LaPrade (together, “Plaintiffs”) sued Defendant Volkswagen Group of America, Inc. (“Volkswagen” or “Defendant”) arguing that the seat heater in their car was defective.
Defendant filed a Daubert motion to exclude the testimony of Plaintiffs’ expert, Roger Smedsrud.
Accident Reconstruction Expert Witness
Roger W. Smedsrud is a forensic mechanic specializing in accident reconstruction. With 32 years of experience as a mechanic and over 3,000 mechanical inspections of vehicles involved in traffic collisions, equipment accidents, or fraud, he has significant formal training on a variety of vehicles.
1. The Court will permit testimony regarding Smedsrud’s test results
Smedsrud is qualified to testify about the seat heater temperatures he observed via infrared thermometer and diagnostic data from Plaintiffs’ Tiguan. Smedsrud’s significant experience in vehicle repairs, diagnostic systems, and accident reconstruction qualifies him to testify about the tools he used, tests he performed, and data he collected during his examination of Plaintiffs’ vehicle.
Defendant contended that Smedsrud’s testimony in this area is unreliable or irrelevant because “he did not design or conduct his testing in accordance with any Society of Automotive Engineers (SAE) or International Organization for Standardization (ISO) guidelines.”
The Court concluded that Smedsrud’s background and experience are sufficient for him to testify about the data he gathered. That he did not refer to a specific standard does not necessarily invalidate the temperature readouts themselves.
2. The Court will exclude testimony regarding the design or safety of the seat heater
Defendant asked the Court to exclude Smedsrud’s testimony about the design of the Tiguan’s seat heater—namely, his conclusion “that the temperatures set in this vehicle heated seat system are set too high from the factory.”
Smedsrud is not qualified to offer opinions about the design or safety of the Tiguan’s seat heater. Smedsrud’s opinion did not discuss any standard by which he judged the temperature of the seat heater to be “too high.” He testified that he did not rely upon SAE or ISO standards, and that that he was unaware of “any publication that sets the maximum reasonable temperature for a seat heater.” Instead, he formed his conclusion upon the fact that he had “never seen one this high before.” But as Defendant noted, Smedsrud has never investigated an incident where someone was injured from a seat heater. He has only ever repaired a seat heater once—in his own Toyota, after the seat heater stopped working entirely.
Plaintiffs argued that, even if Smedsrud did not rely on any standard, the SAE and ISO standards supported his conclusion that the temperatures of the seat heater were indeed “too high.” But this is irrelevant to the Rule 702 inquiry, which focuses “solely on principles and methodology, not on the conclusions that they generate.”
Held
The Court granted in part and denied in part Defendant’s Daubert motion to exclude the testimony of Roger Smedsrud.
Key Takeaway
The dispositive question is “whether an expert’s methodology can be ‘challenged in some objective sense, or whether it is instead simply a subjective, conclusory approach that cannot reasonably be assessed for reliability.’” Smedsrud’s methodology is the latter.
Plaintiff Sheheryar Ahmad sued Defendant Spinnaker Insurance Co., his insurer, for breach of contract based on Defendant’s refusal to cover damages caused by frozen and burst pipes in Ahmad’s home.
The Plaintiff argued that although the insurance policy excluded coverage for damage caused by frozen pipes, his claim qualified for an exception to that exclusion because he had taken “reasonable care to maintain heat” as required by the policy.
Plaintiff’s home consumed seven thermal units of natural gas between December 14, 2022 and January 14, 2023, the period during which the pipes froze and burst. To establish that seven therms sufficed to maintain reasonable heat, Plaintiff relied on the expert testimony of Dr. Brian K. Bramel.
The Defendant, however, filed a request to exclude Bramel’s testimony regarding the home’s internal temperature at the time of the frozen pipes.
Engineering Expert Witness
Dr. Brian K. Bramel is a principal at his own engineering firm and holds undergraduate and graduate degrees in Mechanical and Civil Engineering.
He also serves as an adjunct professor in the Department of Architecture at the University of the District of Columbia.
Bramel’s report applied the Manual J calculation, a standard thermodynamics methodology generally used to size heating equipment and developed by the Air Conditioning Contractors of America (ACCA) and the American Society of Heating, Refrigerating and Air-Conditioning Engineers (ASHRAE).
In its ordinary function for equipment sizing, Manual J is used to “determine the therms necessary in order to reach a chosen temperature inside a structure.”
However, per Bramel, the methodology can be used “in reverse,” using basic algebra, to determine the interior temperature based on measurements of the “features of the subject premises” and total energy used in this context.
Bramel’s Application of the Manual J Calculation
The Manual J calculation determines “the energy required for a house based on the interior and exterior temperature differences.” A key element of the calculation is the “resistance factor” of the structural elements in Plaintiff’s home, which refers to the energy lost through the walls, floor, roof, and windows.
Under the equation, the total “energy input to the building from the gas and electric” is equal to the “thermal resistance of the assembly” multiplied by the “area” of the resistance and the difference between the outdoor and indoor temperatures.
Bramel summarized the equation as follows: Qin = U A (tinside – toutside), where Qin refers to the “energy input to the building from the gas and electric,” U refers to “thermal resistance of the [structural] assembly,” A refers to “area” of the resistance, and (tinside – toutside) refers to the temperatures inside and outside, respectively.
Reliability of Bramel’s Methodology
The Defendant contended that Bramel’s testimony should be excluded because he had inappropriately repurposed a well-established methodology—typically used for sizing heating equipment—and applied it to a completely different context. While there was no dispute that Manual J is a reliable method for determining appropriate equipment size, the Court found that the Plaintiff failed to show it was suitable for use outside of that context, particularly for calculating internal temperatures in reverse.
Bramel himself acknowledged during both his deposition and live testimony that he was unaware of any scientific or engineering publications endorsing this reverse application of the method. He claimed the approach remained reliable because it involved basic algebra applied to standard thermodynamic principles. However, the Court concluded that Bramel’s modification of the Manual J methodology significantly weakened his argument, as altering a known calculation for a novel use called into question its scientific reliability.
Bramel’s hypothesis was not only untested but, by his own admission, untestable. The Plaintiff failed to present any evidence showing that Bramel’s method had ever undergone testing. During the evidentiary hearing, when questioned about whether his methodology had been tested, Bramel merely asserted that it was valid—offering no data or studies to support that claim. Furthermore, he acknowledged that a key component of his analysis—the calculation of total “internal gains”—could not be tested, as it was based on what he described as “a reasonable guess” grounded in an “engineering assumption.”
Application of Methodology to the Facts
The Court found that Bramel’s use of the Manual J methodology failed to meet the reliability standards required under Daubert and Rule 702. It pointed to multiple instances where Bramel relied on inconsistent and unsupported assumptions, all of which significantly weakened the credibility of his testimony.
First, Bramel did not provide a clear or consistent justification for overriding Manual J’s default outdoor temperature value of 14 degrees Fahrenheit. From the beginning, he struggled to explain the meaning of the “outdoor 99% db” variable used in Manual J. During his deposition, he spent more than ten transcript pages attempting to respond to defense counsel’s questions on the topic but failed to articulate a coherent understanding. Despite this, Bramel replaced the preset value with his own figure of 33 degrees Fahrenheit, yet he was unable to offer a satisfactory explanation for making that manual override.
Second, Bramel’s report offered neither a rationale for considering the additional variable of “internal gains” in his calculation nor an explanation of how he reached his ultimate assumed value.
Third, Bramel’s assumptions about the structure of the Plaintiff’s home conflicted with the actual facts. He classified the home as “tight,” a designation in Manual J reserved for structures that are “sealed by meticulous workmanship” and exhibit the “lowest level of air leakage.” However, Bramel admitted during both his deposition and the hearing that industry standards require the use of “blower door tests” to assess a home’s tightness. He conducted no such test in this case, undermining the credibility of his classification.
Furthermore, Bramel’s analysis assumes Plaintiffs home comprises one window, despite both photographs and inspections “revealing the house had 10 times that many windows.”
Held
The Court granted Defendant’s request to exclude the testimony of Dr. Brian K. Bramel.
Key Takeaways:
If the Court, or any other experts, cannot test a critical assumption in Bramel’s methodology, then there is no “objective basis” to test the reliability of the methodology overall.
The cumulation of errors, inconsistencies, and absence of support render Bramel’s analysis entirely unreliable under Rule 702.
On August 23, 2021, Plaintiff Virginia Huss used a Ninja BL660 blender, designed and manufactured by Defendant SharkNinja Operating LLC, to blend a mixture of chocolate chips that she had microwaved for 60 to 90 seconds. After blending, Huss attempted to twist open the blender lid and the lid shot off the blender cup, causing scalding hot fudge to explode and burn her face, chest, arms, and hands. As a result, Huss initiated this product liability against SharkNinja.
In her amended complaint, Huss focused on the ‘cool to explosively hot’ theory, which posits that the blender’s fast-moving blade heats cool or room temperature food which creates friction and, ultimately, causes the blender contents to explode when the user opens the blender cup.
Huss Filed the Following Allegationsin Support of her Cool to Explosively Hot Theory:
a. The blender is defectively designed because “the extremely fast-moving blade of the blenders heat the contents of the sealed bullet-shaped canister, which can (and does) unexpectedly explode when being used in its normal and intended manner by consumers. In a matter of a short amount of time, the fast-spinning blades can unexpectedly heat up its contents, such that if the blender explodes, the user is at risk of severe burns or lacerations and injuries requiring medication attention.”
b. “During the normal, as-directed use of the blender, a consumer puts cool or room temperature food into the plastic ‘bullet’ cup. Once the cup is secured to the blade assembly and placed onto the unit’s base, the user is able to run the blender by pressing down on the cup. The blades then rotate, creating friction as they cut and chop the cup’s contents, which in turn causes the contents to heat up.”
c. “As the temperature rises inside the cup, the pressure from the frictional energy also rises. The temperature can get so hot that the pressure inside the cup forces the cup to separate from the blade while the blender is still running. This can cause the hot contents of the cup to explosively project outward without warning, landing on anyone and anything nearby.”
d. “Even if the cup does not separate from the blender while in use, the user is still at risk. If the contents of the cup are hot and under pressure when the cup is opened, the hot contents can again be explosively ejected onto the user, causing se[ve]re lacerations from a detached blade.”
Derek King
King set forth three other design defect theories in his expert report:
(i) that the threaded connection between the blender cup and the blade assembly is “susceptible to slippage and so it may separate…before venting can occur” (the “Thread Slippage Theory”)
(ii) that “the threaded connection was under load (from internal pressure) and also at an elevated temperature” and “it is likely that one or both materials experienced some softening due to temperature which contributed to the threads failing to keep the blade assembly fastened to the cup long enough for the pressure to vent” (the “Softening Materials Theory”)
(iii) that Huss had observed that the blade assembly “kind of untwists itself the rest of the way,” which King found was “consistent with the force from internal pressure being transferred into a rotational motion due to the slope of the threaded connection between the cup and blade assembly” (the “Spontaneous Untwisting Theory”)
In response, SharkNinja filed a motion to exclude the expert testimony of Derek King.
Mechanical Engineering Expert Witness
Derek A. King has a Bachelor of Science degree in Mechanical Engineering from the University of California, Berkeley and a Master of Science in Electrical Engineering from Ohio University. He has worked as an engineer for Berkely Engineering and Research since 2009 “in the areas of failure analysis, design, and risk assessment of consumer and industrial equipment, including industrial pressure vessels and consumer propane tanks, pressure cookers and blenders.”
King was tasked with providing his opinions regarding the following topics:
(1) “Whether or not the blender would enable and allow the incident to occur”; and
(2) “What design aspects of the subject blender enable and/or fail to mitigate the risks of pressurization and burn injury.”
By “applying well-established engineering principles” and performing “exemplar testing,” King concluded that “a sealed blender cup will heat and pressurize due to the blending process, thus establishing the possibility that the subject blender could create the hazard and risk consistent with Huss’ description.”
As to his “exemplar testing,” King provided a spreadsheet which reflected the following headings: (1) T(s); (2) External °F; (3) Internal °F; (4) Pressure PSI; (5) Note; (6) T-start; and (7) Recipe. Oddly, the Court noted that King provided no explanation whatsoever in his Report regarding the meaning of the headings, exactly what the variables of his tests were, and what the outcomes of his tests were. SharkNinja described King’s test results as follows:
• “The only testing of the incident recipe that King conducted involved blending a chocolate-chip mixture heated to 121°F. But this testing did not result in any pressurized ejection of hot content.”
• “King blended incident recipe ingredients that were preheated to 121°F for one minute and 49 seconds in a BL660 single-serve cup, and this testing did not demonstrate any explosive projection of the cup’s contents.”
It should be noted that Huss did not dispute SharkNinja’s characterizations of King’s testing and did not otherwise discuss the testing other than to assert that King considered Huss’ testimony that the chocolate chips were “lukewarm” temperature and “applied it to his analysis.”
Analysis
Absent an explanation from King or Huss — or disagreement regarding SharkNinja’s characterization — of the meaning of the data contained on King’s testing spreadsheet or how the testing was carried out in general and what results it yielded, the Court proceeded to analyze King’s opinion with the following premise in mind: King’s testing involved blending ingredients that had previously been heated to 121°F for one minute and 49 seconds, and that testing did not result in an explosive projection of the blender’s contents.
1. Whether King Is Qualified
SharkNinja did not challenge King’s qualifications as to his design defect opinions. However, the Court found, in accordance with its gate-keeping obligation and the standard set forth in Rule 702, that King’s undergraduate and graduate degrees in mechanical and electrical engineering along with his work experience since 2009 “in the areas of failure analysis, design, and risk assessment of consumer and industrial equipment, including blenders” is sufficient to qualify him to testify regarding design defects in blenders.
2. Whether King’s Methodology Is Scientifically Reliable
The Court also considered whether Huss had sustained her burden of showing that that it is more likely than not that King’s methodology is scientifically reliable and that his testimony will aid the trier of fact.
a. Cool to Explosively Hot Theory
SharkNinja argued that King did not have a reliable foundation to provide expert testimony regarding the cool to explosively hot theory because he did not conduct any testing with cool or room temperature ingredients. It asserted that King’s test involved blending a mixture of chocolate chips, sweetened condensed milk, and vanilla extract preheated to 121°F for one minute and 49 seconds in a BL660 single-serve cup blender and that even though he started with preheated ingredients (versus cool or room temperate ingredients) and blended the ingredients longer than Huss did (one minute and 49 seconds versus “probably less than a minute”), “his testing did not demonstrate any explosive projection of the cup’s contents.”
Accordingly, it argued, King “should be precluded from opining that blending cool or room temperature ingredients for any length of time can result in ‘contents being forcefully expelled from the blending cup under pressure and at high temperature.’”
SharkNinja’s main critique of King’s methodology for his opinions regarding the cool to explosively hot theory was that King was not able to re-produce an explosive projection when he blended chocolate chips, sweetened condensed milk, and vanilla extract for a longer period of time than Huss, and that the ingredients he blended were preheated to 121°F rather than being cool or at room temperature as necessary to test the cool to explosively hot theory.
Court’s Decision
The Court acknowledged that “an expert need not wear a lab coat nor cite peer-reviewed studies to reliably lend his expertise to the trier of fact—experience is an equally valuable teacher.”
But, at bottom, King still had to explain the methodology that he used and how his experience led him to his conclusions. He did not do so and, moreover, the testing he did perform used different conditions than the cool to explosively hot theory, making his methodology regarding his opinion that the blender had a design defect based on that theory unreliable.
b. Thread Slippage Theory
While SharkNinja agreed with King’s premise that ‘blending creates friction, friction causes heat, and, given enough time, a marathon blending session can eventually generate sufficient heat and pressure within a sealed cup to cause the blended contents to eject out energetically when the cup is opened,’ it argued, however, that King’s opinions that this can take place after one minute of blending is not supported by testimony or “any other reliable foundation.”
Specifically, SharkNinja noted that King blended preheated ingredients for one minute and 49 seconds and “did not identify any thread slippage or pressurized ejection of contents” from the blender cup, and that the thread slippage theory is speculation and unreliable.
SharkNinja asserted that there is an “analytical gap” in King’s analysis because “whether the blade assembly can ‘shift’ does not address whether the threads between the blade assembly and the BL660 cup can, in fact, ‘slip.’” It noted that King did not identify any testing to support his finding and that Huss does not argue that this theory has been subjected to peer review or publication, is generally accepted in the engineering community, or has a known or potential error rate.
Court’s Decision
The Court rejected Huss’ argument that SharkNinja can simply cross-examine King to address any shortcomings in his methodology. This notion is contrary to the 2023 amendment to Rule 702, which requires the Court to determine whether an expert’s methodology is reliable rather than leaving that determination to the jury.
As to SharkNinja’s issues with King’s methodology, King opined that “a potential opportunity for venting before sudden separation is present in the intermittent thread design, however, geometric analysis shows that the threaded connection is susceptible to slippage and so it may separate…before venting can occur.” He described the blender’s threading in detail, but did not set forth any methodology for how he reached his conclusion that thread slippage could have occurred after less than one minute of blending and caused the contents of Huss’ blender to explode. The Court held that King’s methodology regarding his opinion on the thread slippage theory is non-existent and, therefore, unreliable.
c. Softening Materials Theory
SharkNinja argued that King “did not attempt to substantiate his softening materials theory with any testing or other reliable foundation,” instead simply noting the deflection temperature of the materials that make up the blender’s construction and stating that it is likely those materials softened during use.
SharkNinja noted that King examined the blender but “did not state that he observed any evidence of softening in either the blade assembly or the single-serve cup,” that his testing “did not demonstrate any evidence of either component softening,” and that he did not cite any support for his theory in scientific literature or otherwise.
Court’s Decision
The Court rejected Huss’ contention that SharkNinja can simply address shortcomings in King’s methodology through cross-examination and proceeded to consider the issues that SharkNinja raised.
While King stated in his report that “An overview of the material properties indicates that cup material has a deflection temperature of approximately 200 °F, while the blade assembly deflection temperature is approximately 100 to 300 °F. Huss’ description of a pressurized release and sustaining burn injuries indicates that the threaded connection was under load (from internal pressure) and also at an elevated temperature. It is likely that one or both materials experienced some softening due to temperature which contributed to the threads failing to keep the blade assembly fastened to the cup long enough for the pressure to vent,” he did not indicate that he tested the blender, observed softening of the components’ materials, or employed any other methodology to reach his conclusion.
He merely stated that ‘it is likely’ the materials ‘experienced some softening’ based on their deflection temperatures, which ‘contributed to the threads failing to keep the blade assembly fastened.’ The Court held that his speculative conclusion is not supported by any methodology. In other words, King’s methodology relating to the softening materials theory is not reliable.
d. Spontaneous Untwisting Theory
SharkNinja argued that King simply states that Huss’ observation that the blade assembly untwists itself is consistent with the use of the blender, but “offers no reliable foundation for this opinion,” “does not attempt to substantiate his opinion by citing to any scientific literature (or anything at all other than Plaintiff’s deposition testimony),” and “did not disclose any evidence of the BL660 blade assembly untwisting itself based on the slope of the threaded connection during his own testing of the incident recipe.”
Basically, SharkNinja contended that King “does not identify any testing that would support his spontaneous untwisting theory,” and noted that his testing with preheated ingredients did not result in the blender cup spontaneously untwisting from the blade assembly.
King opined that ‘Huss’ observation that the blade assembly “kind of untwists itself the rest of the way” is consistent with the force from internal pressure being transferred into rotational motion due to the slope of the threaded connection between the cup and blade assembly.’
He did not state that he tested this theory and observed spontaneous untwisting or set forth any other methodology that he used in reaching this conclusion. He simply baldly stated that Huss’ observation is consistent with the use of the blender and the slope of the threaded connection. The Court held that King’s methodology regarding the spontaneous untwisting theory is speculative and not reliable.
The Court found that Huss has not sustained her burden of showing by a preponderance of the evidence that King’s methodology as it relates to the cool to explosively hot theory, the thread slippage theory, the softening materials theory, or the spontaneous untwisting theory is reliable.
3.Whether King’s Testimony Would Aid the Trier of Fact
SharkNinja argued that King’s opinions would not aid the trier of fact because they were speculative in nature and not based on a reliable methodology.
The Court held that King’s opinions are not grounded in a reliable methodology — they are not based on any physical testing and King does not set forth any other methodology to explain how he reached his conclusions. The speculative nature of his opinions relating to all four design defect theories will not aid the trier of fact. The Court found that Huss has not shown that it is more likely than not that King’s testimony will aid the trier of fact.
In sum, Huss has not sustained her burden of showing by a preponderance of the evidence that King’s methodology is reliable and that his opinions would aid the trier of fact.
Held
The Court granted the Defendant’s motion to exclude the testimony of Plaintiff’s expert Derek King.
Key Takeaway:
Despite King’s qualifications in mechanical and electrical engineering and his experience in failure analysis and design, the Court held that he failed to demonstrate a scientific basis for his conclusions regarding the alleged design defects of the Ninja BL660 blender. His testing did not replicate the conditions claimed by the Plaintiff, and he did not substantiate his theories—such as the cool to explosively hot theory, thread slippage theory, softening materials theory, and spontaneous untwisting theory—with physical testing, mathematical models, or citations to scientific literature. The Court determined that King’s unsupported conclusions would not aid the jury in evaluating the alleged design defects, rendering his testimony inadmissible.
Case Details:
Case Caption:
Virginia Iris Huss vs. Sharkninja Operating LLC
Docket Number:
1:23cv1435
Court:
United States District Court for the Southern District of Indiana, Indianapolis Division
In March of 2008, serious burn injuries were sustained by a very young infant in a whirlpool bathtub in a rental property in Frederick, Maryland. One of the infant’s young siblings (who were ages 4 and 2 at the time) turned on the hot water in the tub while her mother briefly exited the room. The water caused the infant to suffer second- and third-degree burns and require extensive medical care, continuing to the present day.
Dr. Jason S. Kiddy is the only expert witness the Plaintiff has designated. Defendants raised certain issues with respect to Kiddy’s testimony.
Kiddy’s Testimony
The industry has settled on 120°F as the desired hot water temperature since at least 1993, 15 years prior to [C.W.’s] incident.
Although an ASSE 1016 compliant valve, which is required on all shower installations, would have been adequate and would have protected [C.W.] from her burns, it was not specifically required by the governing codes.
Based on the overall configuration of the subject plumbing system, specifically that the mixing of the hot and cold water occurs within the sidewall of the bathtub, a TAFR valve installed on the hot water supply prior to the bathtub would have been the most practical approach to limiting the bathtub temperature.
The plumbing codes in effect at the time of the original construction in 1995 clearly recognize the hazard of hot water temperatures in excess of 120°F.
The plumbing codes in effect at the time of the accident and all subsequent codes require water temperature limiting devices with a maximum allowable water temperature of 120°F for bathtubs without showers and whirlpool tubs.
The Defendants should have recognized the hazard created by the uncontrolled hot water temperature leading to the subject bathtub.
If no other means exist to provide scald protection, lowering the temperature of the hot water is an option, especially in the short term while other codecompliant measures are put in place. However, the water heater temperature control should never be considered as a permanent solution.
If the water temperature was controlled and limited to 120°F, [Plaintiff] would have had approximately eight minutes to discover that the water had been turned on and to prevent [C.W.’s] injuries.
Mechanical Engineering Expert Witness
Jason Kiddy earned degrees in physics, mechanical engineering, and aerospace engineering. He has worked in engineering since 1996, holds several patents, and belongs to professional associations including the American Society of Mechanical Engineers, the National Association of Fire Investigators, and the National Fire Protection Association.
According to Kiddy, the Defendants had the capability and know-how to install a temperature limiting valve to bring the bathtub up to plumbing code and to provide a safe environment for their tenants. Despite having the knowledge and skills to remedy the hazard, the Defendants chose not to do so thereby ultimately resulting in [C.W.’s] injuries. This failure constitutes a breach of the standard of care in which the Defendants owed [Plaintiff] and her children.
First, Defendants contended that Kiddy improperly relied on the unreliable water temperature reading from the police report to support his opinion that the water temperature at the time of the incident exceeded 120 degrees. Second, Defendants contended that Kiddy admitted that he has no evidence of a code violation at the residence, and that his testimony regarding purportedly applicable “standards” is inherently unreliable because the standards he cites do not apply to whirlpool tubs. Third, Defendants contended that Kiddy lacked the requisite knowledge, skill, and experience to provide testimony establishing the duties owed by plumbers to tenants at residential premises.
Analysis
Plaintiff contended that the police report is admissible but even if that is the case, the Court found that the report provides no information about the equipment used, the calibration of the equipment, the methodology used to take the temperature (including where the sample was taken or the length of time the water ran before measuring), or the number of samples taken. Also, the temperature reading was taken almost seven months after the incident, following a period of time in which the gas at the property had been turned off.
The Court agreed that Kiddy’s opinions regarding applicable codes and standards are not methodologically sound. His statements are not supported by the code provisions he cites. The BOCA provisions he cites refer to showers, not bathtubs or whirlpool tubs.
The Court held that Kiddy’s assessments about what the industry “settled on” or what the plumbing codes “recognized” are not tied to any scientific method, industry standard, or factual premise.
Finally, Kiddy’s CV reflects that he has the knowledge, skill, and experience to serve as an expert witness in certain areas relating to mechanical engineering, aerospace engineering, and physics. However, the Court takes note of the fact that he lacks specific knowledge, skill, experience, training, or education in residential plumbing and the duties owed by plumbers and landlords that would be relevant in this case. Moreover, the “codes and standards” he cites in his report do not suggest use of a reliable methodology to reach his conclusions about industry standards.
Held
The Court granted the Defendants’ motion to exclude the opinions of Plaintiff’s expert Jason Kiddy.
Key Takeaway:
While expert witnesses are allowed to rely on hearsay evidence under Rule 703, the evidence must be of a type that would be reasonably relied upon by experts in the field. The temperature reading here would not meet that requirement, for all the reasons described above. It is simply too farfetched to believe that a temperature reading taken seven months after the incident using unknown methodology and instrumentation represents an accurate assessment of the water temperature in the whirlpool tub back in March, 2008. The Court held that any portion of Kiddy’s testimony relying on that inadmissible temperature reading is itself inadmissible.
Case Details:
Case Caption:
Rich V. Dennison Plumbing & Heating Et Al
Docket Number:
1:23cv705
Court:
United States District Court for the District of Maryland
