Mechanical Engineering Expert Witness Barred From Testifying About the Duties Owed by Plumbers and Landlords
Posted on January 8, 2025 by Expert Witness Profiler
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.
Discussion by the Court
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 |
| Order Date: | January 07, 2025 |
