The Subrogation Strategist

In Rich v. Plumbing No. 1:23-cv-00705-SAG, 2025 U.S. Dist. LEXIS 2263, the United States District Court for the District of Maryland considered two motions for summary judgment, each arguing that the court should exclude the testimony of the plaintiff’s expert. Although the court allowed the plaintiff to file a supplemental brief, it ultimately granted the defendants’ motions for summary judgment. Consequently, the court deemed the testimony of the plaintiff’s one and only expert inadmissible.

The plaintiff, Whitney Rich, on behalf of C.W., brought this action after her young infant, C.W., suffered severe burns from a bathtub in their rental property. The plaintiff alleged that the landlord, Marilyn L. Dennison (Landlord), and the plumbing company, Dennison Plumbing & Heating, were liable for C.W.’s injuries because the excessively hot water temperature in the rental property resulted in the burns.

The defendants acknowledged that there were factual disputes relating to the underlying incident, including whether the plaintiff had ever noticed Landlord of the excessively hot water in the rental property. However, the factual issues did not come into play because the defendants’ motions for summary judgment argued that the testimony of the plaintiff’s expert, Jason S. Kiddy, Ph.D. (Dr. Kiddy), should be excluded.

First, the defendants argued that Dr. 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°F. The plaintiff contended that the police report was admissible under the hearsay exception for public records (Rule 803(8)(A)). The court explained that even if this were true, the defendants successfully showed that the circumstances surrounding the police report indicated a lack of trustworthiness. More specifically, the report lacked trustworthiness because it did not provide any information regarding the equipment used, the calibration of the equipment, the methodology used to take the temperature, or the number of samples taken. Further, the subject temperature reading in the police report was conducted nearly 7 months following the incident.

Second, the defendants argued that Dr. Kiddy admitted that he had no evidence of a code violation at the residence and that his testimony regarding purportedly applicable standards was inherently unreliable because the standards he cited to did not apply to whirlpool tubs. Dr. Kiddy opined that the industry has settled on 120°F as the desired hot water temperature since 1993 and that the plumbing codes in effect at such time clearly recognized the hazard of hot water in excess of 120°F. The court disagreed and noted that the code provisions cited by Dr. Kiddy do not support his statements. It was also unknown as to whether such codes were even applicable in Frederick County, Maryland at the time of the rental property’s construction in 1995. Further, the codes cited by Dr. Kiddy were intended for showers, not bathtubs or whirlpool tubs. Although Dr. Kiddy eventually cited codes that included bathtubs and whirlpool tubs, no evidence was presented indicating that such codes imposed a legal duty upon the defendants. The court explained that Dr. Kiddy’s assessments of “what the industry settled on” or “what the plumbing codes recognize[d]” were not tied to any specific scientific method, industry standard, or factual premise.

Third and lastly, the defendants argued that Dr. Kiddy lacked the requisite knowledge, skill, and experience to provide testimony establishing the duties owed by plumbers to tenants at residential premises. The court agreed. Dr. Kiddy may have had the knowledge, skill, and experience to serve as an expert witness in certain areas relating to mechanical engineering, aerospace engineering, and physics, but the same could not be said for residential plumbing and the duties owed by plumbers and landlords that would be relevant in this case. The court noted that Dr. Kiddy had not worked as a plumber, nor had he obtained training as a plumber. Furthermore, the codes and standards he cited in his report did not suggest use of a reliable methodology to reach his conclusions about industry standards. Ultimately, the court found that Dr. Kiddy lacked the credentials for the relevant subject matter and that his opinion testimony did not rest on an adequate foundation.

This case emphasizes the importance of objectivity, the use of a reliable methodology in forming expert opinions and retaining properly qualified experts. As subrogation professionals, we are all aware of the time and energy that goes into handling a claim and building a case. As such, it is critical that we be proactive in reviewing our experts’ credentials and understanding the basis for their opinions. It can be devastating, as well as detrimental to one’s case, to reach the summary judgment stage of litigation only to find out the testimony of your expert - on which your case relies - is inadmissible.