The Subrogation Strategist

In Kenney v. Watts Regulator Co, No. 20-2995, 2021 U.S. Dist. LEXIS 4539 (E.D. Pa. Jan. 11, 2021), the United States District Court for the Eastern District of Pennsylvania considered whether to exclude the plaintiff’s liability expert’s testimony regarding the sufficiency of the defendant’s product maintenance instructions. The plaintiff offered the testimony in support of his failure-to-warn product defect claim. The District Court excluded the testimony because the facts of the case did not support the plaintiff’s failure-to-warn claim, which rendered the testimony irrelevant. This case establishes that expert testimony can be excluded if there is an improper fit between the testimony and the underlying claim.

In Kenney, plaintiff Thomas Kenney, and his wife (collectively, the Kenneys) owned a home that was originally built in 2002. Unbeknownst to the Kenneys, the plumbing in their home included a 2002 Watts pressure regulating valve (Watts valve) in the basement to regulate the water pressure flowing into the home. The Watts maintenance instructions required annual inspections of all water system safety and control valves. However, because no one living in the home knew that the Watts valve existed, they never read the Watts maintenance instructions.

In September 2018, the Kenneys left for a day to visit their daughter at college. When they returned, they noticed water coming from the garage ceiling. Mr. Kenney discovered that the pipe feeding the toilet in the second floor guest bathroom had detached from the toilet tank. The Kenneys submitted a claim for the resultant water damage to their homeowners insurance carrier. Mr. Kenney came back to the home two days after the first incident and he turned the water on to the other bathrooms so they could be used. The following day, the Kenneys discovered that the toilet supply line in the first floor powder room failed in the same manner as the toilet in the guest bathroom. A subsequent investigation determined that the ballcock nuts on the toilets cracked. As a result of the water incidents, the Kenneys’ insurer paid them $280,988.87. The Kenneys also incurred out-of-pocket expenses.

The Kenneys’ insurer retained a mechanical loss consultant to investigate the cause of the loss. The loss consultant collected the Watts valve and fractured ballcock nuts, and hosted a joint evidence examination with representatives of Watts. The expert tested the valve and found that the valve did not reduce water pressure. He also found, on disassembly of the valve, excessive deterioration of critical components within the valve. Subsequently, the loss consultant issued a report opining that the water loss was caused by over-pressurization as a result of the failure of the valve. He also opined that Watts’ maintenance instructions were ambiguous and did not provide any inspection protocol for the valve. Further, he opined that while the warnings regarding valve inspections changed throughout the years, they never provided a detailed protocol for said inspections.

Watts’ expert engineer agreed that the components within the valve failed due to deterioration, but believed that the Kenneys were responsible for the failure. Watts’ expert opined that the instructions were adequate and not ambiguous, and that the homeowners failed to inspect the valve for damage as advised in the Watts maintenance instructions. Watts also retained another engineer who opined that the ballcock nuts failed due to overtightening by Mr. Kenney.

The insurer, proceeding Mr. Kenney’s name, sued Watts for negligence, strict liability and breach of warranties. The strict liability count alleged failure-to-warn, design defect and manufacturing defect claims. Watts filed a motion to exclude the testimony of the plaintiff’s liability experts. With respect to the mechanical loss consultant, Watts sought to exclude his testimony that Watts’ instructions were ambiguous. Watts also moved for summary judgment on grounds that the plaintiff failed to establish a prima facie case of causation or a defective condition necessary to succeed on its strict liability, negligence and breach of warranty claims.

The court recognized that Federal Rule of Evidence 702 was the guiding standard when reviewing the admissibility of expert testimony. One of the main parameters of the analysis is the "fit" prong, which requires that the expert testimony adequately fit the issues in the case. The court clarified that the expert's testimony must be relevant for the purpose of the case and must assist the trier of fact. Although the court recognized that the mechanical loss consultant was qualified to offer his opinions regarding the defects of the valve and maintenance instructions, the court found that the consultant’s opinion regarding the warnings did not meet the criteria for the “fit” prong. Thus, the court excluded the mechanical loss consultant’s warnings testimony.

In reaching its decision, the court noted that Pennsylvania recognizes strict liability for failure-to-warn claims under the Second Restatement of Torts. The court also noted that in order to establish a failure-to-warn claim, the plaintiff must demonstrate that he would have avoided the danger had he been warned of it by the seller. Since discovery revealed that the Kenneys had never seen or read the instructions because they did not know that the valve was in their home – an issue for which they did not attribute fault to Watts – the level of detail in the warnings was irrelevant because the warning could not have prevented the injury. As a result, the court excluded the mechanical expert’s testimony regarding the manufacturer’s maintenance instructions as irrelevant.

The Kenney case establishes that, in the Eastern District of Pennsylvania and other jurisdictions following Federal Rule of Evidence 702, a plaintiff’s expert opinion can be excluded if the plaintiff cannot establish a prima facie case for the claim upon which the expert opinion is being offered. In other words, an expert’s opinions can be excluded if his or her opinions do not fit the facts of the case. This case reminds us that the admissibility of expert testimony is partly reliant on whether the facts adequately support the claims for which the expert testimony is being offered.