Roger and Reuki Schutt (the “Schutts”) are the owners of a house located at Canton, Massachusetts. On April 24, 2019, the house sustained water damage resulting in the payment of insurance benefits by Safety to the Schutts. The water damage was determined to have originated from a leak in a water filter system manufactured and sold by EcoWater under the tradename Northstar.

On October 23, 2019, the filter system was examined at a joint inspection by experts for both EcoWater and Safety. The sump was observed to have a “throughwall crack extending the entire length of the housing,” as well as “additional cracks.” EcoWater did not use annealing in the production process for its clear sumps. Post-mold annealing is the process of cooling a mold-injected polymer after manufacture.

On April 4, 2022, Plaintiff Safety Insurance Company (“Safety”) filed suit in Massachusetts Superior Court against Defendant EcoWater Systems, LLC (“EcoWater”), asserting its right of subrogation arising from water damage to the property of Roger and Reuki Schutt.

Safety disclosed two experts in support of its case: (1) “appliance failure inspector” expert Thomas Zarek and (2) materials science expert Timothy Kenney.

Zarek opined that the product failed prematurely at the loss location and caused the water damage while Kenney concluded that it was common practice to post-mold anneal these thick wall parts to reduce these residual stresses and improve the performance of the part.

EcoWater filed motions in limine to exclude the opinions and testimony of Thomas Zarek and Timothy Kenney under Rule 702.

Appliances Expert Witness

Thomas Zarek has been employed as an appliance failure inspector since 1997. Regarding his areas of expertise, Zarek holds himself out as a warnings expert, a certified fire and explosion investigator, a certified vehicle fire investigator, and a licensed oil heating inspector and installer. Also, he has taken “a number of courses on appliance failure analysis and on HVAC systems installation,” covering a variety of appliances and materials, including polymers and metals.

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Materials Science Expert Witness

Timothy Kenney’s qualifications and experience include a degree in geology, undergraduate engineering courses in materials science, graduate courses in metallurgy, ceramics, and selection of steels, and various publications. Besides, he serves as the Laboratory Director of New Hampshire Materials Laboratory.

NHML provides consulting and technical services in chemical, materials, mechanical design, and industrial processing.

Fortify your strategy by reviewing a Challenge Study detailing grounds for excluding Timothy Kenney’s expert testimony.

Discussion by the Court

Thomas Zarek

To begin with, Safety’s complaint claimed negligence and breach of warranty based solely on defective manufacture of the filter system. Therefore, the Court held that Zarek’s opinions as they relate to other theories of negligence, such as failure to reasonably warn or defective design, are irrelevant since any expert testimony must therefore be limited to establishing the manufacturing defect claim.

Zarek testified that his conclusions regarding the filter system’s allegedly premature failure are based, at least in part, on his review of EcoWater’s Test ID 4499, which tested canisters similar to the subject sump through a cycle test and hydrostatic test. Yet, the Court found that Zarek himself admitted that he has never performed a cycle test himself for any kind of product and that he does not know what cycle testing is intended to evaluate. As for the hydrostatic testing, Zarek likewise testified that he has never conducted a hydrostatic test on a polymer product or on the styrene acrylonitrile (“SAN”) material used in the subject product, and that the purpose of a hydrostatic test is not to test to failure.

The Court held that Zarek’s lack of relevant experience and knowledge pertaining to the claims alleged makes clear that he is not qualified to offer expert testimony here.

Second, the Court held that Zarek’s opinions reflected little to no expert analysis or review done by Zarek. Several of his proffered opinions merely repeated Kenney’s conclusions, without adding anything more. He stated that he personally did no analysis of the data from the testing performed by Kenney.

Timothy Kenney

In opining that post-mold annealing is a “general industry practice,” Kenney exclusively relied on the ASM International Volume 2 of the Engineered Materials Handbook. The Court held that Kenney himself undermined the relevance of this guidance where he testified that there is a difference between thick-section and heavy wall parts, that the subject sump is a thick-section part, and that the ASM handbook only recommends post-mold annealing for heavy-wall parts and not thick-section parts.

Also, he conceded that he did not conduct any testing to evaluate the effects of post-mold annealing on the product and whether such annealing would have alleviated residual stress, nor has he seen any studies or test reports to that effect.

Moreover, EcoWater also filed a motion for summary judgment seeking to dismiss the case entirely. The Court held that where Safety has no expert support for its claims—which, again, arise exclusively from allegations of negligent manufacture—Safety’s claims cannot survive summary judgment.

Held

To sum it up, the Court granted EcoWater’s motions in limine to exclude Plaintiff’s experts, Thomas Zarek and Timothy Kenney as well as his motion for summary judgment.

Key Takeaway:

In conclusion, the Court held that many of Zarek’s opinions reflected little to no expert analysis or review done by Zarek. While Zarek’s opinions were irrelevant to Safety’s claims regarding negligent manufacture of the filter system, Kenney had no basis to opine as to whether post-mold annealing would have prevented the subject product from failing here, after fourteen years of use.

Case Details:

Case Caption:	Safety Insurance Company Et Al V. Ecowater Systems, Llc
Docket Number:	1:22cv10887
Court:	United States District Court, Massachusetts
Order Date:	May 17, 2024

Category: Appliances Expert Witness

Appliances Expert Witness’ Testimony Fails to Establish the Manufacturing Defect Claim

Appliances Expert Witness’ Testimony Fails to Establish the Manufacturing Defect Claim