Expert in Pest Control Testifies in Hot Tub Products Liability Case

Four experts testified in a products liability case involving a hot tub.  One, an expert in pest management, opined about rodents chewing on electrical wires, which may have caused the fire.

This case (Merrimack Mutual Fire Ins Co v. Watkins Manufacturing Company et al – Connecticut District Court – May 26th, 2015) involves a possible malfunction of a hot tub which caused a residence fire.  The plaintiff is the homeowner’s insurer and the defendants are the manufacturer and retailer of the hot tub unit.  The plaintiff’s called four experts to opine on the cause of the fire, one of which was Dr. Richard Kaae, who is an expert in pest management.  Pesticides expert witnesses will want to take note of this case.

The four expert witnesses called by the plaintiff include 1) Michael Marino, a Connecticut state trooper who headed up the investigation of the fire; 2) Bill Lewis, a certified fire inspector; 3) Joseph Cristino, an electrical engineer and 4) Dr. Richard Kaae.

The plaintiff sued the defendants under the Connecticut Product Liability Act (CPLA) under a design defect claim.  The defense filed a motion for summary judgment based on three theories:  1) The expert testimonies proffered by the plaintiff is insufficient to satisfy a burden of proof under the CPLA; 2) The experts are not qualified to testify; 3) The experts testimony is not based on reliable data and methodology.

Discussion:  There are two parts of the courts opinion.  1) The untimely disclosure of plaintiff’s affidavits and 2) The sufficiency of the evidence.

First, the defense argues that Merrimack provided expert witness affidavits well after the discovery deadline.  The court ordered that expert disclosures were to be completed by December 15, 2013.  In its defense of defendant’s motion for summary judgment, the plaintiff’s submitted additional affidavits taken in October 2014, which is clearly after the deadline.  The plaintiffs provided no justification for doing so.  In addition, the affidavits filed after the deadline make substantive changes to the initial experts reports which the defendants may have wished to explore during its depositions.

Also, the defense argues that the plaintiffs did not establish a case under the CPLA in that there was a defect in the hot tub and did not provide sufficient evidence thereof to prove a design defect.  Counting on Dr. Kaae’s testimony, the plaintiff provides the theory that the design of the hot tub was unreasonably dangerous because it did not prevent rodents from accessing the control panel, which caused the fire.  Dr. Kaae opined that the manufacturer should have included a mesh screen to put over the hot tub’s control panel, not just recommendations of such. In addition, he indicated that the mesh should not be made of aluminum as rodents can eat through that kind of material.  But, he didn’t indicate that the hot tub at issue was made of aluminum, which is not proof that the hot tub is unreasonably dangerous.  Last, Dr. Kaae testified that acorns and nesting material were seen in the control panel and that there are reported instances in which rodents have chewed on electrical wire in the control panel, causing a fire, he does not opine that this was the case here.

Held:  Defendant’s motion for summary judgment against the insurance company is granted.