In the competitive world of insurance subrogation, success often hinges not just on the facts of the case or the law but on one simple, early decision: Did you hire the right expert?
As a firm with product liability lawyers, some of whom have over 40 years of national experience handling subrogation litigation in fire, water damage, explosion, and product liability cases, MWL has learned that this seemingly small decision can determine whether recovery is secured or lost to summary judgment.
The Temptation to Go Cheap: A Costly Mistake
Insurance carriers or third-party adjusting companies (TPAs) often rely on vendors with standing contracts and discounted rates to conduct cause and origin investigations. While this approach can seem cost-effective, it is frequently a penny-wise, pound-foolish decision. These vendors, while efficient, often retain generalists who may be ill-equipped to identify product defects or satisfy the high bar for expert testimony required in litigation. Worse yet, they may be simply an origin expert masquerading as a cause expert. We see it frequently.
Take, for example, a recent MWL file involving a water loss at a Connecticut residence. The homeowner reported damage on August 1, 2024, near a bathroom door. A popular national engineering firm (which we will not name) was retained by the insurer’s TPA to investigate. Their expert concluded that the shower arm had been cut using a saw-like tool, resulting in a leak. However, the report ambiguously stated that “the cause of the cut could not be determined.” When you see words like these in a report know one thing—the value of the report is less than the piece of paper it is written on.
This vague and inconclusive finding left everyone scratching their heads. The real question—who caused the damage, and when?—was unanswered. There were suggestions to pursue a subrogation claim against the product manufacturer, even though the report essentially ruled out a defect. This misguided attempt at cost-saving may have undercut a promising claim against the actual liable party: the installer. Worse yet, the delay and confusion created by the inadequate report risked missing the statute of limitations and irreparably damaging the evidentiary record.
While it is true that hiring the expert who can take your large subrogation claim across the finish line will be more expensive than the less expensive outfit you traditionally use, and in some instances, much more expensive, successful subrogation requires the best, not the cheapest. Recall the story of the engineering consultant who was called to repair a broken machine that had brought a factory to a standstill. He tightened a single screw and within about five minutes the whole factory was back on line. When a $1,000 bill was received, the factory owner was outraged, “You spent just five minutes here, tightened one screw, and we received a bill for $1,000!” The consultant smiled, “The tightening of the screw was free. The $1,000 was for knowing which screw to tighten!”
There are no shortcuts in life, and that includes subrogation. Fast food is popular because it’s convenient, it’s cheap, convenient, and it tastes good. But the real cost of eating fast food never appears on the menu and is rarely discovered until your subrogation case is dismissed.
Lessons from the Courtroom: Progressive v. Adventurer Manufacturing
The recent Minnesota Court of Appeals decision in Progressive Preferred Insurance Co. v. Adventurer Manufacturing Inc., 2025 WL 1429565 (Minn. App. May 19, 2025) offers a cautionary tale. Progressive brought a subrogation claim after an RV caught fire while plugged in during freezing weather. Their expert correctly identified the area of origin (battery compartment) but failed to isolate an exact defect or malfunction in the inverter/charger or battery heater system. The court granted summary judgment to the manufacturer. Although the appellate court ultimately reversed and remanded, the case underscores the danger of relying on experts who are limited to origin analysis and unable to articulate a precise product defect.
The case also exemplifies the critical importance of causation specificity. When manufacturers are targeted for alleged product failures, the burden is not simply to show that their product was involved in the incident. Plaintiffs—and by extension, subrogated carriers—must prove that the product was defective, and it must identify the specific design or manufacturing defect that was the proximate cause of the loss. This is especially true in jurisdictions that apply the Restatement (Third) of Torts, which requires a showing that a reasonable alternative design existed at the time the product was manufactured. In such jurisdictions, the pool of experts from which you can draw narrows significantly. Such an expert must not only identify the failure, but must be able to answer questions like:
- Why did the product fail?
- Was it a design defect? A manufacturing error? Inadequate warnings?
- What specific component or process caused the failure?
- Was there a safer, feasible alternative design?
- What was that safer, feasible, alternative design?
If your expert doesn’t have the design experience necessary to pass Daubert muster, the case may never reach a jury.
Cause and Origin: Know the Difference
It’s common for insurers and TPAs to retain Certified Fire Investigators (CFIs) when a fire is suspected to have originated from a defective product like a dehumidifier or lithium ion battery. CFIs have a critical role in determining the origin and cause of a fire—but this expertise does not extend to identifying design or manufacturing defects. Why?
- CFIs focus on burn patterns, accelerants, and ignition sources.
- They lack formal training in product design, materials science, and manufacturing processes.
- Their certifications do not qualify them to offer opinions on design alternatives or product failures in court.
Only forensic engineers or product-specific experts are equipped to:
- Identify the precise defect that triggered the failure.
- Propose a reasonable alternative design.
- Satisfy Daubert/Frye standards for expert testimony.
This distinction becomes even more important when preparing for litigation. Opposing counsel will almost certainly move to exclude unqualified experts. Judges acting under Rule 702 of the Federal Rules of Evidence or equivalent state rules will evaluate whether your expert’s testimony is based on reliable principles, has been tested, and is accepted by the scientific community. If your expert only addresses the “what” and not the “why” or “how,” their testimony will not be allowed, and it is game over.
The Legal Landscape: Admissibility Standards Are Getting Tougher
In today’s courts, simply being an expert isn’t enough. Under the Daubert standard (and similar state equivalents), courts act as gatekeepers, requiring:
- Opinions grounded in sufficient facts or data.
- Reliable principles and methods.
- A reliable application of those methods to the facts.
Courts are increasingly skeptical of conclusory or speculative expert opinions. The days of junk science and rubber-stamping “expert” opinions based on resume and reputation are over. In Daubert v. Merrell Dow, the U.S. Supreme Court gave trial courts broad discretion to exclude expert testimony that fails to meet rigorous standards. This includes speculative causation opinions, opinions unsupported by testing, and experts who cannot articulate the scientific basis for their conclusions. In federal court and in most states, if your expert can’t explain the “why” and “how”—not just the “what”—you risk exclusion and summary judgment. This is where MWL adds value.
MWL’s Advantage: Our Research Bank and Expert Database
MWL maintains a proprietary subrogation research bank—assembled over four decades—that allows us to avoid reinventing the wheel. Whether it’s a construction defect in California or a lithium-ion battery fire in Florida, we likely already have legal research and claims experience in that exact scenario. We also maintain a curated expert witness database containing thousands of qualified experts in disciplines ranging from plumbing to electrical engineering to failure analysis. We know who wins, who is cost-effective, and who can withstand Daubert challenges.
In the Walrath matter discussed earlier, a subrogation claim was nearly derailed because a vendor’s expert failed to identify a specific cause of loss. MWL’s analysis revealed that the report, while confidently stating that a shower arm had been cut, failed to determine who cut it, when, or why. Without this information, subrogating against the manufacturer was pointless. This underscores the importance of engaging a qualified forensic expert—not just one who can observe damage, but one who can attribute it to a legally responsible party.
Engaging MWL early allows us to direct the investigation with the right expert—at the right price and with the right qualifications—for the venue and facts at issue.
Mistake #10: Subrogation and the Flat Earth Society
In our popular article “10 Subrogation Mistakes Carriers Keep Making,” Mistake #10—”Subrogation and the Flat Earth Society”—illustrates the dangers of using underqualified or inappropriate experts to investigate technical losses. You can read the article HERE. When claims handlers rely on the wrong kind of expert, the result is often a confused or inconsistent report, a misguided claim against the wrong party, or an inability to meet evidentiary thresholds.
Too often, we see reports that diagnose a failure but stop short of identifying its root cause, linking it to a defect, or connecting it to a breach of duty. These missing pieces can be fatal to your claim. Courts have little patience for speculative connections or amateur forensics. If there is any point at which an insurer should not cut corners, it’s when choosing the expert.
Conclusion: Engage Subrogation Counsel Early
For over 40 years, MWL has guided carriers through every phase of subrogation litigation—from initial scene inspections to trial. We’ve seen what works. And we know what fails. We have access to an arsenal of tools that other firms simply don’t:
- Decades of compiled subrogation case law and research.
- A vetted roster of experts categorized by discipline, success rate, and budget.
- A nationwide network of trial-tested legal professionals.
One of the many ways MWL has distinguished itself in this field is through its longstanding relationship with the National Board of Trial Advocacy (NBTA), an organization that certifies attorneys in various trial practice areas through rigorous examinations and peer review. For years, MWL attorneys have authored the national product liability certification exam for NBTA and graded the answers submitted by thousands of seasoned product liability lawyers across the country seeking board certification. This role not only reflects MWL’s national recognition as an authority in product liability law but also reinforces our unique insights into what courts and litigators expect from expert testimony and defect analysis in subrogation cases.
The best results come when clients involve us early. Let us recommend the experts. Let us help shape the investigation. Let us do what we do best—turn claims into recoveries. Subrogation isn’t just about getting your money back. It’s about doing it efficiently, credibly, and successfully. That starts with selecting the right expert.
For questions about taking the right steps and the right time when facing a catastrophic property subrogation loss involving fire or water, contact Lee Wickert at leewickert@mwl-law.com.
