Expert Testimony Is Required In Real Estate Disclosure Cases Involving Water Intrusion
I’ve frequently written about the need for expert testimony in cases that involve water. Those cases usually involve landowner disputes, in which one owner sues another because of water flowing onto the owner’s land. Those cases usually fail without an expert witness regarding the source and cause of the water intrusion. But in Putnam v. Walther, the Iowa Court of Appeals ruled that such expert testimony is also necessary in a case in which Putnam, a real estate buyer, sued the sellers of her home, the Walthers, claiming that they failed to disclose issues with the home that allowed water intrusion.
The Walthers sold their house to Putman. In the Seller Disclosure of Property Condition, the Walthers revealed that the basement only had a “2010 sewer back up and SW wall seepage a few times.” But after Putman took possession of the home, she experienced significant water infiltration in the basement. Putnam sued the Walthers for fraud for failure to disclose the basement defects that allowed the water intrusion.
Putnam didn’t designate an expert witness concerning the source and cause of the water intrusion. The Walthers asked the trial judge to dismiss Putnam’s case because she lacked an expert witness. Putnam responded to that motion and identified several sources of information regarding the water: (1) city employees called to her home to observe the water infiltration; (2) Magee Construction, the company that conducted an inspection and provided a repair estimate; (3) realtor Steve Burrell, who provided a sale price estimate; and (4) neighbors who could testify as to the water in her basement. Putman also asserted that she could “testify as to the source of water and her observations having lived in the home for more than a year.” Expanding on that point, Putman submitted an affidavit, stating “[t]hat water came in to the basement from sanitary sewer overflow, seepage through the floor and walls and other unknown sources.”
The trial court rejected Putnam’s arguments. The trial judge said that “expert testimony is required on the issues of causation and damages, because the cause of water damage to the house and the cost of repair are not common knowledge to a lay person.” The court ruled that Putman had not properly designated or disclosed an expert on the issues of causation or damages. Consequently, the court dismissed Putnam’s fraud claims. Putnam appealed that decision.
On appeal, Putnam conceded that she needed expert testimony to prove her claims. She contended that she had identified such expert testimony in response to the dismissal arguments. The Iowa Court of Appeals disagreed, noting that Putnam didn’t properly designate an expert witness.
Because Putnam needed but lacked expert testimony to support her water intrusion allegations, the Iowa Court of Appeals affirmed the trial court decision. Dismissal is appropriate when a plaintiff’s claims must be supported by expert testimony and the plaintiff fails to designate an expert witness. The lesson from this case is that plaintiffs who wish to pursue a claim involving water intrusion, under any circumstances and against any defendant, are likely to fail without expert testimony to support the claim.