Part of Tim Allen’s character, Tim the Tool Man, included teaching the fictional Tool Time tv audience how to fix things at home, preferably with larger, louder, power tools.  Often something would go wrong, and there would be a hole, a leak, or a fire instead of a job well done.  That same spirit infuses the recent federal court decision that only an expert with specialized knowledge can explain to jurors how a toilet seat should be attached to a bowl. See Wells v. Wal-Mart Stores, Inc., No. 15-69, 2016 WL 1453912 (E.D. Ky., 4/13/16).

Plaintiff claimed that he was injured when a defective toilet seat he purchased at WalMart Stores, Inc. broke. Wells alleges that Wal-Mart designed and manufactured the defective toilet seat, and that it failed to adequately warn him of the risk associated with using it.  Wal-Mart  moved for summary judgment, arguing that there was no genuine issue of material fact in this case because Wells failed to disclose an expert witness by the required deadline.

Kentucky law recognizes the main three theories of product liability: defective design, defective manufacture, and failure to warn. KRS § 411.300-.350. All of these theories of recovery require the plaintiff to prove the presence of a defect in the product. Prather v. Abbott Labs., 960 F. Supp. 2d 700, 706 (W.D. Ky. 2013). And if Wells could not prove an essential element of his case—here the presence of a defect—at trial, defendant would be entitled to summary judgment.

Expert witnesses are “generally necessary” in a Kentucky products liability case to prove the presence of a defect. Honaker v. Innova, Inc., No. CIV.A. 1:04-CV-132-M, 2007 U.S. Dist. LEXIS 30225 , [2007 BL 9643], 2007 WL 1217744 , at *2 (W.D. Ky. Apr. 23, 2007). This is because evidence that induces mere “surmise or speculation” is not sufficient to establish that a defect exists. Midwestern V. W. Corp. v. Ringley[*2] , 503 S.W.2d 745 , 747 (Ky. 1973). Instead, Kentucky law requires a party to produce an expert witness when a subject is of the type which “requires scientific or specialized knowledge and which cannot be determined intelligently from testimony on the basis of ordinary knowledge gained in the ordinary affairs of life . . . .” Com., Dept. of Highways v. Robbins, 421 S.W.2d 820 , 824 (Ky. 1967).

Thus, the question presented here was whether an ordinary person is familiar enough with the principles of toilet seat engineering to know whether a toilet seat is defective. How should one attach a toilet seat to a toilet bowl? Is a plastic bolt sufficient to do the job? Or is a metal bolt the way to go? How should the bolt be designed? How long? The court decided that an ordinary person does not know the answers to these questions. Instead, specialized, expert knowledge was required to answer them correctly.  As Wells’s own theory of the defect illustrated, understanding how and why the plastic bolt was defective requires extensive technical knowledge: a person must understand the components of the toilet seat, how these components were put together, and whether a plastic bolt was sufficiently strong to attach these components to one another. A person must also understand the engineering intricacies of bolts and screws, including how to design and/or manufacture them to maximize their structural integrity, and how deep the Phillips head of such a component should be.

Without expert testimony, Wells would merely be asking the jury to “speculat[e], suppos[e], or surmise” that there was a defect in the toilet seat. Greene v. B.F. Goodrich Avionics Sys., Inc., 409 F.3d 784 , 793 (6th Cir. 2005). Such guesswork is impermissible under Kentucky law.

While Tim always called for “more power,” this job required more expertise.