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From Products Liability Law Daily, July 19, 2013

Decision to affirm class certification for Ohio washing machine purchasers upheld on remand

By John W. Scanlan, J.D.

On remand from a decision by the U.S. Supreme Court vacating and remanding for further consideration a decision by the U.S. Court of Appeals for the Sixth Circuit, the court again affirmed the certification of a class of Ohio residents who alleged that washing machines they purchased contained a design defect that caused a mold problem (In re: Whirlpool Corp. Front-Loading Washer Products Liability Litigation (Glazer v. Whirlpool Corp.), July 18, 2013, Stranch, J.). Although the Supreme Court instructed the Sixth Circuit to reconsider its decision in light of the High Court’s holding in another case, the court determined that its analysis would not be changed by that ruling.

Background. Whirlpool Corp. began manufacturing its Duet front-loading washing machines in 2002. Trina Allison bought a Whirlpool Duet HT in 2005 and Glazer bought a Whirlpool Duet Sport in 2006. Both machines began to smell of mold or mildew within six to eight months, and although they contacted Whirlpool for advice, the problem continued. Glazer and Allison, who are both residents of Ohio, filed a class action against Whirlpool on behalf of consumers in Ohio, alleging that design defects in Whirlpool’s Duet, Duet HT, Duet Sport, Duet Sport HT washers caused them to be unable to clean their mechanical components, resulting in the development of “biofilm deposits.” This allegedly caused mold and mildew to grow in the machines, resulting in damaged clothes and unpleasant smells in the homes in which they were installed.

This suit was consolidated with other, similar suits in multi-district litigation in the Northern District of Ohio in which the purchasers brought claims for tortious breach of warranty, negligent design, and negligent failure to warn. Whirlpool opposed the motion for class certification, but the district court certified the class. The Sixth Circuit affirmed, but the U.S. Supreme Court granted certiorari and vacated the judgment (Whirlpool Corp. v. Glazer, Dkt. No. 12-322, April 1, 2013), remanding it to the Sixth Circuit to reconsider its decision to affirm the grant of class certification in light of its opinion in in Comcast Corp. v. Behrend, 569 U.S. ___ (2013).

Numerosity. The thousands of Duets shipped by Whirlpool to Ohio for retail sale were sufficient to meet the numerosity requirement of Rule 23(a).

Commonality. There were two primary questions that were common to all members of the liability class: whether the alleged design defects proximately caused mold or mildew to develop, which were essential to deciding the claims for strict liability/breach of implied warranty and negligent design; and whether Whirlpool provided adequate warning to consumers of the tendency for mold to grow in the machines, which was essential to deciding the claims for negligent failure to warn. While Whirlpool built 21 different models of Duets over several years, commonality nevertheless was established because evidence provided by Glazer and Allison showed that the two basic platforms were nearly identical in design.

Although the manufacturer had argued that proximate cause would need to be established for each individual plaintiff because laundry habits varied by household, its own documents established that the mold problem occurred despite differences in consumer habits and despite efforts undertaken to remediate the problem. Furthermore, an expert proffered by the two consumers testified that although changes made by Whirlpool to the design of the tub may have rectified part of the mold problem, other design defects common to these machines remained that caused mold and mildew growth.

Typicality/adequate representation. Glazer and Allison were not atypical of members of the class, the court found. Whirlpool asserted that the class was too broad because it included consumers who had not experienced mold problem, and that Glazer and Allison could not represent these consumers. However, under existing precedent, the existence of currently satisfied consumers of a product did not preclude certification of a class when the elements for class certification under Rule 23 were met.

The two plaintiffs alleged on behalf of all Duet owners that Whirlpool had impliedly warranted that the washers were of good and merchantable quality, fit and safe for their intended use. If the defect is ultimately proved, the court said, all purchasers of Duets will have experienced injury as the result of the decreased value of the machines, even those who had not yet experienced a mold problem. Although Ohio law does not permit damages under a “premium price theory of recovery,” ordinary consumers not in privity with a product manufacturer may bring claims for economic injury only. Furthermore, under the negligent failure to warn theory, the plaintiffs would not have to prove that every Duet owned by a class member had developed a mold problem because the injury occurred when Whirlpool failed to disclose the machines’ propensity to develop a mold problem.

Predominance/superiority. The Sixth Circuit agreed with the district court that common liability questions predominated over individual questions. Evidence presented by the parties at trial will prove or disprove regarding all class members the questions of whether the alleged design defects caused biofilm to accumulate, resulting in mold growth, and whether the manufacturer adequately warned consumers of the risk of mold growth. Whirlpool’s objection did not indicate a “fatal dissimilarity” among members of the class, but indicated what the company believed to be a “fatal similarity” in an alleged failure of proof regarding an element of the claims. However, this issue is properly addressed at trial, and should not be resolved when determining whether to certify a class.

The Sixth Circuit determined that its analysis was not affected by the U.S. Supreme Court’s decision in Comcast Corp. v. Behrend, 569 U.S. ___ (2013), which held that a class of cable television providers subscribers was improperly certified because the subscribers’ damages model did not allow for a calculation of damages across the class. The Court stated in that case that the damages model failed to meet the requirements for the federal rule of civil procedure governing class actions (Rule 23) because it would require individual inquiries. The Sixth Circuit distinguished Comcast Corp. from the present case in that in the earlier case, a class was certified for both liability and damages, but in the present case, the district court certified only a liability class and left damages to be calculated in individual determinations. Because liability and damages determinations have been bifurcated in the present case, Comcast Corp. had limited applicability, the court found. The Sixth Circuit reasoned that Comcast Corp. had reaffirmed the rule that liability issues must be susceptible to common proof to meet the predominance standard, and decided that this requirement had been met in the present case. The court concluded that class certification was the superior method for adjudicating this case fairly and efficiently because individual class owners likely would not file individual claims due to cost of bringing individual suits compared to their likely recovery.

The case number is 10-4188.

Attorneys: Jonathan D. Selbin (Lieff, Cabraser, Heimann & Bernstein) for Gina Glazer. Malcolm Edward Wheeler (Wheeler Trigg O'Donnell) and Francis Daniel Balmert (Vorys, Sater, Seymour & Pease) for Whirlpool Corp.

Companies: Whirlpool Corp.

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