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From Products Liability Law Daily, July 21, 2015

Illinois plaintiff class certified in moldy Kenmore washer defect suit

By Georgia D. Koutouzos, J.D.

After at least a decade of legal wrangling and rulings going up to the U.S. Supreme Court at least twice, an Illinois federal trial court certified a class of Illinois-only purchasers of Kenmore-brand front-loading, high-efficiency washing machines to bring claims against Sears, Roebuck and Co. and the machines’ manufacturer, Whirlpool Corp. Over the defendants’ objections, the class definition includes numerous models of Kenmore washers with the alleged design defect and without the steam feature regardless of when each model was manufactured and, at least at this juncture, does not include subclasses for different washer models (Leonard v. Sears, Roebuck and Co., July 20, 2015, Rowland, M.).

Background. Karen Freeman and Peggy Lemley alleged that they had purchased a Kenmore-brand front-loading, high-efficiency washing machine manufactured by Whirlpool Corporation and sold by Sears, Roebuck and Co. and that their machines developed serious internal mold problems. Specifically, the individuals alleged that their washers contained a serious design defect that prevented adequate water drainage and caused them to both accumulate mold and mildew within the device and to produce a moldy odor that permeated their homes if the doors to the washers were left open. In addition, the washing machines left a mold or mildew odor on clothes washed therein, and failure to clean the machines and to remove moisture, residue, growth, and/or bacteria led to the formation of mold, mildew, and/or associated foul odors to such an extent that the devices were unusable in the manner and for the purpose for which they had been advertised, marketed, and sold. Freeman and Lemley asserted claims for breach of express written warranty and breach of implied warranty in violation of both federal law and Illinois law.

Originally, the two individuals had sought certification of a six-state class of owners of Kenmore washing machines that developed the mold problem, but their motion for class certification was denied in an earlier decision. The individuals appealed that ruling and a federal appellate panel reversed the trial court’s determination, holding that the class should have been certified. Sears petitioned for a Writ of Certiorari and the U.S. Supreme Court vacated and remanded the appeals court’s prior judgment, but on remand the appellate panel again concluded that the trial court should have certified the multi-state class. Sears again petitioned the High Court. The second petition was denied, however, leaving the trial court to follow the appeals court’s mandate—including its conclusions that: (1) there is a single, central, common issue of liability, i.e., whether the Sears washing machine was defective and (2) any complications caused by design differences in various washing machine models could be handled by the creation of subclasses, if necessary (see prior Products Liability Law Daily analyses from June 3, 2013; August 23, 2013; October 8, 2013; and February 24, 2014).

In the instant case, the two individuals’ latest request was for certification of a an Illinois-only class of “[a]ll persons or entities who purchased, not for resale, any Kenmore front-load washing machine manufactured by Whirlpool through 2008, without a steam feature, other than those [machines] built on the ‘Sierra’ [engineering] platform.” The class definition included numerous models of Kenmore washers.

Propriety of class certification. When the trial court first addressed the motion for certification of a “mold class,” it set out the applicable legal standards as established under federal procedural requirements, namely: numerosity, commonality, typicality, and adequacy of representation. Sears did not dispute that the putative plaintiffs met the numerosity and adequacy requirements, but asserted that Freeman and Lemley were not typical because their claims arose from a different “practice” or “course of conduct”—i.e., different washer designs—than did the claims of many other buyers. However, the appeals court explicitly rejected the argument that class certification had to be denied because the various washer models at issue had different designs. Ergo, Sears’ argument that the class should not be certified because Freeman and Lemley’s claims were atypical was wholly unpersuasive.

As for Sears’ objection to class certification on the basis that the putative plaintiffs could not prove a class-wide injury (because not all washers built up such an excessive amount of mold that it prevented adequate cleaning of clothes), the appeals court repeatedly observed that a class often will include persons who have not been injured by the defendant’s conduct, and that this possibility or inevitability did not preclude class certification. In sum, Sears’ perseverance in opposing class certification was overwhelmed by the constancy of the appellate court conclusions pointedly holding otherwise.

Class definition. The named plaintiffs sought to represent a class of owners of only certain Kenmore washers with particular design features (without a steam feature and other than those built on the “Sierra” platform), and there was no reason to expand or contract that proposal. Accordingly, as did the federal court overseeing a similar, multidistrict case involving Whirlpool-brand machines, the plaintiffs’ proposed definitional limitation that the class definition not include machines built on the Sierra platform was accepted. Contrary to the class in the MDL case, however, the instant litigation excluded washing machines with the steam feature.

As for the dates of the subject washers’ manufacture, rather than limiting the class to include only washers manufactured before a single end-date, the class was defined as including all of those washer models with the alleged design defect and without the steam feature, regardless of when each model was manufactured. As such, the earliest Kenmore included (model 110.4292) was first manufactured on January 12, 2001; the latest Kenmore washer included (model 110.4756) was manufactured through October 11, 2010; and the class included a total of 29 different models manufactured during a span of almost ten years.

Finally, the court did not require creation of subclasses for different washer models at present. For one thing, the plaintiffs did not request subclassing. In addition, they consistently have asserted that the defect causing the mold problem was the same across all washer models regardless of whether the model has a clean washer cycle or a sanitary cycle, and regardless of which of the two creviced plastic tub designs a model employed. Therefore, unless and until it appeared that different washer models had meaningfully different mold problems, subclassing was not appropriate.

The case is No. 06-CV-7023.

Attorneys: Paul M. Weiss (Quantum Legal LLC) for Larry Butler. Bradley B. Falkof (Barnes & Thornburg) for Sears, Roebuck & Co. Rebecca Weinstein Bacon (Bartlit Beck Herman Palenchar & Scott LLP) for Whirlpool Corp.

Companies: Sears, Roebuck & Co.; Whirlpool Corp.

MainStory: TopStory ClassActLitigationNews DesignManufacturingNews HouseholdProductsNews IllinoisNews

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