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From Products Liability Law Daily, October 30, 2014

Jury sides with Whirlpool on Ohio class moldy washer claims

By Susan Lasser, J.D.

Following a three-week trial, a federal jury in Ohio determined that Whirlpool Corporation was not liable for common-law negligent design and breach-of-implied-warranty claims brought by a class of Ohio residents who had purchased one of 20 models of the manufacturer’s Duet front-loading washing machines. The verdict followed the trial court’s denial of a renewed motion for decertification of the class (Glazer v. Whirlpool Corp., October 30, 2014, Boyko, C.).

Background. The class members had claimed that Kenmore-brand high-efficiency washers, manufactured for the Sears Holding Co. subsidiary by Whirlpool, Whirlpool's own-brand washers, and those manufactured by BSH, a subsidiary of Germany-based BSH Bosch und Siemens Hausgerate GMbH, were defective in part because they had the propensity to develop biofilm, mold, mildew, and odors, resulting in property damage. Both the manufacturers and sellers of the affected washing machines had challenged the certification of the class on the ground that in each case, the statewide class lacked commonality.

Whirlpool’s attack on the certification of the class had been rejected previously by this federal district court, by the U.S. Court of Appeals for the Sixth Circuit, and by the U.S. Supreme Court. Two days prior to the verdict, the trial court denied another motion to decertify the class by the manufacturer. The court rejected Whirlpool’s contention that common questions did not predominate over individual questions concerning the existence of a defect, proximate cause, and injury, and that its affirmative defenses presented matters for individual analysis. The company had also complained that should be decertified because it was filled with uninjured class members. The district court disagreed, finding that key facts and circumstances had not changed since Whirlpool’s previous challenges to certification. The court also stated that the existence of affirmative defenses did not defeat certification, and that Whirlpool’s arguments about uninjured class members were still unpersuasive.

Verdict and defect claims. The trial court denied Whirlpool’s motion for summary judgment on the class’s negligent design and breach-of-implied-warranty claims—finding sufficient expert testimony that all 20 models of the Duet washing machines at issue incorporated the same allegedly defective design features,i.e., crevices in the tub and crosspieces that trapped water and soil leading to build up of mold and mildew which, in turn, resulted in odors. The court also had found that there was expert testimony and documentary evidence, including Whirlpool’s own documents, which could lead reasonable jurors to differ as to whether subsequent design changes alleviated the mold issues.

However, two days later, the jury sided with Whirlpool in the first of a number of trials expected concerning the washing machines.

The case number is 1:08-WP-65001 (MDL 2001).

Attorneys: Brian G. Ruschel (Brian G. Ruschel, Attorney at Law) for Gina Glazer. James T. Irvin, III (Nelson, Mullins, Riley & Scarborough), Joel S. Neckers (Wheeler Trigg O'Donnell), and John C. Fitzpatrick (Bartlit, Beck, Herman, Palenchar & Scott) for Whirlpool Corp.

Companies: Whirlpool Corp.

MainStory: TopStory DamagesNews ClassActLitigationNews DesignManufacturingNews HouseholdProductsNews OhioNews

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