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From Products Liability Law Daily, October 9, 2013

Review sought of another decision to certify class of Ohio purchasers of high-efficiency washing machines

By Pamela C. Maloney, J.D.

The manufacturer of high-efficiency front-loading washing machines has again asked the U.S. Supreme Court (Whirlpool Corp. v. Glazer, Docket No. 13-431, October 7, 2013) to review the U.S. Court of Appeals for the Sixth Circuit’s reinstatement of its decision affirming the certification of a class of Ohio residents who alleged that the front-loading washing machines they had purchased contained a design defect that prevented the rinsing away of all detergent/fabric softener and the complete draining of the laundry drum (In re: Whirlpool Corp. Front-Loading Washer Products Liability Litigation (Glazer v. Whirlpool Corp.), July 18, 2013). In response to the manufacturer’s previous petition (Whirlpool Corp. v. Glazer, Dkt. No. 12-322, April 1, 2013 [for complete details see the April 1, 2013 story]), the U.S. Supreme Court had remanded the case to the Sixth Circuit for reconsideration in light of its decision in Comcast Corp. v. Behrend, 569 U.S. __, 133 S.Ct. 1426 (2013). Upon reconsideration, a two-judge panel for the Sixth Circuit deemed Comcast of limited application.

Background. In the underlying action, the class members alleged that as a result of the accumulation of mold in the washers, the members experienced unpleasant odors, ruined laundry, and malodorous homes. In particular, two of the named class representatives, Gina Glazer and Trina Allison, alleged that their washing machines did not prevent or eliminate accumulating residue, which led to the growth of mold and mildew in the machines. As certified, the liability class comprised current Ohio residents who had purchased one of the specified washing machines in Ohio primarily for personal, family, or household purposes (and not for resale) and who brought legal claims for tortious breach of warranty, negligent design, and negligent failure to warn against Whirlpool. Proof of damages was reserved for individual determination.

Basis for petition. This petition, which was filed contemporaneously with the petition filed in Sears, Roebuck and Co. v. Butler (Docket No. 13-430, October 7, 2013), presents issues similar to those arising in class actions involving Whirlpool-manufactured front-loading washers sold by Sears in six states. Whirlpool argued that the Sixth Circuit’s decision conflicts sharply with Supreme Court precedents, including the Comcast decision, and exacerbates an existing circuit split. According to Whirlpool, Comcast established a fortiori that class certification was improper in this case because the determination of liability, injury, and damages varied from appliance owner to appliance owner.

Questions presented. Whirlpool presented two questions for consideration: (1) whether the Rule 23(b)(3) predominance requirement could be satisfied when the court has not found that the aggregate of common liability issues predominated over the aggregate of individualized issues at trial and when neither injury nor damages can be proven on a classwide basis and (2) whether a class may be certified when most members had never experienced the alleged defect and both fact of injury and damages would have to be litigated on a member-by-member basis.

The case number is: 13-431.

Attorneys: Stephen M. Shapiro (Mayer Brown LLP) for Whirlpool Corp. Michael T. Williams (Wheeler Trigg O'Donnell LLP) for Gina Glazer and Trina Allison.

Companies: Whirlpool Corp.

MainStory: TopStory DesignManufacturingNews HouseholdProductsNews

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