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From Products Liability Law Daily, August 2, 2013

Washing machine manufacturer challenges Ninth Circuit’s approval of statewide class of owners despite no commonality

By Pamela C. Maloney, J.D.

Claiming that this case “suffers” from the same errors as two previous federal courts of appeals opinions, a washing machine manufacturer has asked the U.S. Supreme Court to review a decision by the U.S. Court of Appeals for the Ninth Circuit denying it permission to appeal a district court’s certification of four statewide classes of washing machine purchases who alleged that the machines had a propensity to develop odors that the manufacturer failed to disclose (BSH Home Appliances Corp. v. Cobb., Docket No. 13-138, July 30, 2013)

Background. The class members in the underlying action alleged that the front-loading washer washing machines at issue—Bosch and Siemens 27—were defective because they had the propensity to develop biofilm, mold, mildew, and odors, resulting in property damage. The manufacturer, BSH Home Appliances Corporation, challenged the certification of the class on the ground that the class lacked commonality. In support of its argument, the manufacturer offered evidence that, among other things, (1) 99 percent of the washer purchasers never complained of odors and, therefore, had not been harmed; (2) many purchasers who complained of odors had improperly installed or misused the washers; (3) all washing machines, both front- and top-loaders, could develop odors; and (4) some class members were aware of the potential for odors prior to purchase and bought the appliances anyway.

Questions presented. Based on the two recent decisions in which the U.S. Supreme Court vacated and remanded the class certification orders (Whirlpool v. Glazer (133 S. Ct. 1722 (2013); Dkt. No. 12-322) and Sears, Roebuck & Co. v. Butler, __ S. Ct. __ (2013); Docket No. 12-1067), the manufacturer presented the following questions:

  1. Whether after Comcast Corp. v. Behrend, 133 S. Ct. 1426 (2013), the absence of a showing that injury can be proved on a classwide basis precluded class certification under Federal Rule of Civil Procedure 23(b)(3).
  2. Whether, at the class certification stage of litigation, a district court must analyze the admissibility of expert testimony under the Daubert standards

The case number is: 13-138.

Attorneys: Brian J. Murray (Jones Day) for BSH Home Appliances Corporation.

Companies: BSH Home Appliances Corporation

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