722 F.3d 838 (6th Cir. 2013), 10-4188, In re Whirlpool Corp., Front-Loading Washer Products Liability Litigation

Docket Nº:10-4188.
Citation:722 F.3d 838
Opinion Judge:JANE B. STRANCH, Circuit Judge.
Party Name:In re WHIRLPOOL CORPORATION FRONT-LOADING WASHER PRODUCTS LIABILITY LITIGATION. v. Whirlpool Corporation, Defendant-Appellant. Gina Glazer, Individually and on behalf of all others similarly situated; Trina Allison, Individually and on behalf of all others similarly situated, Plaintiffs-Appellees,
Attorney:Malcolm E. Wheeler, Wheeler Trigg O'Donnell LLP, Denver, Colorado, for Appellant. Jonathan D. Selbin, Lieff, Cabraser, Heimann & Bernstein, LLP, New York, New York, for Appellees. Malcolm E. Wheeler, Michael T. Williams, Galen D. Bellamy, Joel S. Neckers, Wheeler Trigg O'Donnell LLP, Denver, Colo...
Judge Panel:Before: MARTIN and STRANCH, Circuit Judges.[*]
Case Date:July 18, 2013
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

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722 F.3d 838 (6th Cir. 2013)


Gina Glazer, Individually and on behalf of all others similarly situated; Trina Allison, Individually and on behalf of all others similarly situated, Plaintiffs-Appellees,


Whirlpool Corporation, Defendant-Appellant.

No. 10-4188.

United States Court of Appeals, Sixth Circuit.

July 18, 2013

Argued: Jan. 12, 2012.

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Malcolm E. Wheeler, Wheeler Trigg O'Donnell LLP, Denver, Colorado, for Appellant.

Jonathan D. Selbin, Lieff, Cabraser, Heimann & Bernstein, LLP, New York, New York, for Appellees.


Malcolm E. Wheeler, Michael T. Williams, Galen D. Bellamy, Joel S. Neckers, Wheeler Trigg O'Donnell LLP, Denver, Colorado, F. Daniel Balmert, Anthony J. O'Malley, Vorys, Sater, Seymour and Pease LLP, Cleveland, Ohio, for Appellant.

Jonathan D. Selbin, Jason L. Lichtman, Lieff, Cabraser, Heimann & Bernstein, LLP, New York, New York, for Appellees.

John H. Beisner, Skadden, Arps, Slate, Meagher & Flom LLP, Washington, D.C., for Amicus Curiae.

Before: MARTIN and STRANCH, Circuit Judges.[*]


JANE B. STRANCH, Circuit Judge.

Gina Glazer and Trina Allison filed a class action lawsuit on behalf of Ohio consumers against Whirlpool Corporation alleging that design defects in Whirlpool's Duet®, Duet HT®, Duet Sport®, and Duet Sport HT® front-loading washing machines (the Duets) allow mold and mildew to grow in the machines, leading to ruined laundry and malodorous homes. This suit and similar suits filed against Whirlpool in other jurisdictions are consolidated in multi-district litigation managed by the district court in the Northern District of Ohio.

The district court certified a liability class under Federal Rules of Civil Procedure 23(a) and (b)(3) comprised of current Ohio residents who purchased one of the specified Duets in Ohio primarily for personal, family, or household purposes and not for resale, and who bring legal claims for tortious breach of warranty, negligent design, and negligent failure to warn. Proof of damages is reserved for individual determination. In re Whirlpool Corp. Front-Loading Washer Prods. Liab. Litig., No. 1:08-WP-65000, 2010 WL 2756947, at *4 (N.D.Ohio July 12, 2010). We granted Whirlpool's request to pursue an interlocutory appeal of the class certification decision, Fed.R.Civ.P. 23(f), and we affirmed the district court's opinion and order. Glazer v. Whirlpool Corp., 678 F.3d 409, 421 (6th Cir.2012). We denied Whirlpool's petition for rehearing by the panel and for rehearing en banc. Whirlpool filed a petition for a writ of certiorari.

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The Supreme Court granted Whirlpool's petition, vacated our prior judgment, and remanded the case to this court for further consideration. Whirlpool Corp. v. Glazer, __ U.S. __, 133 S.Ct. 1722, 185 L.Ed.2d 782 (2013) (mem.). The Supreme Court's order— known as a grant, vacate, and remand order (GVR)— directed us to reconsider the appeal in light of Comcast Corp. v. Behrend, __ U.S. __, 133 S.Ct. 1426, 185 L.Ed.2d 515 (2013). See Lawrence v. Chater, 516 U.S. 163, 165-66, 116 S.Ct. 604, 133 L.Ed.2d 545 (1996) (per curiam). After reconsideration, and for the reasons set forth below, we AFFIRM the order of the district court certifying a liability class.


Before returning to the merits of this appeal, we pause briefly to address Whirlpool's motion requesting that the case be remanded so the district court may consider in the first instance whether Comcast Corp. affects the class certification decision. Contrary to Whirlpool's suggestion that the GVR order constitutes a merits determination in its favor, our law is clear that a GVR order does not necessarily imply that the Supreme Court has in mind a different result in the case, nor does it suggest that our prior decision was erroneous. See Communities for Equity v. Mich. High Sch. Athletic Ass'n, 459 F.3d 676, 680 (6th Cir.2006) (adhering to original decision). The GVR order is not equivalent to reversal on the merits, Tyler v. Cain, 533 U.S. 656, 666 n. 6, 121 S.Ct. 2478, 150 L.Ed.2d 632 (2001); Henry v. City of Rock Hill, 376 U.S. 776, 777, 84 S.Ct. 1042, 12 L.Ed.2d 79 (1964), nor is it " an invitation to reverse." Gonzalez v. Justices of the Mun. Court of Boston, 420 F.3d 5, 7 (1st Cir.2005). We must simply determine whether our original decision to affirm the class certification order was correct or whether Comcast Corp. compels a different resolution. See Communities for Equity, 459 F.3d at 680-81; Kenemore v. Roy, 690 F.3d 639, 642 (5th Cir.2012).

The cases Whirlpool cites in support of its motion do not persuade us to remand the case to the district court. In Clark v. Chrysler Corp., 80 Fed.Appx. 453, 454 (6th Cir.2003), the issue on remand from the Supreme Court was whether a punitive damages award violated the defendant's due process rights in light of State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 123 S.Ct. 1513, 155 L.Ed.2d 585 (2003). Whether to grant or deny a motion for remittitur is a discretionary decision for the district court to make and explain after that court has carefully reviewed the trial evidence to determine whether the jury verdict was excessive. See Sykes v. Anderson, 625 F.3d 294, 322 (6th Cir.2010). In that situation it was appropriate for this court to remand the case so that the district court could have the first opportunity to reconsider the damages award.

In United States v. Rapanos, 16 Fed.Appx. 345 (6th Cir.2001), a defendant was convicted of filling wetlands in violation of the Clean Water Act (CWA). After the Supreme Court decided that the Army Corps of Engineers exceeded its authority in promulgating a pertinent regulation under the CWA, Solid Waste Agency of N. Cook Cnty. v. United States Army Corps of Eng'rs, 531 U.S. 159, 121 S.Ct. 675, 148 L.Ed.2d 576 (2001), this court received a GVR order in Rapanos directing reconsideration of that case in light ofSolid Waste Agency. Rapanos v. United States, 533 U.S. 913, 121 S.Ct. 2518, 150 L.Ed.2d 691 (2001) (mem.). This court appropriately remanded the case to the district court to evaluate in the first instance whether Solid Waste Agency undermined the foundation of the criminal indictment. Rapanos, 16 Fed.Appx. 345.

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In Messer v. Curci, 881 F.2d 219, 220 (6th Cir.1989) (en banc), this court held that an " allegation of political patronage hiring, standing alone, does not state a claim for violation of 42 U.S.C. § 1983" and affirmed a judgment dismissing the complaint. The Supreme Court issued a GVR order, Messer v. Curci, 497 U.S. 1001, 110 S.Ct. 3233, 111 L.Ed.2d 745 (1990) (mem.), directing reconsideration in light of Rutan v. Republican Party of Ill., 497 U.S. 62, 110 S.Ct. 2729, 111 L.Ed.2d 52 (1990), which held that employment actions based on political affiliation or support impermissibly infringed the First Amendment rights of public employees. Because the Messer complaint had been dismissed erroneously, the court immediately remanded the case to the district court to permit the lawsuit to proceed. Messer v. Curci, 908 F.2d 103 (6th Cir.1990). Finally, United States v. Schmucker, 766 F.2d 1582, 1583 (6th Cir.1985), did not involve an interlocutory appeal of a class certification order, and Kappos v. Hyatt, __ U.S. __, 132 S.Ct. 1690, 182 L.Ed.2d 704 (2012), is distinguishable because that case concerned the procedure for introducing new evidence in district court when a party challenges a patent decision made by the Patent and Trademark Office.

In contrast to the cases cited by Whirlpool, the present GVR order requires us to consider only whether Comcast Corp. has any effect on our Rule 23 analysis affirming the district court's certification of a liability class. We undertake the task assigned to us, see Communities for Equity, 459 F.3d at 680, deny the motion to remand, see Addo v. Attorney Gen., 355 Fed.Appx. 672, 674-75 (3d Cir.2009) (denying party's motion to remand to district court after receipt of GVR order), and provide our comprehensive analysis of this case.


The named plaintiffs, Gina Glazer and Trina Allison, are Ohio residents. Whirlpool is a Delaware corporation with its principal place of business in Michigan.

Whirlpool began manufacturing Duets in 2002. The plaintiffs' causes of action rest on the central allegation that all of the Duets share a common design defect— the machines fail to clean properly their own mechanical components to eliminate soil and residue deposits known as " biofilm." The development of biofilm on mechanical parts in turn can lead to rapid growth of mold, mildew, and bacteria in places inside the machines that consumers cannot clean themselves.

Allison purchased a Whirlpool Duet HT® washing machine in 2005 and Glazer bought a Duet Sport® washing machine in 2006. Allison used high efficiency (HE) detergent in her washing machine, while Glazer used a reduced amount of regular detergent. Within six to eight months after their purchases, both plaintiffs noticed the smell of mold or mildew emanating from the machines and from laundry washed in the machines. Allison found mold growing on the sides of the detergent dispenser, and Glazer noticed mold growing on the rubber door seal. Although both plaintiffs allowed the machine doors to stand open as much as possible and also used ordinary household products to clean the parts of the machines they could reach, their efforts achieved only temporary relief from the pungent odors.

Allison contacted Whirlpool about the mold she found growing in the Duet. A company representative instructed her to use the washer's monthly cleaning cycle, add an...

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