Ferguson v. Electrolux Home Prods.
| Decision Date | 01 June 2020 |
| Docket Number | No. 15-cv-09882,15-cv-09882 |
| Parties | TERESA ELWARD, DENNIS KEESLER, LEASA BRITTENHAM, KATHY BECK, NATHANIEL BECK, ANGELIA EAST, SARAH LaVERGNE, TONY FITZGERALD, LAUREN FITZGERALD, GREGORY GRAY, BETHANY WILLIAMS, JOHN McLAUGHLIN, STACY CISCO, WILLIAM FERGUSON, and CHERYL FERGUSON, individually and on behalf of all others similarly situated, Plaintiffs, v. ELECTROLUX HOME PRODUCTS, INC., Defendant. |
| Court | U.S. District Court — Northern District of Illinois |
Hon. Martha M. Pacold
MEMORANDUM OPINION AND ORDERPlaintiffs Teresa Elward, Dennis Keesler, Leasa Brittenham, Kathy and Nathaniel Beck, Angelia East, Sarah LaVergne, Tony and Lauren Fitzgerald, Gregory Gray, Bethany Williams, John McLaughlin, Stacy Cisco, and William and Cheryl Ferguson (collectively, "Plaintiffs") have sued Defendant Electrolux Home Products, Inc. ("Electrolux"), alleging that they purchased dishwashers manufactured by Electrolux that unexpectedly overheated, causing fires and flooding. Plaintiffs bring various state law claims on behalf of themselves and others similarly situated, seeking a combination of declaratory, injunctive, and compensatory relief.
Plaintiffs move to certify eight classes, including two classes for each of four states (Illinois, Indiana, Ohio, and California). They assert claims arising from either the manifestation of the dishwasher defect and resulting property damage (the "State Manifestation Classes") or the loss in value for dishwashers that contain the defect, even though it has not manifested (the "State Non-Manifestation Classes"). In arguing that class certification is appropriate, Plaintiffs rely on certain expert testimony that Electrolux moves to exclude. In turn, Plaintiffs move to exclude certain of Electrolux's expert witness testimony. Oral arguments on the Daubert motions took place on May 21, 2019 and, on the motion for class certification, on August 1, 2019. The case was reassigned to this judge.
For the reasons below, the court grants Electrolux's motion to exclude Plaintiffs' expert Robert O'Shea [191]. The court denies Plaintiffs' motion to certify classes [172]. The court strikes the remaining Daubert motions [196] [197] [199] [201] as moot.
Electrolux is the world's second-largest appliance maker by units sold. (Consol. Am. Compl. ¶ 22, Dkt. 93.) It sells dishwashers under a variety of brand names, including under its own Electrolux brand and its Frigidaire brand. (Id. ¶¶ 2, 22.) Plaintiffs, who purport to represent proposed classes of consumers who have purchased or otherwise acquired these dishwashers, allege that Electrolux's dishwashers are "dangerously defective in that their electrical systems overheat and catch fire, burning holes through the dishwasher, causing flooding, or causing the entire dishwasher and surrounding area to ignite and burn." (Id. ¶ 2.)
I. The Dishwashers & Alleged Defect
In general, dishwashers designed for home use employ a heating element to heat the wash solution and dry the dishes. 1 The heating element is typically mounted with metal brackets above the bottom of the dishwasher tub, which can be made with plastic or stainless steel. Plaintiffs' lawsuit concerns Electrolux's plastic-tub dishwashers, which are sold primarily under the Frigidaire brand name. Electrolux sells approximately 1 million such dishwashers per year, and it has distributed over 14 million of this type of dishwasher since initially offering it into the marketplace. .
For these dishwashers, the heating element consists of an outer sheath and an inner coiled wire. Prior to 2012, the sheath was made of stainless steel 321. In 2012, Electrolux switched to incoloy 840 to meet new Underwriters Laboratory ("UL") safety standards.3 (Verma Decl. ¶ 7.) Inside the sheath, the coiled filament wire is surrounded by an insulating magnesium oxide powder. (Id. ¶ 6.) In the past, Electrolux used both square and circular heating elements, but in 2012 it switched to using only circular elements. (Id. ¶ 8.) Since December 2008, Zoppas Industries ("Zoppas"), a third-party heating-element manufacturer, has supplied Electrolux with its heating elements. (Id. ¶ 9.)
The plastic tub in Electrolux's dishwashers is made of polypropylene meeting the UL 94 standard rating of HB, which means that the plastic passes the UL 94 HB burn test. (Verma Decl. ¶ 11.) The heating element sits about one inch above the tub, "supported by two electrical terminals on one side and metal clips opposite the terminals." (Verma Decl. ¶ 5.)
Plaintiffs argue that since 2008, Electrolux's plastic-tub dishwashers have suffered from a "system" defect resulting from the combination of (1) the Zoppas heating elements, which they contend are defective in a manner that causes them to warp and bend, (2) the metal clips holding the heating elements in place, which they argue are "inadequately sized and strengthened" and insufficient in number, and (3) the plastic tubs, which they contend are too low-quality to resist melting when the heating element warps and touches the tub. See Pls.' Mem. Supp. Class Cert. at 12; see also id. at 3-4.
Plaintiffs propose, for each of the four states represented (Illinois, Indiana, California, and Ohio), two classes: a "Manifestation" class (for those whose dishwashers actually manifested the alleged defect in an incident of melting,flooding, or fire), and a "Non-Manifestation Class" (for consumers whose dishwashers contain the alleged latent defect although it has not manifested in any problems).4 Each of the State Manifestation and Non-Manifestation classes raises a variety of different claims for strict liability, negligence, fraud and deceptive trade practices, and breach of the implied warranty of merchantability.
The claims raised by Plaintiffs and the various classes have changed multiple times, from the filing of their Amended Complaint, to the filing of their motion for class certification, to the oral argument on their class-certification motion, when they provided a demonstrative exhibit ("Plaintiffs' Claims Chart") purporting to describe the claims that are certifiable as to each class.
Several of the claims alleged in Plaintiffs' Claims Chart are not supported by the allegations of the Amended Complaint. First, the Amended Complaint alleges breach of the implied warranty of merchantability (Count 1) on behalf of the State Non-Manifestation Classes5 only. Accordingly, to the extent Plaintiffs now seek to raise implied warranty of merchantability claims on behalf of the State Manifestation Classes, they cannot do so. (See Consol. Am. Compl. at 36.) Similarly, the Amended Complaint alleges strict products liability (Counts 2 & 3) and negligence (Counts 4 & 5) on behalf of only the State Manifestation Classes. Thus, Plaintiffs cannot assert these claims on behalf of the State Non-Manifestation Classes. (See id. at 38-43.) Furthermore, as to the Ohio classes, Plaintiffs' Claims Chart seeks to add claims for strict products liability, negligence, and violations of the Ohio Consumer Sales Practice Act ("OCSPA"). But Plaintiffs' strict products liability and negligence claims are only raised by representatives from the other state classes, not Ohio. Furthermore, there is no claim set out under the OCSPA. (See id.)
Conversely, Plaintiffs' Claims Chart makes certain concessions as to other claims. First, as to their negligence claims (Counts 3 & 4) for the California,Illinois, and Ohio classes, they purport to limit the Manifestation classes' recovery to damages to property other than the dishwasher itself.6 Additionally, they acknowledge that as to the Indiana classes, claims of design defect and failure to warn must be pursued under a negligence theory rather than a strict products liability theory. Accordingly, the court clarifies the claims raised by each putative class as described below.
Both Illinois classes raise claims for violation of the Illinois Consumer Fraud and Deceptive Business Practices Act ("ICFA"), 815 ILCS 505/1 et seq. (Count 6) and the Illinois Uniform Deceptive Trade Practices Act ("IUDTPA"), 815 ILCS 510/1 et seq. (Count 7), as well as for common-law fraudulent concealment (Count 18). Additionally, the Illinois Manifestation Class raises claims for strict liability for design defect (Count 2) and strict liability for failure to warn (Count 3). Finally, the Illinois Manifestation Class also raises claims for negligence (Count 4) and negligent failure to warn (Count 5), insofar as property damage beyond the dishwasher itself is shown. The Illinois Non-Manifestation Class raises a claim of...
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