Glazer v. Whirlpool Corp. (In re Whirlpool Corp. Front–Loading Washer Prods. Liab. Litig.)

• Decision Date: 18 June 2012
• Docket Number: No. 10–4188.,10–4188.
• Citation: 678 F.3d 409,82 Fed.R.Serv.3d 478
• Parties: In re WHIRLPOOL CORPORATION FRONT–LOADING WASHER PRODUCTS LIABILITY LITIGATION. Gina Glazer, Individually and on behalf of all others similarly situated; Trina Allison, Individually and on behalf of all others similarly situated, Plaintiffs–Appellees, v. Whirlpool Corporation, Defendant–Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

678 F.3d 409

82 Fed.R.Serv.3d 478

In re WHIRLPOOL CORPORATION FRONT–LOADING WASHER PRODUCTS LIABILITY LITIGATION.Gina Glazer, Individually and on behalf of all others similarly situated; Trina Allison, Individually and on behalf of all others similarly situated, Plaintiffs–Appellees,

v.Whirlpool Corporation, Defendant–Appellant.

No. 10–4188.

United States Court of Appeals, Sixth Circuit.

Argued: Jan. 12, 2012.

Decided and Filed: May 3, 2012.

Rehearing and Rehearing En Banc^* Denied June 18, 2012.

ARGUED: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. ON BRIEF: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: KENNEDY, MARTIN, and STRANCH, Circuit Judges.

OPINION

JANE B. STRANCH, Circuit Judge.

Whirlpool Corporation brings this interlocutory appeal of the district court's decision to certify an Ohio plaintiff liability class under Federal Rule of Civil Procedure 23(a) and (b)(3). The case involves multi-district litigation concerning alleged design defects in Whirlpool's Duet®, Duet HT®, Duet Sport®, and Duet Sport HT® front-load washing machines (“the Duets”). ¹ Named plaintiffs Gina Glazer and Trina Allison alleged on behalf of the class that the Duets do not prevent or eliminate accumulating residue, which leads to the growth of mold and mildew in the machines, ruined laundry, and malodorous homes.

As certified, the liability class is 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. Because the district court did not abuse its discretion in certifying the Ohio plaintiff liability class, we AFFIRM.

I. BACKGROUND

The named plaintiffs are Ohio residents. In 2005 Trina Allison purchased a Whirlpool Duet HT® washing machine. In 2006 Gina Glazer bought a Duet Sport® washing machine. 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, the 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 problem. A company representative told her to use the washer's monthly cleaning cycle, add an Affresh™ tablet to that cleaning cycle, and manually clean under the rubber door seal. Allison followed this advice, but when the problem persisted, she placed a service call. The technician who examined the washing machine advised Allison to leave the door open between laundry cycles to let the machine air-dry.

Glazer also complained to Whirlpool. A company representative advised her to switch to HE detergent and Glazer did so. Whirlpool's Use & Care Guide recommended adding bleach to the washer's cleaning cycle, but Glazer did not utilize the cleaning cycle or use bleach to clean her washing machine.

Allison and Glazer continued to experience a mold problem. Neither of them knew at the time of purchase that a Duet washer could develop mold or mildew inside the machine. They allege that, if this information had been disclosed to them, their purchase decisions would have been affected.

Whirlpool began selling the Duet® and Duet HT® front-load washing machines in 2002. These washers are built on the “Access” platform and are nearly identical, although certain models have functional or aesthetic differences. In 2006, Whirlpool began selling the smaller-capacity Duet Sport® and Duet Sport HT® front-load washing machines, which are built on the “Horizon” platform. These machines are also nearly identical, although some models have functional or aesthetic differences. The “Access” and “Horizon” platforms are nearly identical to each other. The two differences are that the “Access” platform is slightly larger than the “Horizon” and the “Access” is tilted a few degrees from the horizontal axis, while the “Horizon” is not.

In contrast to a top-load washing machine, a front-load washer contains a wash basket within a tub that rotates on a horizontal axis to create a tumbling mechanical wash action instead of the agitation characteristic of top-load machines. A front-load washing machine offers the consumer greater water and energy savings than a top-load machine because it needs less energy to heat water, it maintains lower temperatures during the wash, and the “tumbling” mechanical motion is more energy efficient than the “spinning” of a top-load machine. Front-load washing machines are designed for use with HE detergent. While all washing machines have the potential to develop some mold or mildew after a period of use, front-load machines promote mold or mildew more readily due to lower water levels, high moisture, and reduced ventilation.

In support of their motion for class certification, plaintiffs produced the report of an expert who opined that the common design defect in the Duets is their failure to clean or rinse their own components to remove residue consisting of dried suds, fabric softener, soil, lint, body oils, skin flakes, and hair. Bacteria and fungi feed on the residue, and their excretions produce offensive odors. Plaintiffs allege that the Duets fail to clean the back of the tub that holds the clothes basket, the aluminum bracket used to attach the clothes basket to the tub, the sump area, the pump strainer and drain hose, the door gasket area, the air vent duct, and the detergent dispenser duct.

Plaintiffs' evidence shows that Whirlpool knew the design of its Access and Horizon platforms contributed to residue buildup resulting in rapid fungal and bacterial growth. As early as September 2003, Whirlpool began receiving two to three customer complaints each day about the problem. When Whirlpool representatives instructed consumers to lift up the rubber door gaskets on their machines, the common findings were deposits of water, detergent, and softener, along with mold or mildew. Service call reports confirmed problems around the rubber door gaskets, as well as residue deposits and black mold inside the drain hoses. Whirlpool also knew that numerous consumers complained of breathing difficulties after repair technicians scrubbed the Duets in their homes, releasing mold spores to the air.

In 2004 Whirlpool formed an internal team to analyze the problems and formulate a plan. In gathering information about the complaints, Whirlpool learned that the mold problem was not restricted to certain models or certain markets. Whirlpool also knew that mold growth could occur before the Duets were two to four years old, that traditional household cleaners were not effective treatments, and that consumer laundry habits and use of non-HE detergent might exacerbate the problem, but did not cause it. Whirlpool contemplated whether it should issue a warning to consumers about the mold problem. To avoid alarming consumers with words like “mold,” “mildew,” “fungi,” and “bacteria,” Whirlpool adopted the term “biofilm” in its public statements about mold complaints.

Later in 2004, Whirlpool engineers discussed the need to redesign the tub on the “Horizon” platform because soil and water pooling served as the nucleation site for mold and bacterial growth. Chemical analysis Whirlpool conducted showed that the composition of biofilm found in the “Horizon” and “Access” platforms was identical. Engineers determined that the “Access” platform's webbed tub structure was extremely prone to water and soil deposits, and the aluminum basket cross-bar was extremely susceptible to corrosion from biofilm. Whirlpool found a number of design factors contributing to corrosion, including insufficient draining of water at the end of a cycle and water flowing backward after draining through the non-return valve between the tub and the drain pump. The company made certain design changes to later generations of Duets.

By 2005, Whirlpool unveiled a special cleaning cycle in the Duets, but the company was aware that the new cycle would not remove all residue deposits. Engineers remained concerned whether the cleaning cycle would be effective to control odor and whether the use of bleach in the cleaning cycle would increase corrosion of aluminum parts. By March 2006 Whirlpool acknowledged that consumers might notice black mold growing on the bellows or inside the detergent dispenser, and that laundry would smell musty if the machine was “heavily infected.”

By late 2006, having received over 1.3 million calls at its customer care centers and having completed thousands of service calls nationwide, Whirlpool internally acknowledged its legal exposure, noting that it had already settled a class action concerning its Calypso machines, and that Maytag, another of Whirlpool's brands, had settled a class action concerning the Neptune washer.

At this point, Whirlpool decided to formulate a new cleaning product for all front-load washing machines, regardless of make or model....