UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF OHIO In re: WHIRLPOOL...

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF OHIO

In re: WHIRLPOOL CORP. FRONT- LOADING WASHER PRODUCTS LIABILITY LITIGATION

Gina Glazer v. Whirlpool Corporation

1:08-wp-65000 1:08-wp-65001

MDL No. 2001

Class Action

Judge: Christopher A. Boyko

WHIRLPOOL CORPORATION’S RENEWED MOTION

TO DECERTIFY THE OHIO CLASS

Case: 1:08-wp-65000-CAB Doc #: 472 Filed: 10/27/14 1 of 35. PageID #: 35797

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TABLE OF CONTENTS

Page

TABLE OFAUTHORITIES ........................................................................................................... ii

INTRODUCTION ...........................................................................................................................1

ARGUMENT ...................................................................................................................................2

I. THERE ARE NO COMMON QUESTIONS AND, EVEN IF THERE WERE, THOSE COMMON QUESTIONS HAVE NOT PREDOMINATED OVER INDIVIDUAL QUESTIONS ..................................................3

A. The Trial Has Established That Defect Is Not a Common Question .......................4

B. The Trial Evidence Does Not Generate a Common Answer to Whether the Washers Are Fit for Ordinary Use ......................................................7

C. Trial Made Clear That Proximate Cause Is Not a Common Question ...................................................................................................................8

D. The Trial Evidence Has Shown That Injury Is an Individual Question .................................................................................................................10

E. The Trial Evidence Has Confirmed That Whirlpool’s Affirmative Defenses Raise Individual Questions.....................................................................16

II. THE TRIAL HAS SHOWN PLAINTIFFS TO BE INADEQUATE AND ATYPICAL CLASS REPRESENTATIVES .....................................................................18

A. Plaintiffs Purchased Only Two of the 20 Models at Issue .....................................19

B. Plaintiffs Do Not Have the Same Injury As Most Class Members........................20

C. Plaintiffs Are Subject To Unique Defenses ...........................................................21

D. Plaintiffs’ Efforts To Manufacture Commonality Have Created Intra-Class Conflicts ..............................................................................................23

III. THE CLASS SHOULD BE DECERTIFIED BECAUSE IT IS FILLED WITH UNINJURED CLASS MEMBERS ........................................................................26

CONCLUSION ..............................................................................................................................27


ii

TABLE OF AUTHORITIES

Page

Cases

Amchem Prods., Inc. v. Windsor, 521 U.S. 591 (1997) ................................................................................................................ 24, 26

Binta B. ex rel. S.A. v. Gordon, 710 F.3d 608 (6th Cir. 2013) .......................................................................................................... 2

Briggs v. Anderson, 796 F.2d 1009 (8th Cir. 1986) ........................................................................................................ 2

Britenriker v. Mock, No. 3:08 CV 1890, 2009 WL 2392917 (N.D. Ohio July 31, 2009) .............................................. 24

Butler v. Mattel, Inc., No. CV 13-306 DSF (SSx), 2014 WL 764514 (C.D. Cal. Feb. 24, 2014) ................................... 11

Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138 (2013) .................................................................................................................. 26

Clark v. Experian Info. Solutions, Inc., Nos. Civ.A.8:00-1217-24, Civ.A.8:00-1218-24, Civ.A.8:00-1219-24, 2001 WL 1946329 (D.S.C. Mar. 19, 2001) ................................................ 25

Comcast Corp. v. Behrend, 133 S. Ct. 1426 (2013) .................................................................................................. 3, 10, 12, 14

Davis v. Cintas Corp., 717 F.3d 476 (6th Cir. 2013) ........................................................................................................ 12

Dieter v. Microsoft Corp., 436 F.3d 461 (4th Cir. 2006) ........................................................................................................ 20

Feinstein v. Firestone Tire & Rubber Co., 535 F. Supp. 595 (S.D.N.Y. 1982) ............................................................................................... 25

Forehand v. Fla. State Hosp. at Chattahoochee, 89 F.3d 1562 (11th Cir. 1996) ........................................................................................................ 2

Gen. Tel. Co. of Sw. v. Falcon, 457 US 147 (1982) .................................................................................................................... 2, 20

Gentek Bldg. Prods., Inc. v. Sherwin-Williams Co., No. 1:02CV00013, 2005 WL 6778678 (N.D. Ohio Feb. 22, 2005) ............................................. 11


iii

Grodzitsky v. Am. Honda Motor Co., No. 2:12-cv-01142-SVW-PLAx, 2014 WL 718431 (C.D. Cal. Feb. 19, 2014)................................................................................... 7

Gunnells v. Healthplan Servs., Inc., 348 F.3d 417 (4th Cir. 2003) ........................................................................................................ 18

Hale v. Enerco Grp., Inc., 288 F.R.D. 139 (N.D. Ohio 2012) ................................................................................................ 16

Hoffer v. Cooper Wiring Devices, Inc., No. 1:06CV763, 2007 WL 1725317 (N.D. Ohio June 13, 2007) ................................................. 11

In re Am. Med. Sys., Inc., 75 F.3d 1069 (6th Cir. 1996) .................................................................................................. 19, 20

In re Porsche Cars N. Am., Inc., 880 F. Supp. 2d 801 (S.D. Ohio 2012) ......................................................................................... 17

In re Rail Freight Fuel Surcharge Antitrust Litig., 725 F.3d 244 (D.C. Cir. 2013) ................................................................................................ 12, 13

In re Schering Plough Corp. ERISA Litig., 589 F.3d 585 (3d Cir. 2009).......................................................................................................... 21

In re Whirlpool Corp. Front-Loading Washer Prods. Liab. Litig., 722 F.3d 838 (6th Cir. 2013) ................................................................................................. passim

Kaczmarek v. Int’l Bus. Machs. Corp., 186 F.R.D. 307 (S.D.N.Y. 1999) .................................................................................................. 20

Krueger v. Wyeth, Inc., No. 03cv2496 JLS (AJB), 2008 WL 481956 (S.D. Cal. Feb. 19, 2008) ...................................... 25

Landen v. Electrolux Home Prods., Inc., No. CV 13-1033 DSF (SHx), 2014 WL 2980977 (C.D. Cal. July 1, 2014) ................................... 7

Lewis Tree Serv., Inc. v. Lucent Techs., Inc., 211 F.R.D. 228 (S.D.N.Y. 2002) .................................................................................................. 20

Major v. Ocean Spray Cranberries, Inc., No. 5:12-CV-03067 EJD, 2013 WL 2558125 (N.D. Cal. June 10, 2013) .................................... 20

Martinelli v. Petland, Inc., 274 F.R.D. 658 (D. Ariz. 2011) .................................................................................................... 11

McLaughlin v. Am. Tobacco Co., 522 F.3d 215 (2d Cir. 2008).......................................................................................................... 16


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Nafar v. Hollywood Tanning Sys., Inc., 339 F. App’x 216 (3d Cir. 2009) .................................................................................................. 25

O’Neil v. Simplicity, Inc., 574 F.3d 501 (8th Cir. 2009) ........................................................................................................ 11

Phillips v. Philip Morris Cos., No. 5:10CV1741, 2014 WL 809005 (N.D. Ohio Feb. 28, 2014) ........................................... 11, 16

Rega v. Nationwide Mut. Ins. Co., No. 1:11-CV-1822, 2012 WL 5207559 (N.D. Ohio Oct. 22, 2012) ................................. 21, 22, 23

Romberio v. Unumprovident Corp., 385 F. App’x 423 (6th Cir. 2009) ................................................................................................. 21

Savett v. Whirlpool Corp., No. 12 CV 310, 2012 WL 3780451 (N.D. Ohio Aug. 31, 2012).................................................... 7

Sprague v. Gen. Motors Corp., 133 F.3d 388 (6th Cir. 1998) .................................................................................................. 18, 19

Stepp v. Monsanto Research Corp., No. 3:91cv468, 2012 WL 604328 (S.D. Ohio Feb. 24, 2012) ........................................................ 2

Stout v. J.D. Byrider, 228 F.3d 709 (6th Cir. 2000) ...................................................................................... 19, 23, 24, 25

Summers v. Earth Island Inst., 555 U.S. 488 (2009) ...................................................................................................................... 26

Taylor v. Hous. Auth. of New Haven, 267 F.R.D. 36 (D. Conn. 2010)........................................................................................... 2, 25, 26

Temple v. Wean United, Inc., 364 N.E.2d 267 (Ohio 1977)........................................................................................................... 7

Thompson v. Am. Tobacco Co., 189 F.R.D. 544 (D. Minn. 1999)................................................................................................... 25

Thorn v. Jefferson-Pilot Life Ins. Co., 445 F.3d 311 (4th Cir. 2006) ........................................................................................................ 18

Thornton v. State Farm Mut. Auto Ins. Co., No. 1:06-CV-00018, 2006 WL 3359448 (N.D. Ohio Nov. 17, 2006) .......................................... 17

Tigbao v. QBE Fin. Inst. Risk Servs., Inc., No. SACV 13-177 JLS JCX, 2014 WL 5033219 (C.D. Cal. Sept. 22, 2014) ............................................................................. 25


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Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011) ........................................................................................................... passim

Wiener v. Dannon Co., 255 F.R.D. 658 (C.D. Cal. 2009) .................................................................................................. 20

Wu v. Pearson Educ. Inc., No. 09 Civ. 6557(KBF), 2012 WL 6681701 (S.D.N.Y. Dec. 21, 2012) ........................................ 3

Statutes, Rules, and Regulations

28 U.S.C. § 2072(b) ...................................................................................................................... 26

Fed. R Civ. P. 23 .................................................................................................................... passim

Fed. R. Civ. P. 23(a) ....................................................................................................................... 2

Fed. R. Civ. P. 23(a)(3) ................................................................................................. 2, 18, 20, 21

Fed. R. Civ. P. 23(a)(4) ....................................................................................................... 2, 19, 20

Fed. R. Civ. P. 23(b)(3)......................................................................................................... 1, 3, 12

Fed. R. Civ. P. 23(c)(1)(C) ............................................................................................................. 2

Ohio Rev. Code § 2305.10(A) ...................................................................................................... 17

Other Authorities

1 McLaughlin on Class Actions § 5:43 (10th ed. 2013) ............................................................... 16


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INTRODUCTION

In litigating class certification before trial, the parties made predictions about whether

common questions would predominate over individual ones and whether Gina Glazer and Trina

Allison would be typical and adequate class representatives. This Court and the Sixth Circuit

agreed with Plaintiffs’ predictions on those matters and approved certification of a class of Ohio

buyers of 20 Whirlpool Duet front-loading washing machines (the “Washers” or the “Duets”).

See In re Whirlpool Corp. Front-Loading Washer Prods. Liab. Litig., 722 F.3d 838, 854-55 (6th

Cir. 2013) (“Glazer II”); Op. & Order, Sept. 2, 2014 (“Class Modification Order”), at 39, ECF

No. 366; Class Certification Order, July 10, 2010, ECF No. 141. But three weeks of trial has

revealed that Plaintiffs’ predictions were wrong.

Individual issues have pervaded the trial, whether they be Ms. Glazer’s Washer care

practices, the timeliness of Ms. Allison’s claims, the experiences of individual out-of-state

plaintiffs, the design, feature, and instruction differences among the Duets, or the failure of

Plaintiffs’ experts to account for the diverse circumstances of individual Duet buyers. Indeed, the

trial has shown that none of the central issues in this case—neither defect, nor causation, nor

injury, nor Whirlpool’s defenses—present a common question capable of generating a “common

answer” for each class member “in one stroke.” Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541,

2551 (2011). Individual questions, not common ones, thus predominate. And that fact makes

continued class litigation improper under Federal Rule of Civil Procedure 23(b)(3).

The trial has also demonstrated that Ms. Glazer and Ms. Allison are inadequate and

atypical class representatives. The two Duet models they purchased are not representative of all

18 other models at issue. They do not have the same injury as the many class members who

never experienced moldy odors linked to a Duet. They are subject to unique statute-of-limitations

and comparative-negligence defenses. And their (unsuccessful) efforts to manufacture


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commonality have created serious intra-class conflicts. Without an adequate and typical class

representative, class litigation is forbidden under Rule 23(a)(3)-(4).

Because Rule 23 does not permit continued litigation of this case as a class action,

Whirlpool respectfully asks that the Court exercise its authority under Rule 23(c)(1)(C) to

decertify the class.

ARGUMENT

“An order that grants or denies class certification may be altered or amended before final

judgment.” Fed. R. Civ. P. 23(c)(1)(C). The Sixth Circuit has interpreted this rule to require

lower courts to reassess their class rulings as the case develops and to ensure that Rule 23

remains met. See Binta B. ex rel. S.A. v. Gordon, 710 F.3d 608, 618 (6th Cir. 2013); see also

Gen. Tel. Co. of Sw. v. Falcon, 457 US 147, 160 (1982) (certification “is inherently tentative”;

the court’s power “to modify it in the light of subsequent developments” enhances “the

usefulness of the class-action device” and ensures “actual, not presumed, conformance with Rule

23(a)”). Indeed, numerous decisions have decertified classes after a trial has shown that a case

does not satisfy the requirements of Rule 23. See, e.g., Forehand v. Fla. State Hosp. at

Chattahoochee, 89 F.3d 1562, 1566-67 (11th Cir. 1996) (upholding district court’s

decertification of class after trial, despite decertification occurring ten years after case was filed);

Briggs v. Anderson, 796 F.2d 1009, 1017 (8th Cir. 1986) (upholding trial court’s decertification

of two subclasses after trial and before decision on the merits); Taylor v. Hous. Auth. of New

Haven, 267 F.R.D. 36, 62 (D. Conn. 2010) (decertifying class because “evidence at trial does not

support the continued viability of a certified class”), aff’d, 645 F.3d 152 (2d Cir. 2011).

To survive a motion for decertification, Plaintiffs retain the burden of proving that Rule

23 “continue[s] to be met.” Stepp v. Monsanto Research Corp., No. 3:91cv468, 2012 WL

604328, at *3 & n.3 (S.D. Ohio Feb. 24, 2012). A request to decertify “requires a court to ask the


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same questions as on the original motion.” Wu v. Pearson Educ. Inc., No. 09 Civ. 6557(KBF),

2012 WL 6681701, at *5 (S.D.N.Y. Dec. 21, 2012). Plaintiffs must “affirmatively demonstrate”

their compliance with each Rule 23 prerequisite and do so with “evidentiary proof.” Comcast

Corp. v. Behrend, 133 S. Ct. 1426, 1432 (2013) (quoting Dukes, 131 S. Ct. at 2551).

Plaintiffs did not carry that burden. The trial has left no doubt that that this case is

unsuited for class litigation. Individual issues predominate over common ones. The named

Plaintiffs are inadequate and atypical class representatives. And Plaintiffs failed to establish that

the great majority of class members have any cognizable injury.

I. THERE ARE NO COMMON QUESTIONS AND, EVEN IF THERE WERE, THOSE COMMON QUESTIONS HAVE NOT PREDOMINATED OVER INDIVIDUAL QUESTIONS

To maintain class certification, the Court must “find[] that the questions of law or fact

common to class members predominate over any questions affecting only individual members.”

Fed. R. Civ. P. 23(b)(3). In light of the way the parties have tried this case, such a finding is not

possible. As the Supreme Court has explained, a question is not “common” unless it is “capable

of classwide resolution—which means that determination of its truth or falsity will resolve an

issue that is central to the validity of each one of the claims in one stroke.” Dukes, 131 S. Ct. at

2551. “What matters to class certification” is “not the raising of common ‘questions’” but “the

capacity of a classwide proceeding to generate common answers apt to drive the resolution of the

litigation.” Id. (citation omitted). As explained below, the trial has borne out that none of the

questions in this case is common to all class members under the standard articulated in Dukes.

And even if there were a common question, the trial has conclusively shown that individual, not

common, questions have predominated.

The evidence presented has highlighted the many differences in design, features, and

instructions among the 20 Duet washer models at issue. (See Def.’s Exs. DD11B, DD12B,


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attached as Exs. A and B, respectively); Trial Tr. at 564:2-19, 580:25–581:15, 2951:18–2952:15,

2952:23–2961:2, 2962:17–2973:14, 2980:13–2983:21, 2985:9–2988:14, 2988:21–2990:11.)

Hundreds of pages of the trial transcript are devoted to testimony about the experiences of Ms.

Allison and Ms. Glazer, including their unique use and care practices. (See, e.g., id. at 812:14–

838:25, 842:13–933:22, 1657:15–1767:24.) Adding to that buyer-specific focus, Plaintiffs called

four additional, out-of-state washer buyers to testify about their individual experiences with

different Duet washers. (See id. at 658:22–725:11, 739:17–782:3, 837:25–987:16, 1601:9–

1650:10.) Questioning of experts has repeatedly returned to the unique experiences of Ms.

Allison, Ms. Glazer, and other individual buyers. (See id. at 433:11-21, 434:18-22, 442:18–

444:7, 1905:3–1906:12, 2957:21–2961:4, 2962:17–2963:6, 2967:10–2969:12, 3029:1-18,

3043:11–3045:18, 3047:13–3064:17, 3224:18–3225:21.) And Plaintiffs’ experts, in particular,

have faced lengthy examinations regarding the many ways in which their opinions fail to account

for the diverse circumstances and experiences of individual buyers. (See id. at 432:23–434:7,

438:7-17, 447:17–448:10; 449:17–450:4, 534:9–535:8, 1914:8–1915:4.)

In short, the trial has highlighted the ways in which individual issues matter in this case—

both for liability and damages—making class treatment inappropriate.

A. The Trial Has Established That Defect Is Not a Common Question

In previously concluding that defect was a common question, both this Court and the

Sixth Circuit relied on Plaintiffs’ representations that the evidence would show that the

differences among the Duet models were immaterial, allowing the defect question to “generate

common answers that are likely to drive resolution of the lawsuit.” Glazer II, 722 F.3d at 852;

Class Modification Order at 39. The actual trial evidence has belied those representations.

Plaintiffs’ sole engineering expert, Dr. R. Gary Wilson, contends that the Washers are

uniformly defective and negligently designed because they contain two components—the tubs


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and crosspieces—that have “cavities,” which “cannot be rinsed out so there is an accumulation

of materials in these areas that supports the growth of mold and bacteria.” (Trial Tr. at 233:9-15.)

He further took the position at trial that “for a machine not to be defective, either the machine

has to clean itself, or it has to be easy for the customer to clean” (id. at 554:21–555:6), such that

biofilm in the machine is “managed” to prevent it from creating odors in the washer or on

laundry (id. at 425:22–428:7). The evidence proves that many of the design and feature

differences among the 20 Duet models at issue are material in assessing whether a particular

model is defective according to Plaintiffs’ defect theory.

For instance, while the tub for Access washers has a 10-degree backward tilt and

perpendicular cavity ribs, the tub for Horizon washers has no backward tilt and sloped cavity

ribs. (Id. at 1304:19–1306:1, 2980:15–2981:7.) Those differences in design could lead the jury to

conclude that the Access tub was defective but the Horizon tub was not because the tilt and rib

shape for the Horizon tub discouraged water pooling, which could lead to excessive

accumulation of biofilm. Similarly, the trial evidence shows that the Access washers contain one

of two crosspieces, while the Horizon washers use a third crosspiece, which has no crevices and

is smooth. (Id. at 1375:13-20, 2980:15–2981:7, 3207:8–3208:4; Pls.’ Ex. 1127 (photographs of

crosspieces).) Other than saying that the Horizon crosspiece can accumulate biofilm (which is

irrelevant because the trial evidence shows that all washer machines can accumulate biofilm),

Dr. Wilson never explained how the smooth Horizon crosspiece is actually defective under his

theory. Indeed, the Horizon crosspiece is similar to the smooth Alpha crosspiece, which

Plaintiffs admit is not defective. (Trial Tr. at 343:24–345:2.)

The trial evidence also showed that some, but not all, of the Duets had a maintenance or

Clean Washer cycle that was easy to use and effective in managing biofilm. (Id. at 1310:13-24,


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1384:19–1385:9, 888:21-25, 979:4-16, 980:24–981:15, 1642:17–1644:2, 2965:12–2966:20,

2970:8–2971:11, 2971:22–2973:14; Pls.’ Ex. 21 (“A monthly run of the cleaning cycle by the

customer will keep the machine clean.”); cf. Trial Tr. at 2202:1-4 (“[I]f bleach were used from

the very beginning of using the washer, would it help prevent buildup? [Dr. Yang]: Yes.”).)

Similar evidence regarding the steam feature and sanitary cycle found in certain models went

unrebutted. (Trial Tr. at 542:16–546:3, 1385:10–1387:13, 1793:4–1794:7, 2959:14–2960:21,

2983:4-21.) Given Dr. Wilson’s theory that a non-defective machine is one that keeps itself clean

or enables the user to easily clean it, the jury may well conclude that a Duet washer with the

maintenance or Clean Washer cycle, the steam feature, or the sanitary cycle was not defective

but that a Duet washer without any of those features was defective. The same is true with respect

to variations in use and care instructions across the models at issue. Instructions initially did not

require HE detergent or recommend leaving the door open, running a monthly cleaning cycle, or

periodically cleaning the door seal, but later they did. (Id. at 2952:23–2954:15.)

In addition, Dr. Wilson’s admission at trial that a washer is not defective if it “manages”

biofilm so as not to create washer or laundry odors (id. at 425:22–428:7) means that the defect

question cannot be answered on a classwide basis. It is undisputed that at least half of Washer

buyers never had any odor problems. And the only competent trial evidence on this point shows

that actual odor complaints were much lower, in the five percent range. (Id. at 3004:10-21.)

Accordingly, under Dr. Wilson’s own theory, the many class members who did not experience

machine or laundry odor did not receive a defective product because their machine adequately

managed the biofilm. Yet only class-member-specific inquiries could reveal which class

members experienced odor and which did not.

Put simply, the defect question cannot be answered “in one stroke” for all class members.


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Dukes, 131 S. Ct. at 2551. Indeed, that fact is implicit in the Court’s correct ruling that Plaintiffs

have assumed the burden of proving that each of the 20 Duet models is defective. That ruling

acknowledges the possibility that some models could be found defective while others might not.

In other words, the defect question might not produce common answers. Under Dukes, therefore,

defect simply is not a common question because “[d]issimilarities” in the Duets’ design and

features “impede the generation of common answers.” Dukes, 131 S. Ct. at 2551; see also

Landen v. Electrolux Home Prods., Inc., No. CV 13-1033 DSF (SHx), 2014 WL 2980977, at *1

(C.D. Cal. July 1, 2014) (denying certification where the plaintiff “tries to ignore the various

differences among the designs” that go straight to whether the washers are defective); Grodzitsky

v. Am. Honda Motor Co., No. 2:12-cv-01142-SVW-PLAx, 2014 WL 718431, at *6 (C.D. Cal.

Feb. 19, 2014) (defect was not common question where components of defective product

differed among vehicles in the class).

B. The Trial Evidence Does Not Generate a Common Answer to Whether the Washers Are Fit for Ordinary Use

Plaintiffs’ claim for tortious breach of implied warranty requires proof that the product is

not “of good and merchantable quality, fit and safe for . . . (its) ordinary intended use.” Temple v.

Wean United, Inc., 364 N.E.2d 267, 270 (Ohio 1977) (citation omitted). “[T]he ordinary purpose

of a washing machine is to wash and clean dirty clothes.” Savett v. Whirlpool Corp., No. 12 CV

310, 2012 WL 3780451, at *11 (N.D. Ohio Aug. 31, 2012). The trial evidence shows that

merchantability or fitness is inherently individualized.

To be sure, Plaintiffs put on evidence that some Duet buyers have experienced odors in

their machines or their laundry. (Trial Tr. at 678:15-20, 812:14-23, 939:2-8, 1604:11-16,

1605:17-25, 1671:5–1672:13.) But even if Plaintiffs’ had linked those experiences to the alleged

defects—which they have not (see, e.g., id. 486:20–487:7)—Plaintiffs still did not show that all


8

class members had similar experiences. To the contrary, even the class representatives

themselves had vastly different experiences—Ms. Allison’s machine had no odor (only her

clothes did), while Ms. Glazer’s machine did have an odor. (See, e.g., id. at 436:20 –437:2,

523:15-18, 3043:11–3044:20.) Further, the out-of-state plaintiffs all had different experiences—

one had machine odors, while others had only laundry odors. (Compare id. at 939:5-6, with id. at

765:1-5.) Some machines were “pristine” while others were dirty. (Pls.’ Ex. 1123 at 16, 18, 23,

27, 46-47, 54-55.) More broadly, there is overwhelming evidence that most Duet buyers never

experienced any sort of odor issue and were satisfied with their washers. (Trial Tr. at 2579:14 –

2580:7, 2581:10-13, 2004:10-21.) And while Plaintiffs’ experts theorized that biofilm re-deposits

on laundry could produce bad odors (id. at 277:25–278:9, 494:11-21), they never offered any

evidence that all class members would experience that issue. Rather, Dr. Yang explained that re-

deposition would occur only if the machine itself had an odor. (Id. at 2079:3-12.)

The question whether a given Washer fails to clean laundry is individualized. The

question does not have a “common answer” for all class members that can be generated “in one

stroke.” Merchantability and fitness, therefore, are not common questions in this case.

C. Trial Made Clear That Proximate Cause Is Not a Common Question

In this case, the Sixth Circuit held that “[t]he claims for tortious breach of warranty and

negligent design rise or fall on whether a design defect proximately causes mold or mildew to

develop in the Duets.” Glazer II, 722 F.3d at 853. But, based on the “[t]he record” before it from

the original 2010 class certification ruling, the court of appeals determined that the question

would not raise individual issues. Id. at 854-55. Before trial, this Court adhered to the Sixth

Circuit’s determination. (Class Modification Order at 40.) The trial evidence, however, has

illustrated that the Plaintiffs’ assertion that proximate cause case could be tried on a classwide

basis, was inaccurate. Plaintiffs have not proven that the Duets cause excessive biofilm buildup,


9

especially if the owners follow Whirlpool’s instructions from the outset of use.1 Rather, the trial

evidence has shown that variations in owner use and care practices have a material impact on

whether a Washer develops mold or mildew in material quantities. (Compare Trial Tr. 1707:13–

1708:3, and id. at 1708:15–1709:16, with id. at 1386:18–1387:22.)

Dr. Wilson admitted that use and care determines, at least in part, how much mold

develops in a particular washer. (Trial Tr. at 433:14-21.) Indeed, he agreed that the “only thing”

that can explain why Ms. Glazer’s Duet washer had significant buildup while out-of-state

plaintiff Bicknell’s Duet washer was so clean is differences in user care. (Id. at 533:16-19, 535:1-

8.) Other evidence established that recommended maintenance steps—such as running a clean

washer cycle with bleach or Affresh—prevent significant buildup or significantly reduced

biofilm accumulation. (Id. at 1380:2-3, 1381:6–1382:22.) Moreover, the only Duet owners who

claimed odors emanating from their Washers—Ms. Glazer and Ms. Gardner—also admitted that

they did not follow the use and care instructions for their machines. (Id. at 954:23–956:4,

1707:13–1708:3, 1709:1-16, 1714:14–1716:15.)

The evidence has further established that the cause of laundry malodors is highly

individualized. Dr. Wilson withdrew his opinion that biofilm buildup can cause odors in laundry.

(Id. at 486:20–487:7). Mr. Hardaway testified that he has never observed a case in which odor in

clothing was connected to biofilm buildup in the machine. (Id. at 1195:16-24.) He explained that

laundry odors are caused by a re-deposition of soils and bacteria from the laundry itself, which

can occur due to a number of factors unrelated to the Washers’ design, including type and

amount of laundry detergent, whether the owner uses fabric softener, wash temperature, and

1 It is undisputed that all washing machines contain some amount of mold, bacteria, and biofilm (Trial Tr. at 315:9-12, 316:14-16, 406:13-23, 425:22–426:12), so the issue is whether the Duets’ alleged defect causes excessive biofilm, mold, and bacteria to build up.


10

water quality. (Id. at 1232:10–1233:9, 1234:5-7, 1236:11–1241:11, 1242:23–1243:4, 1247:18–

1248:5, 1249:1–1250:6.) Dr. Yang confirmed this, testifying that laundry odors may occur

because “the clothing in the laundry after washing, may still carry bacteria.” (Id. at 2073:15-17.)

He also testified that whether laundry odors are caused by biofilm “really depends on if there’s

odor to start with.” (Id. at 2079:3-12.) Under Dr. Yang’s explanation, Plaintiffs cannot prove that

the alleged defect causes laundry odors without first analyzing whether a given Duet has an odor.

In short, the trial has established that the alleged defect is not the only potential proximate

cause of mold in Duets. And the other potential causes—most notably, use and care practices—

vary by class member, as the testimony of individual owners has confirmed. As a result,

proximate causation is not susceptible to a common answer.

D. The Trial Evidence Has Shown That Injury Is an Individual Question

Citing Comcast, the Sixth Circuit explained in this case that “liability issues relating to

injury must be susceptible of proof on a classwide basis to meet the predominance standard” of

Rule 23. Glazer II, 722 F.3d at 860. In denying decertification before trial, this Court considered

itself bound by the Sixth Circuit’s further ruling that classwide proof of injury would come from

Plaintiffs’ “premium price” point-of-sale theory that “all class members have experienced injury

as a result of the decreased value of the product purchased.” (Class Modification Order at 43

(quoting Glazer II, 722 F.3d at 856).) But the trial evidence does not support that theory.

To begin with, the evidence establishes that the Duets purchased by many class members

did not have a “decreased value.” As already noted, the trial showed that much of the class did

not experience the Washer and laundry odors that, under Dr. Wilson’s theory, are the

manifestation of the alleged defects. (Def.’s Ex. 771; Trial Tr. at 2579:23-25, 2581:10-13,

3004:10-21.) Even if Plaintiffs’ claims that 35 to 50 percent of Duet buyers had odor problems

were correct (and they are not), that would leave 50 to 65 percent of buyers without any odor


11

problems, including people who have owned their Washers for as many as 13 years and may no

longer own it for reasons unrelated to the alleged defect and “mold problems.” Those Duet

buyers received exactly the same odor-free experience they would have received had they bought

an Alpha model without the alleged defects. As a result, those buyers’ Duets cannot be assigned

a “decreased value.” See O’Neil v. Simplicity, Inc., 574 F.3d 501, 504 (8th Cir. 2009).

Indeed, Ohio law confirms that satisfied buyers are uninjured. See, e.g., Phillips v. Philip

Morris Cos., No. 5:10CV1741, 2014 WL 809005, at *8 (N.D. Ohio Feb. 28, 2014) (“Ohio courts

have repeatedly rejected warranty claims where the plaintiff suffered no injury because the

consumer received what was warranted.”); Hoffer v. Cooper Wiring Devices, Inc., No.

1:06CV763, 2007 WL 1725317, at *7-8 (N.D. Ohio June 13, 2007) (Boyko, J.) (dismissing tort

claims for lack of a cognizable injury, as economic loss is not recoverable under Ohio law unless

the alleged defect manifests itself in the product); Gentek Bldg. Prods., Inc. v. Sherwin-Williams

Co., No. 1:02CV00013, 2005 WL 6778678, at *11 (N.D. Ohio Feb. 22, 2005) (buyer whose

product has not manifested defect has no “present injury compensable in . . . tort,” even “if the

product in question contains a latent defect that has manifested in other, identical products”).

The disparities in whether class members were injured require examination of class-

member-specific evidence and thus preclude class certification. See, e.g., Butler v. Mattel, Inc.,

No. CV 13-306 DSF (SSx), 2014 WL 764514, at *1 (C.D. Cal. Feb. 24, 2014) (certification

denied because “[t]here is no evidence that every Sleeper developed notable levels of mold and

ample evidence that most of them did not,” and the “majority of the proposed class . . . was in no

way affected by the alleged increased propensity of the Sleeper to grow mold”); Martinelli v.

Petland, Inc., 274 F.R.D. 658, 666 (D. Ariz. 2011) (certification denied because “purchasers who

received high-quality dogs would have suffered no injury,” and so only “inquiry into the origin


12

and pedigree of each puppy” could determine if class member was injured under premium price).

Recognizing that the majority of class members did not experience mold or odors,

Plaintiffs have supported their point-of-sale injury theory with expert testimony from Sarah

Butler about a survey of 148 Ohio residents who indicated that they were interested in a front-

loading washer but who are not class members. (Trial Tr. at 1828:2-4, 1837:17-20.) The survey

tried to measure the average discount a reasonable customer would want in order to choose a

front-loading washer that was known to require certain mold-related maintenance tasks (i.e.,

leaving the door open, cleaning the door seal, and running a monthly cleaning cycle), relative to

what the same reasonable customer would have paid for a hypothetical front-loading washer that

did not require those tasks. (Id. at 1838:22–1840:9, 1880:1–1881:7.) Ms. Butler opined that “the

results of my study showed that consumers view the potential for mold and mold-related

maintenance negatively, and that to purchase a machine that required all the maintenance steps

as described, consumers would want an average of $419 discount.” (Id. at 1838:23–1839:2.)

According to Ms. Butler, the $419 “shows the harm” to class members. (Id. at 1868:13-22.)

The U.S. Supreme Court has made clear that lower courts must take a “hard look” at

expert models purporting to show common injury (In re Rail Freight Fuel Surcharge Antitrust

Litig., 725 F.3d 244, 255 (D.C. Cir. 2013)), and may not just accept “any method of

measurement . . . so long as it can be applied classwide” (Comcast, 133 S. Ct. at 1433). Models

that are “speculative” and “arbitrary” “reduce Rule 23(b)(3)’s predominance requirement to a

nullity” and cannot be used. Comcast, 133 S. Ct. at 1433. Specifically, statistical evidence should

be disregarded if it includes “discrepancies” that “undermine[] a conclusion that the statistics are

sufficient to demonstrate that there is a common, class-wide [injury] against the putative class

members.” Davis v. Cintas Corp., 717 F.3d 476, 487 (6th Cir. 2013) (citation omitted). A model


13

is insufficient if it “detects injury where none could exist.” Rail Freight, 725 F.3d at 252.

Under these demanding standards, Ms. Butler’s survey has multiple fatal flaws that

prevent it from establishing that injury is a common question. First, the survey has no connection

to the class claims. It purports to measure what a prospective buyer would pay to avoid certain

mold-related maintenance. But Plaintiffs’ claims for negligent design and tortious breach of

warranty are not about whether class members were improperly asked to perform maintenance

steps. Those claims instead “rise or fall on whether a design defect proximately causes mold or

mildew to develop in the Duets.” Glazer II, 722 F.3d at 853. The only possible connection

Plaintiffs’ injury theory had to this lawsuit was their failure-to-warn claim, but that claim has

been dismissed.

In an attempt to save their classwide harm model, Plaintiffs’ experts at trial argued that

the biofilm-related use and care acts as a “proxy” for the alleged harm to all class members. 2

(Trial Tr. at 2222:8-18, 2439:11-20, 2456:16-17.) But Whirlpool has not identified any case in

which allegedly undisclosed maintenance serves as a “proxy” for injury caused by the purchase

of a defective product. And the trial evidence shows that biofilm-related use and care cannot act

as a “proxy” for class-wide harm. In economic terms, a “proxy” is something observable that has

a high correlation to something unobservable that you want to measure; if there is no correlation

between the two, then the observable thing cannot be a proxy for the unobservable. (Id. at

2807:16–2808:17.) However, in this case, biofilm-related use and care has no correlation to, and

therefore cannot be used as a proxy for, the alleged defect. (Id. at 2808:25–2810:18.)

For instance, the Alpha models, which Plaintiffs claim are not defective because they

2 Plaintiffs’ damages experts, Drs. Van Audenrode and Gans, provided two additional damages models: “price-elevation” and the lifetime cost of Affresh damages theories. (Trial Tr. at 2213:13–2214:5, 2426:23–2437:20.) But both theories rely exclusively on the “undisclosed maintenance” theory. (See, e.g., id. at 2213:13–2214:25, 2439:3–2440:3, 2449:3-25, 2450:17–2451:18.)


14

have a smooth-back tub and smooth crosspiece, require the same biofilm-related use and care as

the class models. (Id. at 3017:2–3019:1.) Ms. Butler’s survey did not say “anything about the tub

or the brackets” that are the allegedly defective design elements. (Id. at 1900:6-10; see also id. at

1903:1-4.) Indeed, when asked if the survey would produce the same results for a washing

machine without the “cavity” defect alleged by Plaintiffs but with mold-related maintenance

instructions (i.e., the Alpha models), Ms. Butler said: “That’s correct.” (Id. at 1902:11-22.)3 And

the evidence shows that all high-efficiency washers—front-loading and top-loading—require the

same biofilm-related use and care as the Washers at issue. (Id. at 2946:4-14, 2950:20-24, 3021:2-

8, 3022:7–3026:13, 3027:16-23.) Some traditional top-loading washers also have similar

instructions. (Id. at 2940:13–2941:12, 2941:17–2942:7, Def.’s Exs. 251, 733.) Indeed, Plaintiffs’

experts themselves admitted that their own front-loading washers require biofilm-related

maintenance, which were not disclosed prior to sale. (Id. at 2327:3-10, 2328:25–2329:3,

2329:16-19, 2464:11–2465:9.)

Thus, contrary to the Supreme Court’s holding in Comcast, Ms. Butler’s survey does not

“measure only those damages attributable to [the certified liability] theory.” 133 S. Ct. at 1433. It

instead “identifies damages that are not the result of the wrong” being litigated on behalf of the

class. Id. at 1434. The survey provides no basis to conclude that injury is a common question.

See id. at 1433-34 (damages model untied to class litigation theories could not show that

damages were common); Glazer II, 722 F.3d at 860 (after Comcast, “class must be able to show

that their damages stemmed from the defendant’s actions that created the legal liability”).

Second, even if the $419 discount derived from Ms. Butler’s survey could be a “proxy”

3 See also id. at 1901:9–1902:1 (“the results would remain the same” between two machines that “have exactly the same maintenance requirements because of the possibility of mold” but one is alleged to be defective).


15

for injury on Plaintiffs’ negligent design and tortious breach of warranty claims (it cannot), that

possibility still would not eliminate the need for individual injury inquiries. The premise behind

using the $419 discount as a proxy for classwide injury is that class member informed about the

mold-related maintenance would have required a discount on their Duet washers. (See, e.g., Trial

Tr. at 1839:20-24, 1847:22–1848:3, 1879:9-19.) But the trial evidence contradicts that premise:

some Duet buyers understood and expected the need for mold-related maintenance when they

purchased, yet they still paid an undiscounted price for their Duet.

For instance, both Ms. Glazer and Ms. Bicknell testified that, at the time they bought

their Duets, they already intended to always leave the door open because it was common-sense

maintenance. (Id. at 1644:3-24, 1669:3-11.) Other trial evidence established that many

consumers simply are not averse to performing mold-related maintenance on their washers. (See,

e.g., id. at 2564:19–2567:1.) For example, Dr. Itamar Simonson—Whirlpool’s consumer

behavior and survey expert—conducted a “mall-intercept study” using the standard “test” versus

“control” method to determine whether disclosure of mold-related maintenance instructions have

any impact on purchase intent. (Id. at 2563:2-18, 2565:19–2566:5.) Dr. Simonson found

“[a]bsolutely no difference” between the test and control groups,” meaning the test group—those

who received a brochure with information about the potential for mold and need for mold-related

maintenance—were “just as likely . . . to be interested in this washer” as the control group who

did not receive the instructions. (Id. at 2566:6-18.)

The premise of Plaintiffs’ proposed proxy for injury simply does not hold for those Duet

owners who either knew about the relevant maintenance steps at the time of purchase or would

not have cared about them. (Id. at 2740:23 –2743:1, 2748:3–2749:9, 2751:1-7, 2758:4-20.) Their

knowledge, expectations, behavior, and preferences completely rebut the notion that they would


16

have demanded a discount to avoid mold-related maintenance. As a result, it cannot be inferred

from the survey results that such owners had any injury at all. And only individual inquiries

could identify those owners. See Hale v. Enerco Grp., Inc., 288 F.R.D. 139, 151 (N.D. Ohio

2012) (“the resolution of whether Defendants’ failure to warn proximately caused the injuries

alleged requires individual inquiries, as well, because it is not at all certain that a potential class

member, if warned about the [alleged defect], would have declined to purchase an Enerco

heater”). Plaintiffs’ $419 point-of-sale discount theory does not make injury a common question.

E. The Trial Evidence Has Confirmed That Whirlpool’s Affirmative Defenses Raise Individual Questions

Whirlpool’s affirmative defenses in this case include statute of limitations and

comparative negligence. The evidence received at trial has shown that those defenses turn

entirely on the unique circumstances of individual class members. And while the Court observed

that the need for individual inquiries into affirmative defenses does not, by itself, prevent the

predominance of common questions (Class Modification Order at 42), the presence of individual

defenses “counsels in favor” of denying certification. McLaughlin v. Am. Tobacco Co., 522 F.3d

215, 234 (2d Cir. 2008) (predominance not met where there were “numerous issues . . . not

susceptible to generalized proof,” including statute of limitations); see also Phillips v. Philip

Morris Cos. Inc., 298 F.R.D. 355, 367 n.18 (N.D. Ohio 2014) (“While, standing alone, these

individual defenses may be insufficient to deny class certification, the prospect of even more

individual inquiries reinforces the Court’s determination that class certification would be

unwieldy.”). Indeed, “courts have long recognized that the evaluation of whether common

questions predominate should consider whether resolution of a defendant’s affirmative defenses,

including statutes of limitation [and] comparative fault . . . , may turn on facts specific to each

class member.” 1 McLaughlin on Class Actions § 5:43 (10th ed. 2013) (citing cases).


17

Whirlpool’s statute-of-limitations defense illustrates how the defense is not susceptible to

a common answer for the entire class. The relevant two-year limitations period begins running

“when the injury or loss to person or property occurs,” Ohio Rev. Code § 2305.10(A), which in a

defective product case starts from “the point at which the alleged defect manifests,” In re

Porsche Cars N. Am., Inc., 880 F. Supp. 2d 801, 866 (S.D. Ohio 2012).4 The alleged defect here

manifests when a Duet owner detects the odors associated with the alleged defect. (Trial Tr. at

426:15–427:1.) Different class members, who bought at different times and had different odor

experiences, obviously would detect odors (if any) at different times. Indeed, the trial evidence

shows that Ms. Allison was complaining about bad odors in her Duet in February and March

2006, which is more than two years before she filed suit. (Id. at 815:22–816:14, 860:13-23,

877:10-880:1.) By contrast, Ms. Glazer noticed the odor problems associated with her Duet in

around October 2006 (about six months after her April 2006 purchase date), less than two years

before she filed suit. (Id. at 1665:20-23, 1671:5-24.)

And Plaintiffs’ assertion that fraudulent concealment should toll the limitations period

does not convert the limitations question into a common one. There is no evidence at all that

Whirlpool communicated any kind of uniform post-sale “trick or contrivance” to each and every

class member. See Thornton v. State Farm Mut. Auto Ins. Co., No. 1:06-CV-00018, 2006 WL

3359448, at *6 (N.D. Ohio Nov. 17, 2006) (“[c]oncealment by mere silence is not enough”). To

the contrary, the trial showed that some Duet buyers never had any post-sale communications

with Whirlpool. (Trial Tr. at 957:7-14, 969:15–970:12.) And others, like Ms. Glazer and the

Cloers, chose to file suit immediately after talking to Whirlpool. (Id. at 755:2-8, 1735:19-24,

1742:22–1744:3.) In short, Whirlpool’s statute-of-limitations defense as proven at trial reveals

44 If this Court accepts Plaintiffs’ theory that harm occurs at the point of sale, then the statute begins to run for all class members at purchase rather than at manifestation.


18

that common questions do not predominate. See Thorn v. Jefferson-Pilot Life Ins. Co., 445 F.3d

311, 320-29 (4th Cir. 2006) (upholding denial of class certification based in part on individual

statute-of-limitations defenses).

Whirlpool’s comparative fault defense is similarly individualized. That defense turns on

whether a Duet owner properly cared for her Washer and whether any negligent care proximately

caused the owner’s mold and odor problems. Whether an owner proximately caused her own

Washer problems is not a common question because it depends on her unique circumstances.

That much is clear from Ms. Glazer’s experiences. Ms. Glazer did not use the required HE

detergent (Trial Tr. at 1707:13–1708:3), never ran a Clean Washer cycle at all, much less with

bleach or Affresh (id. at 1709:5-16; 1733:16-25), and did not clean her door seal with bleach or

otherwise (id. at 1712:5-16). The case for comparative fault as to Ms. Glazer is very different

(and much stronger) than would be the case for comparative fault as to a class member who

followed all of the applicable use and care instructions. The comparative fault defense thus also

weighs against the predominance of common questions. See Gunnells v. Healthplan Servs., Inc.,

348 F.3d 417, 438 (4th Cir. 2003) (comparative negligence required individual inquiries

contributing to denial of class certification).

II. THE TRIAL HAS SHOWN PLAINTIFFS TO BE INADEQUATE AND ATYPICAL CLASS REPRESENTATIVES

The Court should decertify the class because the trial evidence has shown that Plaintiffs

do not meet Rule 23(a)’s typicality and adequacy requirements. To maintain class certification,

Plaintiffs’ “claims or defenses” must remain “typical of the claims or defenses of the class.” Fed.

R. Civ. P. 23(a)(3). Typicality ensures that “class members’ claims are ‘fairly encompassed by

the named plaintiffs’ claims.’” Glazer II, 722 F.3d at 852 (quoting Sprague v. Gen. Motors

Corp., 133 F.3d 388, 399 (6th Cir. 1998)). As the Sixth Circuit has held, the “premise of the


19

typicality requirement” is that “as goes the claim of the named plaintiff, so go the claims of the

class,” and typicality is lacking if “[t]hat premise is not valid.” Sprague, 133 F.3d at 399.

Plaintiffs also must continue to “fairly and adequately protect the interests of the class.”

Fed. R. Civ. P. 23(a)(4). Adequacy “brings into play . . . any conflicts of interest” between class

representatives and class members. Glazer II, 722 F.3d at 853. The adequacy requirement is not

met if “class members have interests that are . . . antagonistic to one another” or if the class

representatives cannot “vigorously prosecute the interests of the class.” Stout v. J.D. Byrider, 228

F.3d 709, 717 (6th Cir. 2000); see In re Am. Med. Sys., Inc., 75 F.3d 1069, 1083 (6th Cir. 1996)

(“[n]o class should be certified where the interests of the members are antagonistic”).

Plaintiffs do not satisfy the typicality and adequacy requirements.

A. Plaintiffs Purchased Only Two of the 20 Models at Issue

Plaintiffs lack typicality because they purchased only two of the 20 models at issue in the

trial. This fact is critical because, as the trial evidence demonstrates, there are substantial

differences among the 20 models that are not captured by Plaintiffs’ individual claims. See

Sprague, 133 F.3d at 399 (typicality missing if “[a] named plaintiff who proved his own claim

would not necessarily have proved anybody else’s claim”).

For example, Plaintiffs purchased washers that did not have a steam feature, unlike other

class members. For Plaintiffs to prove their individual claims, it is irrelevant whether the steam

feature effectively manages biofilm accumulation or odors. As a result, all class members’

claims are not “fairly encompassed by the named plaintiffs’ claims.” Glazer II, 722 F.3d at 852.

And Plaintiffs proffered no evidence that the steam feature fails to effectively manage biofilm

accumulation. Dr. Wilson did not conduct any tests on the steam feature that might support his

assertion that the steam models remain defective (Trial Tr. at 306:12-14, 559:16-19, 581:20-22),

even though the only one he inspected was “squeaky clean” (id. at 542:16–546:3).


20

Many courts have held that Plaintiffs fail to satisfy typicality with regard to products that

they did not purchase and, thus, deny certification. See, e.g., Am. Med. Sys., 75 F.3d at 1082

(typicality not satisfied because “each plaintiff used a different model”); Dieter v. Microsoft

Corp., 436 F.3d 461, 468 (4th Cir. 2006) (typicality not satisfied because plaintiffs and putative

class members “purchased different products,” and “new and different proof” was required to

establish putative class members’ claims); accord Major v. Ocean Spray Cranberries, Inc., No.

5:12-CV-03067 EJD, 2013 WL 2558125, at *3-5 (N.D. Cal. June 10, 2013); Wiener v. Dannon

Co., 255 F.R.D. 658, 665-67 (C.D. Cal. 2009); Lewis Tree Serv., Inc. v. Lucent Techs., Inc., 211

F.R.D. 228, 232-34 (S.D.N.Y. 2002); Kaczmarek v. Int’l Bus. Machs. Corp., 186 F.R.D. 307,

313 (S.D.N.Y. 1999). As in those cases, the class here should be decertified because Plaintiffs

did not purchase all 20 models and differences among those models are not fairly encompassed

by Plaintiffs’ individual claims.

B. Plaintiffs Do Not Have the Same Injury As Most Class Members

Plaintiffs also lack typicality because they did not suffer the “same injury” as most class

members. See Falcon, 457 U.S. at 157 (typicality requires that class representative have

“suffered the same injury” as the class). Whirlpool recognizes the Sixth Circuit’s pre-trial

conclusion that Plaintiffs satisfied Rule 23(a)(3) and (a)(4) because Plaintiffs “alleged and

argued below that all Duet owners suffered injury immediately upon purchase of a Duet due to

the design defect in, and the decreased value of, the product itself.” Glazer II, 722 F.3d at 857-58

(emphasis added). But Plaintiffs were required to “affirmatively demonstrate” that this allegation

was “in fact” true, Dukes, 131 S. Ct. at 2551, and the trial reveals that Plaintiffs’ pre-trial

prediction was wrong.

Plaintiffs alleged that their Washers developed excessive biofilm and odors, but the

evidence at trial established that the Washers bought by the majority of the class did not have


21

those problems. (Trial Tr. at 2581:10-13, 2995:10–2997:1, 3004:10-23, 3005:5–3006:21,

3014:5–3016:14; Def.’s Exs. 637, 757.) And while Plaintiffs testified that their machines are

worthless and that they would not have bought their Washers had they known of the potential for

odors, the actual evidence proved that most class members are satisfied with their washers,

would buy another front-loader, and are not bothered by washer care. Id. at 2565:17–2567:1,

2579:14-7, 2581:10-13, 2582:13–2583:6, 2583:13-25; Def.’s Ex. 771.) Without any evidence of

a classwide injury showing that all Washers were worth less due to the alleged defect regardless

of mold or odors, Plaintiffs cannot prove that they suffered the “same injury” as the majority of

the class. They, thus, are atypical and inadequate class representatives.

C. Plaintiffs Are Subject To Unique Defenses

The class also should be decertified because Plaintiffs are subject to unique defenses. “It

is well established that a proposed class representative is not ‘typical’ under Rule 23(a)(3) if ‘the

representative is subject to a unique defense that is likely to become a major focus of the

litigation.’” In re Schering Plough Corp. ERISA Litig., 589 F.3d 585, 598 (3d Cir. 2009); accord

Romberio v. Unumprovident Corp., 385 F. App’x 423, 431 (6th Cir. 2009) (typicality is lacking

“where there are defenses unique to the individual claims of the class members”). And

“[b]ecause the class claims rise or fall with the claims of the class representative, courts must

insure that the defendant does not have unique defenses to the claims of the class representative”

that could “impose such a disadvantage on the class.” Rega v. Nationwide Mut. Ins. Co., No.

1:11-CV-1822, 2012 WL 5207559, at *6 (N.D. Ohio Oct. 22, 2012).

Here, there is no need to speculate whether Plaintiffs are subject to unique defenses that

are “likely to become a major focus of the litigation.” Schering Plough, 589 F.3d at 598. Two

unique defenses have been a major focus of the trial.


22

Statute of limitations. Ms. Allison is subject to the unique defense that she failed to

comply with statute of limitations.5 She purchased her Duet Washer on October 13, 2005. (Trial

Tr. at 804:7-13, 830:6-11; Stipulations of Facts ¶ 9, ECF No. 376.) Ms. Allison called Whirlpool

in February 2006 to complain about her odor problem. (Trial Tr. at 815:22–816:14, 860:13-23;

Stipulations of Facts ¶ 9; Pls.’s Ex. 478 ¶ 65 (Plaintiffs’ Class Complaint alleges that “Plaintiff

Allison called Whirlpool to complain in or about February 2006.”).) By March 2006, Ms. Allison

also wrote Consumer Reports “to complain about foul odors” in her Washer. (Trial Tr. at 877:10-

880:1; Allison’s 1st Resp. to Interrog. No. 2, attached as Ex. C (“Plaintiff further states that also

within a few months after she purchased the Washing Machine, she sent an email to Consumer

Reports to complain about the foul odors from her Machine.”) Ms. Allison’s claims thus arose by

at least March 2006 and are outside the two-year statute of limitations.

While Ms. Allison staved off a directed verdict by invoking fraudulent-concealment

tolling, the jury still could reject that argument and determine that the statute of limitations bars

her claims. Because the jury could easily rule against Ms. Allison on grounds that are unique to

her, she is not a typical class representative. See Rega, 2012 WL 5207559, at *6.

Comparative negligence. The class representatives are atypical because they are subject

to a unique defense of comparative negligence. The trial testimony makes clear that Ms. Glazer

did not use HE detergent, did not run the Clean Washer cycle with bleach, and did not wipe the

door seal with bleach, despite being repeatedly told to do so. (Trial Tr. at 1667:25–1668:14,

1705:3–1706:6, 1707:18–1708:3, 1711:17–1712:9, 1762:15–1763:11, 1763:8-9, 1709:5-16,

1712:6-16, 1728:6-17.) The evidence has also established that Ms. Glazer knew that she was

supposed to use HE detergent in her washer but chose not to do so. (Id. at 1668:3-20, 1691:5-7.)

5 If the Court accepts Plaintiffs’ point-of-sale injury theory, then Ms. Glazer’s claims are barred by the statute of limitations as well.


23

And Ms. Allison did not leave the door open and may not have regularly used Affresh, as she

claimed. (Id. at 868:11-13, 873:7-19, 875:9-17, 3047:23–3050:25.) Dr. Wilson admitted that use

and care determines, at least in part, how much mold develops in a particular washer. (Id. at

433:14-21.) Indeed, he agreed that the “only thing” that can explain why Ms. Glazer’s Duet

washer had significant buildup while out-of-state plaintiff Bicknell’s Duet washer was so clean is

differences in user care. (Id. at 533:16-19, 535:1-8.) Based on this evidence, the jury may well

find that Ms. Glazer’s and Ms. Allison’s problems with moldy odors were due to their own

negligence, and that finding cannot be applied to the entire class. This unique defense renders

Ms. Glazer and Ms. Allison atypical. See Rega, 2012 WL 5207559, at *6.

D. Plaintiffs’ Efforts To Manufacture Commonality Have Created Intra-Class Conflicts

Finally, the class should be decertified for lack of adequate representation because the

class is teeming with “antagonistic” interests. See Stout, 228 F.3d at 717. There is no question

that there are differences among the 20 models and the instructions that class members received

and that those differences affect the strength of class members’ claims. For example, the

evidence at trial has made clear that the Clean Washer cycle and steam feature play a vital role in

managing biofilm. (Trial Tr. at 1384:19–1387:24, 2965:18-25, 2966:16-20, 2969:22–2970:11,

2971:22–2973:14.) As a result, class members whose models lacked those features have an

interest in not being part of the same class as purchasers of models that have those features.

Similarly, the evidence demonstrated that Whirlpool gained knowledge over time—

beginning in 2004—that some Duet owners had experienced biofilm accumulations and

malodors. (Id. at 1015:5-24, 1026:19–1027:12.) Because Plaintiffs’ negligent design claim

depends on Whirlpool’s state of mind, class members who purchased their Washers after

Whirlpool allegedly gained such knowledge (i.e., in 2004) have an interest in not being part of


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the same class as owners who purchased their models before Whirlpool acquired such

knowledge. See Britenriker v. Mock, No. 3:08 CV 1890, 2009 WL 2392917, at *2 (N.D. Ohio

July 31, 2009) (“The existence of a duty [for a negligence claim] depends on the foreseeability of

the injury,” which “is usually dependent on defendant’s knowledge.”).

Rather than acknowledge these antagonistic intra-class divisions, Plaintiffs decided to

lump the 20 models together and assume the heavy burden of proving that all 20 models were

defective, thereby allowing the class judgment to depend on the attributes of the Duet model best

able to combat excessive biofilm accumulation. (See Class Certification Order at 6 n.3.) That

decision sold out the interests of class members who bought other models and may have had

relatively stronger claims, in hopes of a larger class size and a greater recovery. Plaintiffs also

chose to pursue this lawsuit on behalf of all owners, and not just those who experienced mold

and odors, thereby assuming a far more difficult burden of proving injury. Doing so sold out the

interests of those class members who actually had “mold problems.”

Plaintiffs, thus, failed to “vigorously prosecute the interests” of all class members,

proving themselves inadequate class representatives. See Stout, 228 F.3d at 717; see also

Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 626 (1997) (holding that named parties lacked

adequacy because they “sought to act on behalf of a single giant class rather than on behalf of

discrete subclasses,” and “[i]n significant respects, the interests of those within the single class

are not aligned”).

In addition, in order to manufacture commonality, Plaintiffs disclaimed health and safety

claims on behalf of the class. (See Stip. Concerning Personal Injury Claims ¶¶ 1-2, ECF No. 50;

see also Pls.’ Opp’n to Whirlpool’s Mot. for Summ. J. at 10 n.7, ECF No. 329 (explaining that

“this was not a case about safety or danger.”).) But Plaintiffs apparently believe that “bacteria


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and fungus in the Duets can lead to respiratory infections and other health problems.” (Pls.’ Mot.

to Reconsider In Limine Ruling with Respect to Health Risks & Offer of Proof at 1, ECF No.

450.) If that is true, there could be class members who suffered health injuries but cannot recover

for those injuries in this suit and would be precluded from pursuing claims based on those

injuries in the future. See Taylor v. Sturgell, 553 U.S. 880, 894 (2008) (“Representative suits

with preclusive effect on nonparties include properly conducted class actions”).

Adequacy is missing when class representatives “purchas[e]” commonality “at the price

of presenting putative class members with significant risks of being told later that they had

impermissibly split a single cause of action.” Feinstein v. Firestone Tire & Rubber Co., 535 F.

Supp. 595, 606 (S.D.N.Y. 1982). For this reason, numerous federal courts have held that such

“claim splitting constitutes a compelling reason to deny class certification.” Krueger v. Wyeth,

Inc., No. 03cv2496 JLS (AJB), 2008 WL 481956, at *3 (S.D. Cal. Feb. 19, 2008) (denying

certification); accord Nafar v. Hollywood Tanning Sys., Inc., 339 F. App’x 216, 224-25 (3d Cir.

2009) (vacating certification for failure to consider whether claim splitting made plaintiffs

inadequate); Clark v. Experian Info. Solutions, Inc., Nos. Civ.A.8:00-1217-24, Civ.A.8:00-1218-

24, Civ.A.8:00-1219-24, 2001 WL 1946329, at *3-4 (D.S.C. Mar. 19, 2001); Thompson v. Am.

Tobacco Co., 189 F.R.D. 544, 550-51 (D. Minn. 1999). Plaintiffs’ decision to split the claims of

class members in an attempt to manufacture a certifiable class is further evidence that they did

not “vigorously prosecute the interests of the class.” Stout, 228 F.3d at 717; see also Tigbao v.

QBE Fin. Inst. Risk Servs., Inc., No. SACV 13-177 JLS JCX, 2014 WL 5033219, at *2 n.3 (C.D.

Cal. Sept. 22, 2014) (in denying certification, noting that it is “difficult to imagine how Plaintiff

could adequately represent the interests of the class” when she seeks to preclude the class from

pursuing a remedy to which its members are entitled).


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In short, because the trial has revealed that Plaintiffs are atypical and inadequate class

representatives, the class should be decertified. See Taylor, 267 F.R.D. at 62 (decertifying class

because “evidence at trial does not support the continued viability of a certified class”).

III. THE CLASS SHOULD BE DECERTIFIED BECAUSE IT IS FILLED WITH UNINJURED CLASS MEMBERS

The Supreme Court has repeatedly explained that Rule 23 cannot be used to alter the

nature of the parties’ claims or defenses. The “Rules Enabling Act forbids interpreting Rule 23 to

‘abridge, enlarge or modify any substantive right.’” Dukes, 131 S. Ct. at 2561 (quoting 28 U.S.C.

§ 2072(b)); accord Amchem Prods., 521 U.S. at 612-13. And “Rule 23’s requirements must be

interpreted in keeping with Article III constraints.” Amchem, 521 U.S. at 612-613. “[T]he

requirement of injury in fact is a hard floor of Article III jurisdiction that cannot be removed.”

Summers v. Earth Island Inst., 555 U.S. 488, 497 (2009).

Courts should not be able to vault over these requirements by certifying a sweeping class

full of uninjured persons merely because the named plaintiffs allege that the products they

purchased are defective. Buyers whose products function perfectly lack Article III standing to

sue in their own right. Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138, 1147 (2013). And their

claims fail on the merits under Ohio law. (See Argument, Part I.D., supra.) Being swept into a

class action cannot change those facts under Dukes and Amchem.

A suit should not be allowed to proceed as a class action unless the plaintiffs have shown

that all (or at least the vast majority of) class members have suffered an actual injury. Here, as

the trial evidence proves, most class members have not experienced moldy odors and therefore

not been injured. (See, e.g., Trial Tr. at 2579:23-25, 2581:10-13, 3004:10-21.) Accordingly, the

class should be decertified.


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CONCLUSION

For all of these reasons, the Court should decertify the Ohio class.

Dated: October 27, 2014 Respectfully submitted,

s/Michael T. Williams Michael T. Williams Galen D. Bellamy Joel S. Neckers Theresa R. Wardon Wheeler Trigg O’Donnell LLP 370 Seventeenth Street, Suite 4500 Denver, Colorado 80202 Telephone: (303) 244-1800 Facsimile: (303) 244-1879 Email: [email protected] [email protected] [email protected] [email protected] and James T. Irvin, III Nelson Mullins Riley & Scarborough, LLP 1320 Main Street, Suite 1700 Columbia, South Carolina 29201 Telephone: (803) 255-9450 Facsimile: (803) 255-9057 Email: [email protected] Robert H. Brunson Nelson Mullins Riley & Scarborough, LLP 151 Meeting Street, Sixth Floor Charleston, South Carolina 29401-2239 Telephone: (843) 534-4226 Facsimile: (843) 722-8700 Email: [email protected]


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and

F. Daniel Balmert (0013809) Anthony J. O’Malley (0017506) Vorys, Sater, Seymour and Pease LLP 2100 One Cleveland Center 1375 East Ninth Street Cleveland, Ohio 44114-1724 Telephone: (216) 479-6159 Facsimile: (216) 937-3735 Email: [email protected] [email protected] and Philip S. Beck (147168) Rebecca Weinstein Bacon (6257492) Bartlit Beck Herman Palenchar & Scott LLP 54 West Hubbard Street, Suite 300 Chicago, IL 60654 Telephone: (312) 494-4400 Facsimile: (312) 494-4440 Email: [email protected] [email protected] Eric R. Olson Alison G. Wheeler Bartlit Beck Herman Palenchar & Scott LLP 1899 Wynkoop Street, 8th Floor Denver, CO 80202 Telephone: (303) 592-3186 Facsimile: (303) 592-3140 Email: [email protected] [email protected] Attorneys for Defendant Whirlpool Corporation


CERTIFICATE OF SERVICE (CM/ECF)

I hereby certify that on October 27, 2014, a copy of the foregoing Whirlpool

Corporation’s Renewed Motion to Decertify the Ohio Class was filed electronically. Notice

of this filing will be sent by operation of the Court’s electronic filing system to all parties

indicated on the electronic filing receipt. All other parties will be served by regular U.S. Mail.

Parties may access this filing through the Court’s system.

s/ Michael T. Williams One of the Attorneys for Defendant Whirlpool Corporation


UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF OHIO In re: WHIRLPOOL...

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