Gina Glazer and Trina Allison initiated a class action lawsuit against Whirlpool Corporation on behalf of Ohio consumers, claiming that defects in certain front-loading washing machines allow mold and mildew growth, causing damage to laundry and unpleasant odors in homes. The case, along with similar litigation against Whirlpool, was consolidated into multi-district litigation overseen by the Northern District of Ohio. The district court certified a liability class under Federal Rules of Civil Procedure 23 (a) and (b)(3), comprising current Ohio residents who purchased specific models of the washing machines for personal use, with claims based on tortious breach of warranty, negligent design, and failure to warn, while leaving proof of damages for individual determination. Whirlpool sought an interlocutory appeal of the class certification, which was granted, and the Sixth Circuit affirmed the district court's decision. After Whirlpool's unsuccessful petition for rehearing and a subsequent petition for a writ of certiorari to the Supreme Court, the Supreme Court granted the petition, vacated the prior judgment, and remanded for further consideration in light of a relevant case. Upon reconsideration, the Sixth Circuit affirmed the district court's class certification order.
Whirlpool’s motion to remand the case for the district court to consider the impact of Comcast Corp. on class certification has been addressed. The court clarifies that a GVR (grant, vacate, remand) order does not indicate a merits decision in Whirlpool’s favor or imply that prior rulings were erroneous. Instead, it emphasizes the need to evaluate whether the original decision on class certification stands or if Comcast Corp. necessitates a different outcome. Previous cases cited by Whirlpool do not warrant remanding this case. For instance, in Clark v. Chrysler Corp., remand was justified for the district court to assess punitive damages after Supreme Court guidance. Similarly, in United States v. Rapanos, the court remanded for reevaluation based on a Supreme Court ruling affecting the case's foundation. In Messer v. Curci, the court remanded due to an erroneous dismissal following a relevant Supreme Court decision that changed the legal landscape. Other cited cases, such as United States v. Schmucker and Kappos v. Hyatt, are deemed irrelevant or distinguishable from the current appeal regarding class certification.
The GVR order mandates an assessment of Comcast Corp.'s impact on the Rule 23 analysis regarding the district court's certification of a liability class, leading to the denial of a remand motion. Named plaintiffs Gina Glazer and Trina Allison, both Ohio residents, allege that Whirlpool's Duet washing machines, manufactured since 2002, share a common design defect that leads to improper cleaning and the buildup of biofilm, resulting in mold, mildew, and bacteria growth in inaccessible areas of the machines.
Allison purchased a Duet HT® in 2005, while Glazer bought a Duet Sport® in 2006. Both plaintiffs experienced mold-related issues within six to eight months of purchase, despite their efforts to maintain the machines. After contacting Whirlpool for assistance, they received recommendations that did not resolve the problem. The plaintiffs assert that had they known about the potential for mold growth at the time of purchase, their buying decisions would have differed.
Evidence for class certification indicates that the Duet® and Duet HT® models are nearly identical in engineering, built on the “Access” platform, while the Duet Sport® models are constructed on the “Horizon” platform, which is slightly smaller and differently tilted. Most differences between models are aesthetic, and all front-loading machines are intended for use with high-efficiency detergent.
Front-loading washing machines, due to lower water levels, higher moisture retention, and reduced ventilation, are more prone to mold and mildew compared to other types. Expert witnesses for the plaintiffs, including former Whirlpool Director Dr. R. Gary Wilson and microbiologist Dr. Chin S. Yang, identified a design defect in the Duets that prevents them from effectively cleaning their components, allowing soil residues to foster fungal and bacterial growth, leading to unpleasant odors. Dr. Wilson noted that critical areas of the machines, such as the tub back, pump strainer, door gasket, and detergent dispenser, fail to self-clean.
Whirlpool was aware of the mold issue, receiving consumer complaints as early as September 2003, with reports of mold found in rubber door gaskets and residues inside the machines. Service technicians confirmed these findings and noted health complaints from consumers after service work that disturbed mold spores. In 2004, Whirlpool established a team to address the mold problem, discovering that the issue affected multiple models and could arise within two to four years of use. They found that traditional cleaning methods were ineffective and that consumer habits could exacerbate, but not cause, mold growth.
Whirlpool's Lead Engineer, Anthony Hardaway, expressed concern that the design of their products inherently supports mold and bacterial proliferation under typical laundry conditions. He suggested a shift in focus from eradication to management of mold levels. Whirlpool opted to use the term "biofilm" in public communications to mitigate consumer alarm over mold issues but ultimately failed to adequately warn the public about the risks associated with their products. Discussions within the company led to considerations for redesigning specific components of the washing machines to reduce mold and bacteria growth, particularly addressing issues with water and soil pooling in the tub designs.
Design flaws in Duet washing machines, such as inadequate drainage at the end of wash cycles and reverse water flow through the non-return valve, led to corrosion issues. Laboratory tests indicated that biofilm composition was the same in models built on the "Horizon" and "Access" platforms. In response, Whirlpool implemented design changes, including a new cleaning cycle introduced in 2005, although engineers recognized it would not eliminate all residue or effectively control mold growth. Internal documents revealed that 35% of Duet customers reported odor complaints, which increased over time. By March 2006, Whirlpool acknowledged potential mold growth and musty odors in heavily affected machines. By late 2006, the company received over 1.3 million complaint calls and many service requests. To address these issues, Whirlpool developed new cleaning products for all front-loading washers, anticipating significant revenue from consumers seeking odor solutions. In September 2007, Whirlpool launched Affresh™ cleaning tablets and marketed them as a solution to odor-causing residues. The company encouraged regular use of these products and revised its consumer guides accordingly. However, users like plaintiff Allison found that Affresh™ did not resolve the mold problem. Whirlpool shipped over 121,000 “Access” platform Duets and nearly 42,000 “Horizon” platform Duet Sports to Ohio from 2002 to March 2009. In opposing class certification, Whirlpool argued that most Duet owners did not experience mold issues and that variations in models and platforms made certification inappropriate, asserting that consumers without mold problems could not demonstrate injury under Ohio law.
Plaintiffs in a class action against Whirlpool must demonstrate liability for each washing machine model, which Whirlpool argues undermines the class action requirements of commonality, predominance, and superiority. Whirlpool contends that the diverse laundry habits and experiences of consumers with the Duet models render the named plaintiffs atypical and unsuitable as class representatives. To support its position, Whirlpool submitted various forms of evidence, including deposition excerpts, employee affidavits, expert reports, and consumer articles. Although granted permission to present live testimony at the class certification hearing, Whirlpool chose not to do so.
The district court reviewed the extensive factual record and oral arguments regarding class certification and found that the prerequisites under Rule 23 (a) and (b)(3) were satisfied for the plaintiffs’ claims related to tortious breach of warranty, negligent design, and negligent failure to warn. Consequently, the court certified a liability class consisting of Ohio residents who purchased specific Whirlpool washing machines for personal use, with exclusions for certain entities and claims. However, the court did not certify a class for the plaintiffs’ claim under the Ohio Consumer Sales Practice Act, which is not under appeal.
Whirlpool promptly appealed the district court’s class certification order. The appellate court noted that it possesses narrow discretion in reviewing class certification decisions, reversing only if Whirlpool demonstrates a clear abuse of discretion by the district court—defined as reliance on erroneous facts, application of incorrect legal standards, or significant judgment errors. The analysis of class action certification begins with the acknowledgment that class action litigation serves as an exception to the norm of individual party representation.
To obtain class certification, plaintiffs must demonstrate four requirements under Fed. R. Civ. P. 23(a): (1) numerosity, meaning the class is large enough that joining all members is impractical; (2) commonality, where questions of law or fact are shared among class members; (3) typicality, where the claims or defenses of the representatives are similar to those of the class; and (4) adequate representation, ensuring that the representatives will protect the interests of the class. These criteria limit class actions to those closely related to the named plaintiffs' claims.
In addition to meeting these prerequisites, the proposed class must satisfy at least one of the conditions in Rule 23(b). For instance, under Rule 23(b)(3), the court must determine that common legal or factual questions predominate over individual issues and that a class action is the superior method for resolving the dispute. Plaintiffs bear the burden of proving that these requirements are met and must establish that they share interests and injuries with the class members.
Class certification is contingent upon a "rigorous analysis" to confirm compliance with Rule 23, which may necessitate evaluating evidence regarding the viability of the class action. Courts may need to investigate beyond the pleadings to address the certification question, although this inquiry into the merits is limited to what is necessary to satisfy Rule 23 prerequisites. While touching on merits aspects during certification is typical, it should not evolve into a broad merits inquiry. Whirlpool contends that the district court improperly avoided deciding important factual questions by relying on the precedent set in Eisen, which states that Rule 23 does not grant courts the authority to conduct a preliminary merits inquiry for class action maintenance.
The Supreme Court's rulings in Amgen and Dukes establish that some examination of the merits is necessary to determine if the prerequisites of Rule 23 for class certification are met, while emphasizing that district courts should not convert the certification process into a trial on the merits. The district court, despite referencing prior case law suggesting a merits inquiry is not required for class certification, appropriately considered relevant merit issues alongside substantial evidence presented, including corporate documents and expert affidavits. The court ultimately denied certification on one claim but certified a liability class for others, reserving damage assessments for individual cases, thus conducting a thorough analysis as mandated by legal standards.
Regarding Rule 23(a) prerequisites, Whirlpool did not dispute the class's size, which was deemed sufficient based on evidence of significant shipments of Duets to Ohio. For commonality and typicality, plaintiffs must show that class members experienced the same injury and that their claims are typical of the class claims. Commonality requires a common contention capable of classwide resolution, while typicality is satisfied if the named plaintiffs' claims encompass those of the class members. This framework ensures that the class action can generate common answers relevant to the lawsuit's resolution.
The alignment of interests between class representatives and class members is crucial for adequate representation in class actions, focusing on commonality and typicality as indicators of whether class action maintenance is economically viable and whether class interests are sufficiently protected. A single common question suffices for class certification. In this case, the district court identified two primary questions relevant to the plaintiffs’ claims regarding Whirlpool’s Duets: 1) whether design defects lead to mold or mildew in the machines, and 2) whether Whirlpool adequately warned consumers about this issue.
Under Ohio law, plaintiffs must demonstrate specific elements to succeed in claims for tortious breach of warranty, negligent design, and negligent failure to warn. For tortious breach of warranty, they need to prove the existence of a defect at the time of sale and that it caused injury. Negligent design requires establishing a duty to design against foreseeable hazards, a breach of that duty, and resulting injury. Negligent failure to warn involves demonstrating the manufacturer's duty to warn, a breach of that duty, and resulting injury.
The district court concluded that the central questions regarding design defects and warnings are common to all liability class members. Whirlpool’s argument that commonality is undermined by the diversity of models produced over the years was rejected, as the overarching question of design defects causing mold growth remains pertinent across all models.
Plaintiffs have presented evidence, including internal documents from Whirlpool's Lead Engineer, Andrew Hardaway, indicating that the design of two washing machine platforms is nearly identical, with most differences being aesthetic rather than functional. The central concern about design defects leading to biofilm and mold accumulation in Duet models affects all class members uniformly. This point aligns with a Seventh Circuit ruling that reversed a denial of class certification in a similar case involving Whirlpool-manufactured Kenmore washing machines, which highlighted the commonality of the defect issue despite variations in design.
Whirlpool has attempted to argue that differing consumer laundry habits necessitate individual proof of proximate cause for each plaintiff. However, evidence from Whirlpool's own documents shows that the mold issue persisted regardless of consumer practices and despite efforts to address it. Plaintiffs’ expert, Dr. Gary Wilson, a former Whirlpool Director, acknowledged that while consumer habits might affect biofilm levels, they are not the root cause. Although Whirlpool contested Dr. Wilson's findings due to his lack of review of later design changes, he noted that modifications did not resolve persistent design flaws in the machines, including those that continued to foster conditions favorable to biofilm growth.
The court also referenced the precedent that minor design changes do not negate the commonality and predominance required for class action status, emphasizing that issues of liability can be addressed collectively while allowing for individual assessments of damages.
Evidence shows that the alleged design flaws are common to the class, making this case analogous to Daffin, where a class claimed a defective throttle assembly caused accelerators to stick. Class certification is justified because the proof can determine whether the design flaws in the Duets resulted in mold or mildew growth, allowing a resolution for all class members. In contrast, Whirlpool's reliance on In re American Medical Systems is misplaced, as that case involved individual medical histories and varied proof concerning complications, failing to meet the commonality requirement. Whirlpool also argues the certified class is overly broad because it includes satisfied Duet owners who do not experience mold problems. However, precedent from Daffin supports class certification, as the presence of satisfied owners does not negate the commonality of claims regarding the alleged defect in the product. Lastly, Whirlpool contends that plaintiffs did not assert a “premium price” recovery theory, but evidence and Ohio law support the plaintiffs' claims of implied warranty for the Duets' quality and safety.
Whirlpool's alleged design defects have led to claims from the Ohio Plaintiffs and the Ohio Class, who argue they suffered financial losses due to the diminished value of the washers and consequential damages from purchasing defective products. The plaintiffs assert that Whirlpool had a duty to design the Duets with reasonable care and to warn consumers of potential risks such as foul odors and health hazards. During oral arguments for class certification, plaintiffs' counsel highlighted that both named plaintiffs paid a premium for their Duets, which began emitting foul smells within the first year. The court explored whether the class could include Duet owners without specific problems, to which the counsel confirmed that all owners faced the same defect, even if not all had experienced the odor issue.
Citing the Daffin case, the court decided to include all Duet owners in the class, noting that if the defective design is proven, all members would have experienced a loss in value. For those who paid a premium but did not yet encounter mold issues, damages could be individually assessed. Ohio law allows claims for negligent design and failure-to-warn, even for consumers not in direct contract with manufacturers, supporting the plaintiffs’ position. The court ruled that all Duet owners, including those without mold problems, were injured at the point of sale due to the premium price paid for the defective product. Furthermore, under the negligent failure-to-warn theory, the plaintiffs do not need to show that mold manifested in every Duet, as the injury arose from Whirlpool's failure to disclose the risk of biofilm and mold growth. Circuit cases reinforce this conclusion.
In *Wolin v. Jaguar Land Rover North America, LLC*, the Ninth Circuit reversed a district court decision that denied class certification on the grounds that named plaintiffs failed to demonstrate that an alignment geometry defect causing premature tire wear existed in the majority of vehicles. The appellate court ruled that proof of defect manifestation is not necessary for class certification, emphasizing that individual factors affecting tire wear do not negate the existence of a defect in the vehicles sold. This precedent supports the notion that not all class members need to show actual manifestation of issues, as seen in *Tait* and *Stearns v. Ticketmaster Corp.*, where class injury was established by financial loss in transactions.
In the case of *Glazer v. Whirlpool Corp.*, plaintiffs claimed that all owners of Whirlpool Duets experienced injury from a design defect, regardless of whether mold growth had manifested. The court found that named plaintiffs Glazer and Allison were typical class members as they purchased the machines under the assumption of quality and safety. Both experienced mold issues despite varied usage, indicating they could adequately represent other affected and unaffected Duet owners. The court ruled that all Duet purchasers suffered an immediate injury due to the product's design defect and diminished value.
The district court's decision to certify a liability class met the Rule 23(a) requirements of numerosity, commonality, typicality, and adequate representation. Additionally, the plaintiffs demonstrated compliance with the Rule 23(b)(3) requirements of predominance and superiority, reinforced by recent Supreme Court rulings.
In Amgen, the Supreme Court upheld the certification of a securities fraud class action under Rule 10(b) and Rule 10b-5, focusing on the predominance requirement of Rule 23(b)(3). The Court clarified that while materiality must be proven for a case to succeed, it is not necessary for class certification, as the predominance inquiry should assess whether common questions dominate over individual ones. The Court emphasized that the materiality of alleged misrepresentations is a common issue for the class, allowing for class-wide proof rather than requiring proof for each individual. It also noted that a failure to prove materiality does not lead to individual questions predominating, as the class would either succeed or fail collectively. The ruling aimed to streamline the adjudication process, avoiding repeated mini-trials at the certification stage. Following Amgen, the district court’s conclusion that common liability questions predominated for the Ohio class regarding Whirlpool’s alleged design defects and warnings was affirmed, mirroring the cohesive nature of the class seen in Amgen.
Rule 23(b)(3) does not require a plaintiff to demonstrate that each element of a claim can be proven classwide for class certification. Evidence can determine, for all class members, whether the alleged design defects caused biofilm accumulation and whether Whirlpool adequately warned consumers about mold growth in their Duets. Whirlpool failed to identify any significant dissimilarity among class members that would undermine the fairness or efficiency of the class action process. Instead, Whirlpool argues that the lack of proof regarding an element of the plaintiffs’ claim is a critical issue. However, this issue should be resolved at trial or during a summary-judgment motion, not during class certification.
The analysis concludes that common questions dominate over individual issues, aligning with the focus of the predominance inquiry, which supports representative adjudication. The document references the Supreme Court’s rulings, including the Comcast Corp. case, which clarified that damages must be measurable based on the approved liability theory for class certification to succeed. In Comcast, although a class was certified, the damages model failed to isolate damages for the sole permitted theory of antitrust impact, leading the Supreme Court to reverse the certification. The Court emphasized that any damages model must directly link to the liability theory that could be proven classwide, which neither the Third Circuit nor the district court had mandated in their original rulings.
The Supreme Court rejected a previous analysis that contradicted the ruling in *Dukes* and improperly allowed arbitrary damage measurement methods at the class-certification stage, undermining the predominance requirement of Rule 23(b)(3). It ruled that the inability of the damages model to link damages to the approved theory of liability meant that class certification was not warranted. The Court reversed the certification order, distinguishing this case from *Comcast Corp.*, where a class was certified for both liability and damages. Here, the district court only certified a liability class, deferring individual damage assessments. The decision in *Comcast*—which emphasized the necessity for common liability proof to meet the predominance standard—has limited relevance when liability and damages are bifurcated. The principles established in *Amgen* and *Comcast* indicate that named plaintiffs must demonstrate that common questions prevail over individual ones to satisfy Rule 23(b)(3). The majority in *Comcast* noted the straightforward application of class certification principles, and the dissent recognized that existing class action standards remained unchanged. It was noted that achieving economies in the adjudication of common liability questions can meet the predominance standard, even if damages cannot be aggregated. A class may be certified solely for liability, with individual damages assessed later, which is widely accepted. Ultimately, the evidence and district court's reasoning support class certification as the most efficient means of adjudication, particularly since individual lawsuits are unlikely due to high litigation costs relative to potential recoveries.
The Advisory Committee's intent in drafting Rule 23(b)(3) focused on enabling groups of individuals to effectively bring claims against defendants, recognizing that many individuals lack the financial resources to pursue litigation individually. The Seventh Circuit highlighted that the alternative to class actions is often no suits at all, due to prohibitive costs. Class members retain the option to opt out if they wish to pursue individual litigation. The district court will first address common liability issues under Ohio law, potentially leading to a judgment for Whirlpool or a consideration of damages. The court has discretion to resolve damages, as supported by precedents like Amgen and Comcast Corp. The conclusion reaffirms the district court’s decision, stating that the prerequisites for class certification under Rule 23(a) and (b)(3) were satisfied. Specifically, the plaintiffs demonstrated numerosity, commonality, typicality, and adequate representation, with common questions predominating over individual issues. The court found that a class action is the superior method for addressing Whirlpool's liability, and thus, the certification of the class concerning liability is upheld.
