In re Whirlpool Corp. Front-Loading Washer Products Liability Litigation
Docket: Case No. 1:08-WP-65000; MDL No. 2001
Court: District Court, N.D. Ohio; October 3, 2014; Federal District Court
Plaintiffs Gina Glazer and Trina Allison are suing Whirlpool Corporation on behalf of a class of Ohio purchasers of Duet washing machines. The court is currently addressing several Daubert motions aimed at excluding expert testimony. The rulings are as follows:
- Whirlpool's motions to exclude the testimonies of Dr. David Griffin, Dr. Marc Van Audenrode, and Dr. R. Gary Wilson are DENIED.
- Whirlpool's motion to exclude Todd B. Hilsee's testimony is GRANTED.
- The motions to exclude Sarah Butler's and Dr. Harriet Burge's testimonies are both DENIED.
- Plaintiffs' motions regarding Dr. Timothy Bresnahan's testimony are GRANTED in part and DENIED in part.
- The motions to exclude Dr. M. Laurentius Marais's testimony are GRANTED.
- The motions regarding Dr. Ned Ostojic's and Dr. Ttamar Simonson's testimonies are GRANTED in part and DENIED in part.
- The motion to exclude Dr. Priya Gopalakrishnan's testimony is GRANTED, while the motion regarding Dr. Paul M. Taylor's testimony is GRANTED in part and DENIED in part.
The court references Federal Rule of Evidence 702, which outlines the criteria for admissibility of expert testimony, emphasizing the necessity for relevance and reliability. Key factors for assessing reliability include the ability to test the expert’s theory, peer review, known error rates, existence of operational standards, and general acceptance in the scientific community. The court clarifies that its focus is on the principles and methodology of the expert testimony rather than the correctness of the opinions presented.
Expert testimony must be based on sound methodology rather than merely reaching the correct conclusion, as established by the Daubert standards. While the Daubert factors guide trial courts, they are not mandatory in every case, allowing courts discretion to assess the reliability of expert testimony. Courts also have flexibility regarding the necessity of hearings to evaluate the reliability of expert opinions.
In this case, the plaintiffs have engaged R. Gary Wilson, a mechanical engineer and former Director of Laundry Technology at Whirlpool, as their design expert. He asserts that Whirlpool's Duet washers have inherent design flaws leading to mold and odor issues, claiming the design does not facilitate self-cleaning or easy maintenance. Wilson suggests that Whirlpool should have anticipated these problems and could have opted for alternative designs.
In response, Whirlpool has designated four experts: Dr. Priya Gopalakrishnan, Dr. Ned Ostojic, Dr. Harriet Burge, and Paul Taylor. Gopalakrishnan conducted extensive testing on various washing machines, including visual inspections and odor assessments, concluding that the Duet washers did not produce the odors claimed by the plaintiffs and that proper maintenance mitigates residue buildup. Ostojic, an expert in odor control, critiques Wilson's methodology as unreliable and supports Gopalakrishnan's findings, indicating minimal customer complaints about odors. Burge discusses the factors influencing biofilm and odor formation on washing machine surfaces based on her inspections. Taylor, specializing in product analysis, counters Wilson's claims regarding design defects and addresses the analyses of other plaintiff experts related to customer service data.
Taylor's inspection of the Plaintiffs’ Duet washing machines indicates that their maintenance neglect led to issues with biofilm and odor. He compared the Duet’s Use and Care Guides with those of other brands, concluding that no front-loading washing machines are self-cleaning and many top-loading ones are also not. Analysis of customer-call data revealed that the mold problem rate for Duet washers is lower than claimed by the Plaintiffs’ experts. Taylor's review of Consumer Reports repair history surveys supports that Duet repair rates during the class period were average.
Whirlpool challenges the testimony of R. Gary Wilson, its former Director of Laundry Technology, who argues that design flaws in Duet washers caused biofilm and mold issues. Whirlpool seeks to exclude Wilson's testimony on grounds of his qualifications, methodology, and evidence handling. They assert Wilson is unqualified due to his focus on dishwashers and limited experience with washing machines, particularly lacking in biofilm study. Whirlpool critiques Wilson’s methodology as unscientific, noting his reliance on an unsupported 'unwritten design principle' that appliances should self-clean, absence of objective testing, and a small, biased sample of used Duets. They highlight Wilson's failure to analyze consumer usage patterns and alternative washer designs, asserting his conclusions neglect relevant evidence, including clean components in some Plaintiffs’ machines and varying biofilm accumulation in top-loaders.
Wilson's qualifications to testify on the design and mold accumulation issues of Whirlpool Duets are supported by his extensive experience, including his role as a design engineer and Director of Laundry Technology at Whirlpool. Despite not having directly worked with front-loading washing machines for consumers, he managed a research-and-development team that designed a front-loading washer for the International Space Station. Previous court cases, specifically In re Front Loading Washing Machine Class Action Litigation and Butler v. Sears, have upheld Wilson's testimony, noting his expertise in identifying design flaws that lead to biofilm accumulation and mold growth in front-loading washers.
Wilson has asserted that all models of certain washers fail to self-clean, resulting in odor issues, and that the design inherently contributes to mold growth due to insufficient cleaning capabilities. His testimony is grounded in over 20 years of industry experience, education, and analysis of the washers involved in this litigation. He emphasizes a fundamental design principle that washers must be able to clean themselves of residue to be effective, referencing standards from the American Society of Sanitary Engineering. While Whirlpool claims Wilson did not explicitly cite these standards, plaintiffs argue that the principles are well-known among Whirlpool engineers.
In addressing Whirlpool's argument regarding the impact of user habits on mold growth, plaintiffs clarify that Wilson's opinion holds that the design flaws exist independently of user behavior; while habits may influence the extent of mold growth, they do not cause it.
Whirlpool's internal documents corroborate Wilson's findings regarding mold and bacterial growth in their HA wash platforms, indicating such growth can occur within 24 hours to months. Plaintiffs assert that Wilson's visual field inspection methodology is valid and that his extensive experience suffices as a basis for his expert opinions, even without conducting his own testing. They argue that Wilson's approach aligns with ASSE standards, which do not mandate quantitative measures for biofilm. Wilson evaluated various washers beyond the Whirlpool Duets and determined that biofilm accumulation in top-loading machines was less severe and easier to clean. He critiqued Whirlpool's complaint rates, believing they did not reflect the company's actions regarding the biofilm issue. The Court dismisses Whirlpool's objections to Wilson's testimony, affirming his qualifications to discuss design defects in Whirlpool Duets and the reliability of his methodology. It acknowledges that while Wilson did not conduct traditional scientific testing, his inspections of 27 washers and review of relevant documents support his conclusions. Wilson's foundational principle of self-cleaning is consistent with ASSE standards, and his methods are deemed reliable despite Whirlpool's claims of an unrepresentative sample size.
Wilson leveraged his experience in washer design at Whirlpool to assert that the Duet machines are prone to mold development. He addressed Whirlpool's critiques regarding his methodology, including claims that he neglected consumer usage, alternative mold causes, and contradictory evidence from Whirlpool’s experts, by providing reasonable justifications for his conclusions. These challenges pertain to the credibility of his testimony rather than its admissibility, as outlined in Daubert. Cross-examination and the introduction of contrary evidence serve as appropriate means to evaluate such evidence.
Gopalakrishnan, an aerospace engineer from Exponent, Inc., was engaged by Whirlpool to investigate Wilson's claim regarding mold accumulation in Duet washers. She conducted a comprehensive study involving fifteen washing machines, simulating household usage over several months. Her findings indicated no visible mold growth, emphasizing that proper maintenance is crucial in preventing residue buildup. Gopalakrishnan concluded that none of the washers exhibited odors associated with mold or mildew and confirmed that the top-loading washers are not self-cleaning.
The plaintiffs challenged Gopalakrishnan's qualifications, arguing her expertise in aerospace engineering does not extend to biology or mycology, and claimed her study deviated from the scientific method, misrepresented data, and was unhelpful. They highlighted her lack of experience with biofilm prior to the litigation and criticized her testing protocol for being inconsistent and novel, citing an incident involving contamination from a skunk as a significant flaw in her methodology.
Plaintiffs allege that Gopalakrishnan manipulated results and neglected to document findings unfavorable to Whirlpool, citing her acknowledgment of occasionally detecting unpleasant odors in washing machines without sampling or recording them. In late 2012, she performed odor sampling but did not include those results in her reports. The Plaintiffs contend that her methodology of running numerous loads over three months is unreliable for simulating typical household use, as it may not accurately reflect biological growth buildup.
Whirlpool counters that Gopalakrishnan, despite lacking a biology background, has relevant experience in testing appliances and adhered to scientific methods in her study. They argue her study accurately reflected consumer usage patterns based on reported practices from the named plaintiffs, with each machine undergoing at least 300 wash cycles over four months. Whirlpool states that Gopalakrishnan intentionally did not clean some washers to simulate consumer misuse and that she sourced actual laundry from Exponent employees and a senior living facility, making additional research unnecessary.
Whirlpool defends the accelerated operation of washers, asserting it aligns with known consumer usage and that there is no evidence to suggest it affects residue buildup. They claim Gopalakrishnan followed standard protocols in collecting samples and that any minor protocol adjustments were aimed at enhancing study accuracy. Whirlpool downplays the significance of a skunk odor incident, stating it only affected sample storage and that Gopalakrishnan excluded any compromised samples from her study. Although Gopalakrishnan reported no machines developed biofilm-related odors, she did acknowledge transient odors, attributing some to detergent or fabric softener.
The Court finds merit in several of the Plaintiffs’ arguments and grants their motion to exclude Gopalakrishnan’s testimony, noting her qualifications are primarily in aerospace engineering and thermal science.
Gopalakrishnan lacks expertise in mycology, mold, or odor, having no relevant academic background or specific knowledge in biology, which undermines her ability to offer credible conclusions regarding Whirlpool's washers. Her general experience in experimental design does not suffice for the specific opinions she presents, such as claims about residue buildup and odor development. The court finds significant issues with Gopalakrishnan's "novel" methodology, which was created without reviewing existing literature or consulting Whirlpool's testing protocols, leading to irregularities that hinder replicability. Moreover, her delegation of key tasks to untrained temporary employees further compromises the study’s integrity. An incident of skunk contamination, although affecting a limited number of samples, raises doubts about the reliability of her methods since it went unnoticed by her team. Additionally, Gopalakrishnan's omission of important data, including the detection of unpleasant odors and unfavorable results from odor sampling in late 2012, raises further concerns about the completeness and reliability of her findings. Collectively, these flaws diminish the foundation of her analysis, resulting in unreliable conclusions that warrant exclusion from the proceedings.
The plaintiffs' expert reports and surveys are deemed inadmissible due to significant flaws, leading to the granting of the plaintiffs’ motion to exclude Gopalakrishnan’s testimony. Ostojic, an analytic chemist and chemical engineer at Odor Science Engineering, Inc., was retained by Whirlpool to counter Wilson’s opinions and assess the odor sampling in Gopalakrishnan’s washer study. Ostojic's opinions can be categorized into three main areas:
1. He explains human odor perception, arguing that the presence of mold in washers does not necessarily correlate with detectable odors.
2. He supports Whirlpool expert Paul Taylor’s findings that few Duet owners reported complaints regarding odors.
3. He quantifies air samples collected by Gopalakrishnan.
Ostojic criticizes Wilson’s methodology, stating that Wilson failed to use reliable scientific methods and that evidence of biofilm does not equate to the presence of odor. He notes that odor perception varies widely among individuals and asserts that most people will not detect odors unless the concentration exceeds a certain threshold. Ostojic concludes that the presence of biofilm does not automatically lead to odors in washers, a point the plaintiffs do not contest.
In his second opinion, Ostojic references Taylor’s study indicating low complaints about mold and odors, asserting that this aligns with the variability in human odor perception. The plaintiffs challenge Ostojic's qualifications to interpret call center data and claim he overlooks internal Whirlpool documents that contradict reported complaint rates.
Ostojic's opinions regarding odor complaints related to Whirlpool are challenged by Whirlpool, which asserts that Ostojic merely summarizes analyses by Hardaway and Taylor to validate his own conclusions. Whirlpool contends that Ostojic did not overlook their internal documents indicating a 35 percent odor complaint rate, but instead deemed Hardaway and Taylor's analyses more credible. The court partially grants and partially denies the plaintiffs' motion concerning Ostojic's testimony. Ostojic can state that Taylor's findings align with his own opinions but cannot validate Taylor's statistical analysis due to his lack of expertise in statistics and customer satisfaction.
Ostojic's third opinion is derived from a "sniff-test" study involving 160 air samples analyzed by two professional sniffers, assessing odor characteristics, concentration, intensity, and hedonic tone. His findings suggest most samples contained pleasant odors, while unpleasant odors were present at concentrations too low for average detection. Plaintiffs aim to exclude Ostojic’s odor study, citing concerns over the lack of blind panelists with potential financial biases, reliance on only two panelists for most data, and the influence of skunk contamination. Whirlpool defends the study’s reliability under ASTM guidelines and disputes claims of bias, asserting that the panelists were unaware of the study's purpose. Ultimately, the court grants the plaintiffs' motion to exclude Ostojic's sniff-test results, acknowledging that while skunk contamination alone is not a disqualifying factor, the limited and potentially biased panelist representation is a more significant issue.
Whirlpool contends that Ostojic's study utilized "blind" testers unaware of whether samples were from well-maintained or poorly maintained washers, or from different types of machines. However, concerns are raised regarding the potential bias of testers, especially as at least one was aware of Whirlpool's funding for the study. Industry standards for odor panelists, which require unbiased representation from the community, sufficient numbers of participants, and adherence to ASTM guidelines, were not met in Ostojic's study. The Court has excluded results from Gopalakrishnan’s study, which Ostojic's findings reference, rendering them unhelpful to the jury. Consequently, Ostojic's methodology is deemed fundamentally flawed, leading to partial approval and denial of the plaintiffs' motion to exclude his testimony.
Regarding expert testimony in the case, the plaintiffs will present Chin Yang, a mycologist, while Whirlpool will counter with Harriet Burge, an aerobiologist from EMLab P.K. Plaintiffs do not contest several of Burge's opinions on mold formation but challenge her qualifications to opine on design defects, citing her lack of engineering expertise and limited understanding of washing machine mechanics. They argue that Burge's opinions on alternative causes of odor complaints are speculative, lacking empirical support. Specific opinions under challenge include Burge's assertions about the unlikely growth of fungi and bacteria in washing machines under certain cleaning practices, and her claim that such microorganisms would not contaminate laundry to produce foul odors. Burge argues that conditions like adequate ventilation and proper machine maintenance prevent significant microbial growth and the accompanying odors.
The sulfur odor from plaintiff Glazer's laundry room during the use of the Duet Sport washer is attributed to the flushing of wash solution through the plastic drain hose into an open wash basin, which releases volatile organic compounds (VOCs) produced by anaerobic bacteria in the hose. Whirlpool argues that Burge's opinions focus on mold accumulation rather than washer design or engineering, and her critique of plaintiff expert Wilson's methodology is within her expertise as a research scientist. The court denies plaintiffs' motion to exclude Burge's testimony, emphasizing that her opinions are based on biological factors rather than design defects. Burge’s insights into the odor’s alternative causes are supported by her inspections, literature review, and personal observations. Criticisms regarding her lack of dismantling the washing machine pertain to the testimony's weight, not admissibility. Additionally, plaintiffs challenge Taylor's testimony, arguing it lacks mechanical engineering relevance. Taylor, a mechanical engineer, inspected the washing machines to counter plaintiffs' claims of design defects causing mold and odors, as well as to address plaintiffs' experts' analyses of customer service data.
Plaintiffs assert that Whirlpool's expert, Taylor, is unqualified to testify on various subjects, including biology, odor measurement, database analysis, statistics, and consumer behavior. The Court reviewed Taylor's five reports and determined that the motion to exclude his testimony should be partially granted. Annotated copies of the reports, highlighting the inadmissible portions, are included as Exhibit A.
Taylor inspected the laundry rooms of plaintiffs Allison and Glazer to assess potential causes of odor issues unrelated to their washers. His observations included the presence of odor, visible residue, and the use of detergent. Notably, he found that Glazer did not have high-efficiency (HE) detergent as claimed, and Allison possessed an outdated packet of washer cleaner despite stating she used it regularly, along with a generally messy environment.
Whirlpool intends to use Taylor's observations to demonstrate that the plaintiffs did not follow washer usage guidelines and to challenge Allison's claims regarding her washer's cleanliness. Plaintiffs argue that Taylor lacks the qualifications to discuss mold or residue and should not challenge their credibility or contradict their statements about detergent use. Nevertheless, while Taylor cannot opine on the plaintiffs' credibility, he is allowed to present his observations for the jury to interpret, although any conclusions he draws about their cleaning habits are inadmissible due to weak relevance.
Regarding the terminology used by Whirlpool, plaintiffs' expert Wilson contends that Whirlpool intentionally avoided terms like mold, mildew, and bacteria in customer communications. In contrast, Taylor notes that these terms were indeed used in Whirlpool's user guides, letters, and emails. Plaintiffs claim Taylor lacks expertise in communications and should not be allowed to evaluate the adequacy of Whirlpool's terminology.
Whirlpool's expert, Taylor, reviewed User Care Guides (UCGs) as an engineer to assess manufacturer expectations for consumer operation of washing machines. While Plaintiffs acknowledge Taylor's lack of expertise regarding the adequacy of these communications, he does not intend to offer opinions on that aspect. Taylor notes the use of terms like "mold," "mildew," and "bacteria" in the UCGs but is restricted from commenting on the sufficiency of consumer disclosures.
Plaintiffs’ expert, Wilson, claims that washers should self-clean or be easily cleanable, arguing that the Duet models are defective due to this failure. In contrast, Taylor examined UCGs from various front-load washers, concluding that all manufacturers provide similar cleaning instructions and that many top-load machines also require maintenance. The court finds Taylor qualified to analyze UCGs based on his mechanical engineering background, countering Plaintiffs’ assertions of his unqualification.
Additionally, Whirlpool expert Hardaway analyzed complaint rates regarding mold and odor, while Plaintiffs' expert Griffin expanded on this analysis. Taylor performed a detailed examination of customer service databases, finding that reported mold issues with Duet washers are significantly lower than claimed by Plaintiffs. He also referenced Consumer Reports data for further validation. Plaintiffs challenge Taylor's qualifications for statistical analysis due to his mechanical engineering background, arguing that his testimony is speculative and unnecessary. Whirlpool defends Taylor’s experience in analyzing warranty and service data, asserting that his review of Consumer Reports is relevant as it provides real-world evidence against Wilson's claims about self-cleaning capabilities.
The Court finds that Taylor, a mechanical engineer, possesses adequate knowledge and experience with consumer databases to provide expert opinions on complaint rates related to Whirlpool's products. His reliance on Whirlpool’s databases is deemed appropriate as they align with the type of data engineers typically assess for design and complaint evaluations. However, Taylor's use of Consumer Reports to support his claims about low mold issues among consumers is criticized; he lacks understanding of the data collection methods used by Consumer Reports, making his reliance on it unscientific and unnecessary. The Court rejects Whirlpool's argument that mechanical engineers generally consult Consumer Reports for defect assessments.
Regarding the evaluations of other experts—Ostojic, Burge, and Gopalakrishnan—the Court finds Taylor’s opinions moot given the exclusion of Gopalakrishnan’s testimony and the results from Ostojic’s tests. Taylor will not be allowed to merely endorse Burge's work without independent analysis.
Taylor's own studies on the Clean Washer Cycle (CWC) involved testing its effectiveness through various methods, including a "fingerpaint study" and visual inspections via drilling and video. While plaintiffs argue these studies do not substantiate the CWC's effectiveness in removing residue or biofilm, they do not contest Taylor's qualifications to conduct the research. The Court deems his methodology reasonable, indicating that any challenges to his findings should be addressed through cross-examination, emphasizing that expert opinions must be supported by factual assumptions found in the record.
Weaknesses in an expert witness's factual basis affect the weight of evidence rather than its admissibility, as established in relevant case law. Taylor's Clean Washer Studies, which include a 2008 Whirlpool study on residue build-up in top-load washers and Taylor's own review of used machines, are admissible. Taylor asserts that many top-load washers exhibit mold, mildew, and residue, contradicting Wilson’s claim that such machines self-clean and do not accumulate biofilm. Plaintiffs argue that Taylor's evidence is anecdotal and lacks scientific rigor, but the court finds the evidence relevant and reliable for rebuttal purposes, especially since Wilson’s methodology is similar.
Taylor conducted swab samples from various machines, including those of the Plaintiffs, and sent these to a lab for analysis. Plaintiffs contend that Taylor is unqualified to perform biological sampling and that his methodology was inconsistent. However, the court deems Taylor qualified for sampling and emphasizes that he relied on an independent lab for results. The variability in sampling locations only affects weight, not admissibility.
Additionally, Taylor performed air sampling from the machines and sent them for sniff tests, which were evaluated by a more comprehensive eight-person panel compared to Wilson's two-person panel. Though Plaintiffs claim Taylor is untrained for air sampling and analysis, the court finds these results admissible for similar reasons as the swab samples. Taylor also sampled other areas in the Plaintiffs' homes, but this evidence is excluded as irrelevant. Consequently, the court partially grants and denies the Plaintiffs’ motion to exclude Taylor’s testimony.
Separately, Whirlpool challenges the testimony of the Plaintiffs’ warnings expert, Hilsee, who specializes in communications and readability, having previously collaborated with the Federal Judicial Center on plain language forms.
Plaintiffs engaged Hilsee to investigate communication issues surrounding alleged mold problems in Whirlpool Duet washing machines and assess whether these issues were adequately conveyed to consumers. Hilsee analyzed media reports on front-loading washers and mold from 1970 onwards, Whirlpool's Use and Care Guides (UCGs) from 2001 to 2009, and retailer communications at the point of sale. He concluded that Whirlpool’s UCGs failed to clearly inform consumers about potential mold issues, noting that consumers typically do not read these guides prior to purchase and that the information presented is vague, often using euphemisms that obscure the communication of mold problems. Hilsee also criticized Whirlpool's website for insufficient disclosure, stating that "mold" is mentioned only minimally while euphemisms related to "washer freshness" dominate.
Whirlpool sought to exclude Hilsee's testimony, arguing it was relevant only to the dismissed failure-to-warn claim, that his methodology was subjective and unreliable, and that he lacked expertise in consumer behavior. The Court rejected the latter two arguments but found the first persuasive, granting Whirlpool's motion to exclude Hilsee's testimony. It determined that Hilsee's opinions were pertinent only to the dismissed failure-to-warn claim, with no relevance to negligent design or breach of warranty claims. Plaintiffs briefly argued that Hilsee's testimony could still rebut Whirlpool's experts regarding disclosure adequacy, but the Court noted that since the failure-to-warn claim was dismissed, there was no basis for rebuttal. During a pretrial conference, Plaintiffs acknowledged that Hilsee's testimony would be excluded if Whirlpool expert Taylor was not allowed to discuss the adequacy of communications. The Court confirmed that since Taylor's opinions on this matter were not permitted, Hilsee's testimony was also irrelevant, accepting Plaintiffs' agreement. However, if Whirlpool later introduces testimony regarding the adequacy of disclosures, Hilsee's testimony could become relevant for rebuttal.
Whirlpool's motion to exclude Hilsee's testimony has been granted. Plaintiffs plan to present expert testimony on measuring damages related to class members' alleged injuries, which stem from paying a premium for negligently designed washers and Whirlpool's failure to disclose the risks of mold and biofilm growth. Four damages experts were designated: Dr. Allan Taub, Sarah Butler, Dr. Marc Van Audenrode, and Dr. Joshua Gans.
Dr. Taub proposed four methods to calculate class-wide damages without individual inquiries, including the full purchase price of the washer, a percentage of the purchase price, the cost of monthly cleaning products, or the benefit Whirlpool gained from sales divided by the number of plaintiffs. Though Taub's opinions were later withdrawn, they are reflected in other experts' reports.
Sarah Butler conducted a survey assessing consumer preferences for washing machines, concluding that informed consumers would pay $143 to $419 less for machines requiring additional maintenance. Dr. Van Audenrode confirmed Butler's findings using econometric models and proposed two measures of damages: price elevation impacting producers' pricing and consumer surplus changes based on consumer willingness to pay.
Dr. Gans evaluated Butler's findings on willingness to pay, deeming them economically reasonable, and offered three alternative damage calculation methods: willingness to pay, the difference in price based on pre-sale disclosures, and the cost of mitigation over the machine's lifespan. Plaintiffs withdrew Taub's designation on June 2, 2014. Whirlpool has moved to exclude the testimonies of Butler and Van Audenrode but has not challenged Gans's proposed testimony.
Whirlpool engaged Drs. M. Laurentius Marais, Itamar Simonson, and Timothy Bresnahan to counter the Plaintiffs' damages claims. Marais critiques Plaintiffs’ expert Taub, asserting that class-wide damages cannot be calculated without individual assessments, disputing Taub's claims that Plaintiffs can recover the full purchase price of washers or a uniform fraction thereof. He also argues against using the cost of Affresh as a damages model, noting its introduction in 2007 and the variability in consumer cleaning habits.
Simonson conducted two studies related to Butler’s "willingness-to-pay" model. His telephone study of Whirlpool front-loader owners indicated high satisfaction levels, while a mall study found that informing potential buyers about maintenance requirements does not affect their purchasing decisions.
Bresnahan, an economist, criticized Butler’s survey, claiming it is flawed and asserting that Plaintiffs incurred no economic damages. He analyzed market data on consumer behavior and purchasing trends, concluding that they do not support Butler's findings. Bresnahan also presented an “operating cost study,” suggesting that Whirlpool front-loaders are less expensive to operate than typical top-loaders.
Sarah Butler, retained by Plaintiffs, specializes in survey research and market analysis. She estimated the potential price impact had Whirlpool disclosed additional maintenance tasks for its Duet washers. Butler conducted an internet conjoint study with 309 Ohio residents, asking them to evaluate hypothetical washers based on various attributes, including maintenance related to biofilm and mold growth.
The buildup of residue in certain washing machines can cause odors in both the machine and clothes, necessitating specific maintenance practices to mitigate these issues. Recommended maintenance steps include: leaving the door open between washes, monthly inspection and cleaning of the door seal with bleach if stained, and running a monthly empty cycle with bleach or an approved cleaning product. Top-loading washers typically require no additional maintenance, while front-loading washers have multiple maintenance requirements.
Consumer expert Butler asserts that had Whirlpool disclosed the necessary maintenance to prevent mold problems before sale, consumers would have been willing to pay significantly less for front-loading machines—between $143 and $419. Whirlpool challenges Butler's analysis, arguing the survey design is flawed due to the inclusion of non-existent washing machine options, exclusion of certain class members, and the inappropriateness of conjoint analysis for damage assessment. The court, however, denies Whirlpool's motion to exclude Butler's testimony, stating that the concerns raised relate to the weight of the evidence rather than its admissibility. The court distinguishes this case from McLaughlin v. American Tobacco Co., emphasizing that Butler's methodology, including the status quo option of a non-maintenance front-loader, is reasonably reliable.
Whirlpool's assertion that all front-loading washers necessitate biofilm maintenance is deemed irrelevant to Butler's survey, designed using conjoint analysis, which presents hypothetical product options to respondents. Whirlpool's claim that Butler improperly excluded Ohio class members from her survey affects the weight of the results but not their admissibility. Plaintiffs argue that this exclusion was necessary to avoid bias and accurately reflect potential washer purchasers' behavior. The court clarifies that Butler's survey measures the alleged decrease in value of the Duet washers due to design defects, not hedonic damages, which would pertain to loss of enjoyment. Despite some methodological flaws, surveys can still be admissible if they possess probative value, allowing the fact-finder to determine their weight. Consequently, Whirlpool's motion to exclude Butler's testimony is denied. Additionally, Van Audenrode, an econometrician supporting Butler, counters criticisms from Whirlpool's expert Bresnahan regarding Butler's analysis. He concludes that her willingness-to-pay assessment is valid and an appropriate measure of class damages.
Van Audenrode conducts a damage analysis based on Butler’s data, creating a hypothetical scenario where Whirlpool fully disclosed biofilm-related maintenance needs before sale. He estimates a price difference of approximately $160 between the actual prices of Duet machines and those in this hypothetical scenario. Whirlpool seeks to exclude Van Audenrode's testimony on three grounds: (1) he allegedly disregards 60% of relevant data, (2) he incorrectly assumes that top-loading washers do not require biofilm-related maintenance, and (3) he relies on flawed Butler data. The Court denies Whirlpool's motion, affirming that Van Audenrode’s approach of using "constraints" in his econometric model is a standard economic practice to eliminate inconsistent data. Whirlpool's experts concur that consumers generally dislike higher prices and prefer to spend less on maintenance, which aligns with Van Audenrode’s model constraints. While Whirlpool suggests that some consumers might prefer higher maintenance or prices for perceived quality, this does not undermine Van Audenrode's analysis. Disputes over methodology pertain to the weight of the evidence rather than its admissibility and can be addressed through cross-examination. Van Audenrode clarifies that he did not assume top-loading machines require additional maintenance, setting that variable to zero based on Butler’s study. Since the Court has also denied the motion to exclude Butler’s testimony, Whirlpool's argument regarding reliance on Butler’s data is unfounded. Consequently, Whirlpool's motion to exclude Van Audenrode's testimony is rejected.
Bresnahan's research focuses on empirical methods to develop economic models regarding firm conduct and consumer preferences in markets for durable goods, particularly in the context of residential clothes washers. He was tasked by Whirlpool to assess Butler's conjoint survey, which claimed that Whirlpool's washers were sold at a premium price of around $419. Bresnahan challenges Butler's "willingness to pay" analysis, asserting that it lacks economic support and concludes that the plaintiffs did not experience any economic damages.
In his comprehensive report, Bresnahan analyzes the U.S. market for residential clothes washers, examining consumer preferences, purchasing behavior, and sales trends. He finds that consumers had adequate access to maintenance information for front-loading washers throughout the relevant period. He also presents evidence contradicting Butler's analysis, including metrics of market success like consumer satisfaction, complaint and repair rates, and his own findings indicating that Whirlpool front-loaders are less expensive to operate than average-efficiency top-loaders. Bresnahan argues that the negligible difference in maintenance between front- and top-loading washers undermines Butler's claim that maintenance issues significantly diminish the value of front-loaders.
The plaintiffs seek to limit Bresnahan's testimony to economics and econometrics, excluding any input on consumer satisfaction, preferences, survey research, or engineering opinions related to washer design and reliability. They contend that Bresnahan lacks qualifications to comment on consumer laundry practices and that some of his conclusions, like those asserting the machines are not defective, extend beyond his economic expertise.
The court partially grants and denies the plaintiffs' motion to exclude Bresnahan's testimony. It affirms his qualifications as an economist and econometrician, allowing him to critique Butler’s analysis, particularly regarding conjoint analysis, which falls within his expertise. Bresnahan's long-standing familiarity with this area, including a relevant publication from over thirty years ago, supports his qualification to provide such testimony.
Bresnahan's analysis of repair rates and reliability data provides a valid basis for his consumer demand assessment, remaining within his expertise and not crossing into engineering territory. Although Plaintiffs dispute many of Bresnahan's opinions based on marketing data as outside his qualifications, he substantiates his comments with citations from the record and third-party literature. While Bresnahan is generally qualified to present opinions on the contested topics, some of his conclusions lack adequate support or are not grounded in typical economic data, particularly his reliance on Consumer Reports. The Court has dismissed the Plaintiffs' failure to warn claim, rendering related disclosure issues largely irrelevant. Moreover, the Court determines that Consumer Reports is not a standard source for economists assessing defect or disclosure issues, thus excluding Bresnahan's analysis based on that source. However, Bresnahan's operating cost study remains admissible, as critiques of his assumptions pertain to weight rather than admissibility. His assumptions derive from credible sources, including Proctor & Gamble surveys and direct observations. Although the Court acknowledges that experts can use hearsay evidence, it will not allow Bresnahan to present assumptions based solely on Consumer Reports data due to its questionable reliability. As such, Bresnahan will not be permitted to testify about those assumptions or sources. Additionally, his assertion regarding the real-world operating costs of Whirlpool washers contradicts the Plaintiffs' claims and is viewed with skepticism.
Machines in question are deemed non-defective, with superior design minimizing consumer time and costs. Expert opinion on washer defects from Bresnahan is excluded due to lack of engineering expertise, as supported by case law indicating that opinions must be grounded in relevant expertise. The court partially grants the motion to exclude Bresnahan's testimony regarding design defects.
Additionally, Plaintiffs challenge Marais' rebuttal testimony, claiming it contains impermissible legal opinions on damages and is moot following the withdrawal of their expert, Taub. The court agrees with the latter point. Taub previously asserted a reliable method for calculating class-wide damages without individual inquiries and proposed several models. Marais, engaged by Whirlpool, disputes Taub's conclusions, arguing that the entire purchase price cannot be uniformly claimed as damages and that the cost of Affresh cannot serve as an appropriate damages model due to its late introduction and variability in cleaning habits. Marais also challenges Taub's estimated monthly maintenance cost, indicating a lower actual cost for using Affresh. While Marais' opinions specifically rebut Taub, Whirlpool contends they remain relevant despite Taub's withdrawal, as they also counter arguments from other experts, Drs. Gans and Van Audenrode.
Dr. Van Audenrode's damages calculations rely on class member data, but Dr. Marais challenges these calculations by highlighting individualized factors that must be considered. Whirlpool acknowledges that the reports from Gans and Van Audenrode were disclosed later than Marais's reports, with Marais’s being dated December 2009 and January 2010, while Gans and Van Audenrode’s reports are from May 2013. Marais's role was limited to assessing Dr. Taub's earlier report on class damages, and he admitted during his deposition that he did not provide opinions on Gans and Van Audenrode's analyses, which were not disclosed when he issued his reports.
Whirlpool did not previously indicate that Marais's opinions were intended to rebut those of Gans or Van Audenrode, nor did it supplement Marais's reports for this purpose before its June 2, 2014 opposition brief. Any trial testimony from Marais aimed at Gans and Van Audenrode's analyses would introduce new opinions, violating Rule 26. The analyses conducted by Gans and Van Audenrode differ significantly from Taub's, which complicates Marais’s ability to critique them without further clarification. Whirlpool had opportunities to disclose Marais as a rebuttal expert but did not do so according to the Federal Rules, which necessitate timely supplementation of expert disclosures. Noncompliance with these rules could lead to the exclusion of undisclosed testimony, as established in relevant case law. Courts maintain that experts cannot present completely new opinions that were not previously expressed.
Marais’ analyses have consistently aimed solely at discrediting Taub’s findings, with no indication of broader criticism; Whirlpool did not inform Plaintiffs of any additional critiques that Marais might offer. Excluding Marais will not hinder Whirlpool’s defense against Plaintiffs’ experts because Whirlpool has engaged Bresnahan and Simonson, whose rebuttal testimony specifically targets Gans and Van Audenrode. Unlike Marais, the bases for Bresnahan’s and Simonson’s opinions were disclosed to Plaintiffs during discovery, allowing for examination. Consequently, allowing Marais to testify would prejudice Plaintiffs, while Whirlpool would not suffer prejudice from Marais’ exclusion under Rule 37. Plaintiffs’ motion to exclude Marais is therefore granted.
Regarding Simonson, he assessed Butler’s willingness-to-pay model through two studies, including a telephone survey of 515 registered Whirlpool front-loading washer owners and a mall survey examining the impact of maintenance information on purchase decisions. The telephone survey revealed high satisfaction levels (nearly 80% rated between 8-10 on a scale of 1-10) and minimal concerns about odor or mold (only 6.8% mentioned such issues), with 75% indicating they would still opt for a front loader if purchasing anew. Simonson argues that if the Plaintiffs’ claims were accurate, dissatisfaction would be more prevalent, and maintenance concerns would significantly influence purchase decisions. His findings contradict the implications of Plaintiffs’ allegations and Butler's survey, showing that Whirlpool front-loader owners are generally satisfied with their machines.
Simonson conducted a mall survey with over 400 prospective purchasers of front-loaders, divided into a test group and a control group, to assess if pre-purchase information about mold buildup and maintenance would influence their purchasing decisions for Whirlpool front-loaders. Participants first evaluated brochures for non-Whirlpool washers, which lacked maintenance details. They then viewed a Duet washer with a brochure that provided specific care instructions for the test group but omitted them for the control group. Respondents were instructed to review the materials thoroughly and were subsequently asked about their likelihood of purchasing the Whirlpool washer compared to others. Key findings from the survey indicated that providing maintenance instructions did not affect purchase likelihood, maintenance concerns were not highlighted as important by respondents, and consumers utilize diverse information sources in their purchasing decisions. Plaintiffs are seeking to exclude Simonson's testimony regarding his phone survey on the grounds that it lacked focused questions about mold and maintenance, relied on general satisfaction metrics unrelated to point-of-purchase damages, and failed to include a control comparison with other brands, thus not adhering to accepted scientific standards.
Plaintiffs reference LG, 2013 WL 3466821, where a court excluded an internet-based satisfaction study by LG regarding mold issues in front-loading washers, criticizing the survey's inferential leap linking satisfaction to a lack of mold odor without specific questioning on that topic. Plaintiffs argue that Simonson’s focus on satisfaction rather than mold or maintenance issues makes his study similarly subject to exclusion. However, the court finds Simonson's telephone survey methodology sufficiently reliable and does not exclude it. While the LG case identified weaknesses in satisfaction studies, it noted that the flaws in LG's internet survey differ from those present in Simonson’s approach. Simonson's survey aimed to assess consumer dissatisfaction with maintenance, unlike LG’s study aimed at gauging mold prevalence, thus properly serving its purpose. Although Plaintiffs highlight potential weaknesses in Simonson's methodology, such challenges should be addressed in cross-examination rather than in exclusion of evidence, as the court prioritizes the reliability of methodology over correctness of conclusions. Regarding the mall survey, Plaintiffs argue for exclusion based on the absence of mold-related questions and perceived bias introduced by showing brochures of non-Whirlpool washers before presenting a Whirlpool model. Whirlpool counters that Simonson’s survey did not measure preference between brands but rather assessed differences in consumer preference based on maintenance information provided to different groups, asserting that any bias was equally present in both groups and did not affect the validity of the results.
Plaintiffs critique Simonson's mall survey methodology, highlighting that it does not accurately assess consumer preferences regarding maintenance requirements for washing machines. In a hypothetical scenario, Simonson compares a new washing machine, the Duet, to an old washboard, with one group receiving brochures that downplay maintenance and another receiving brochures that emphasize onerous maintenance. All participants prefer the Duet, leading Whirlpool to claim that maintenance concerns do not influence consumer decisions. However, this example demonstrates that the overwhelming preference for the Duet skews the results, making them unreliable for determining consumer attitudes toward maintenance. The survey's design introduces significant bias, as participants are comparing a tangible product with a mere brochure. Consequently, the court grants the Plaintiffs' motion to exclude Simonson’s mall survey results but denies the motion regarding his telephone survey results.
In a separate issue, the court addresses Whirlpool's challenge to Plaintiffs’ statistical expert, Griffin. Griffin reviewed Whirlpool employee Hardaway’s analysis of mold-related complaints, which Hardaway claimed were minimal based on in-house data for Whirlpool-branded Duet washers in 14 states. Griffin, however, found that the number of complaints could be six times higher by examining a broader dataset, including service records for Kenmore-branded washers across all 50 states. Whirlpool does not dispute Griffin's qualifications but contends that his analysis is based on inappropriate data and unreliable methodology.
Whirlpool argues that Griffin's analysis regarding the number of potential mold-related complaints for all Whirlpool-manufactured washers is irrelevant compared to Hardaway’s focus on complaints specifically about Whirlpool-branded washers involved in the lawsuit. Whirlpool claims Griffin's lack of a calculated complaint rate and reliance on broader data renders his findings meaningless and unhelpful to the jury. However, the court finds that Griffin's analysis remains relevant, as the mechanically identical washers across various brands support the consideration of all Whirlpool-manufactured products. This relevance extends to demonstrating Whirlpool's awareness of the mold issue and associated defects.
The court also validates Griffin's methodology as scientifically sound, straightforward, and reproducible, highlighted by Whirlpool's expert Taylor being able to replicate Griffin's results. Challenges to Griffin's data representation are deemed appropriate for cross-examination rather than grounds for exclusion, indicating that such critiques affect the weight of his testimony rather than its admissibility. Consequently, the court denies Whirlpool's motion to exclude Griffin's testimony.
Additionally, Whirlpool had previously designated industrial hygienist Jeffrey Hicks as an expert but later withdrew this designation following the plaintiffs' motion to exclude his testimony. The court notes the importance of evaluating whether an expert's opinions stem from independent research or are tailored for litigation purposes, emphasizing the need for careful assessment akin to their professional work outside of court settings.
Under the Daubert standard, trial courts must ensure that expert witnesses apply the same intellectual rigor in the courtroom as they would in their respective fields. Gopalakrishnan, an expert in mycology, collected air samples using special plastic bags and sent them for analysis to Ostojic, who identified contamination from a skunk spray. Subsequently, Gopalakrishnan excluded the affected samples from her analysis. Taylor's evaluation of Whirlpool's complaints revealed that only a small percentage of Duet owners reported mold issues, a fact supported by various federal court rulings. Courts have emphasized that an expert cannot simply adopt another expert's opinion without critical evaluation, as established in case law. While an expert may rely on the work of others, they must substantiate the veracity of that work. The court may reject testimony if the witness relies on findings outside their expertise without the ability to critically assess them. The plaintiffs contest Burge's opinions related to Gopalakrishnan's study; however, since Gopalakrishnan's testimony has been excluded, this matter is moot. Whirlpool's reference to engineering experts using Consumer Reports is unsupported by case law, as highlighted by a prior ruling that excluded similar opinions lacking research backing. Bresnahan acknowledged the need for measures to evaluate consumer willingness to pay when discussing product features.
Bresnahan relies on multiple sources, including the Hardaway declaration and reports from Mintel and Consumer Reports, to analyze washer design, the advantages of front-loaders, and maintenance requirements. He cites various third-party materials, including Philip Kotler's "Marketing Management" and a 2010 Mintel report, as well as Whirlpool's internal documents to discuss consumer behavior regarding pre-purchase information gathering. Bresnahan presents evidence showing that front-loading washers have gained market acceptance during the class period. His study estimates that lifetime operating costs for top-loaders range from $984 to $1,031, while Whirlpool front-loaders range from $584 to $629. Additionally, he notes that top-loaders require 61 minutes per month for operation (excluding maintenance), compared to 59 minutes for front-loaders, including recommended care. Under Rule 26(e)(1), parties must timely supplement disclosures if they find them materially incomplete or incorrect. The plaintiffs propose to establish state-wide classes in 14 states, including Arizona and California. Whirlpool challenges Griffin’s testimony, alleging it fails to exclude irrelevant service records related to odors. Griffin's affidavit suggests his data may be overinclusive regarding service calls related to specific problems. Hardaway also acknowledges potential over-inclusiveness in his results. However, these issues are deemed appropriate for cross-examination rather than exclusion.
