Whirlpool Washing Machine Class Action Will Go to Trial

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The class action lawsuit against Whirlpool Corp., alleging that its washing machines were faulty and that they build up mold, will move to trial after an Ohio federal judge turned down the company’s attempt to have the lawsuit dismissed.

However, some of the allegations against the appliance manufacturer were tossed by U.S. District Judge Christopher Boyko, including the failure-to-warn charge and the alleged violation of Ohio’s Consumer Sales Practices Act.

The Ohio federal judge did keep the design defect and breach of implied warranty charges.

The Whirlpool washing machine class action lawsuit was filed by plaintiffs Gina Glazer and Trina Allison, who both claim they “bought a front-loading, high-efficiency washing machine manufactured by Whirlpool under the ‘Duet’ brand-name and the machine subsequently developed serious mold problems.” Other lawsuits making similar allegations followed and they were combined into a multidistrict litigation (MDL) or mass tort.

Whirlpool had argued that Judge Boyko should toss the design defect claim saying that it should only apply to products that present a “safety hazard” and that the plaintiffs did not offer evidence that all of the washing machine models had design defects.

However, according to the federal judge, “Whirlpool’s argument fails, however, because other cases reveal that Ohio law does not restrict a negligent design claim to only safety flaws.”

Judge Boyko cited a ruling he made in June 2007, in which he said that “a plaintiff may bring a negligent design claim to recover ‘economic loss . . . connected to alleged damage to or decreased value of a defective product’ — which loss may or may not be caused by a safety-related defect.”

In response to the second argument, Judge Boyko changed the class definition so it no longer includes all of Whirlpool’s washer models, but “only washing machine models that share ‘the essential alleged common defect of crevices in the tub and/or bracket that promote mold growth.'”

This still includes “’20 different Duet models, with at least two different tub designs, two different bracket designs, and a variety of optional self-cleaning cycles.'”

Judge Boyko certified the Class in the Whirlpool class action lawsuit in July 2010. It was affirmed by the Sixth Circuit Court of Appeals, and Whirlpool’s attempt to decertify the class was rejected in early September. 

Whirlpool also argued that the breach of implied warranty claim should also be tossed because it should only apply to safety defects, the plaintiffs are not able to “‘prove the Washers are unfit for ordinary use,'” and “Whirlpool ‘issued express written warranties,'” which negates an implied warranty claim.

Judge Boyko explained that “Ohio law does not restrict a warranty-in-tort claim to only safety flaws,” and that argument doesn’t stand.

As for the “ordinary use” argument, the Ohio federal judge says that it is not enough that the washer made it through its wash cycle “because their Duets gave off a moldy odor” and even though Allison and other plaintiffs used the washing machines for a couple of years before filing the class action lawsuit, they showed that they went to extensive lengths to continue to use “their Duets even though the machines did not produce clean-smelling clothes.”

And he says that the last argument fails because the “plaintiffs are ‘ordinary consumers’ who have no privity of contract with Whirlpool.”

The Whirlpool washing machine class action lawsuit trial is set to begin on Oct. 7.

The plaintiffs are represented by Jonathan D. Selbin, Jason L. Lichtman and Mark P. Chalos of Lieff Cabraser Heimann & Bernstein LLP, Robert T. Glickman of McCarthy Lebit Crystal & Liffman Co.  LPA, Steven A. Schwartz and Alison G. Gushue of Chimicles & Tikellis LLP, James C. Shah and Nathan Zipperian of  Shepherd Finkelman Miller & Shah LLP, Jonathan Shub of Seeger Weiss LLP, Richard J. Burke of the Complex Litigation Group LLC and the Law Office of Mark Schlachet.

Whirlpool is represented by Stephen M. Shapiro, Timothy S. Bishop, Jeffrey W. Sarles and Joshua D. Yount of Mayer Brown LLP,  Malcolm Wheeler, Galen Bellamy and Joel S. Neckers of Wheeler Trigg O’Donnell LLP, and F. Daniel Balmert and Anthony O’Malley of Vorys Sater Seymour & Pease LLP.

The Whirlpool Washing Machine Mass Tort is In re: Whirlpool Corp. Front-Loading Washer Products Liability Litigation, Case No. 1:08-wp-65000, in the U.S. District Court for the Northern District of Ohio.

UPDATE: On Oct. 30, 2014, a jury decided in favor of Whirlpool, finding that the company did not negligently design the front-loading washing machines and did not breach its warranty to consumers. Attorneys for the plaintiffs say they plan to appeal the verdict.