Judge Denies Cert. in Whirlpool Chemical Spill Class Action

On Dec. 3, a proposed Whirlpool chemical spill class action lawsuit was denied certification by an Arkansas federal judge, finding that he was not certain that a class action lawsuit would be a better choice for potential Class Members and plaintiffs than individual suits against Whirlpool Corp. This Whirlpool class action lawsuit alleges the home appliance company failed to clean up toxic chemicals from its refrigerator manufacturing plant, resulting in decreased value of surrounding property.

According to last week’s motion to dismiss the chemical spill class action lawsuit, U.S. District Judge P.K. Holmes III ruled that plaintiffs Scott Day and Glenda Wilson had not adequately argued why the individual Whirlpool chemical spill lawsuits could not be joined together individually in lieu of a class action lawsuit.

Given that the plaintiffs were not able to identify the total number of property owners to be included in the proposed subclasses, only identifying 104 properties allegedly affected by the Whirlpool chemical spill instead, Judge Holmes could not find enough reason to grant Class certification. Additionally, several individuals who filed separate Whirlpool chemical spill lawsuits have objected to the proposed class action lawsuit and have shown that they were able to join their cases without much difficulty.

Judge Holmes also took issue with Day and Wilson acting as the Class representatives, stating that because the Class would also potentially include landlords, property owners like the named plaintiffs could not represent a common issue or represent the interests of the Class as a whole.

Additionally, the judge was concerned with plaintiff Day’s choice of attorney, who publicly stated that he would agree to a settlement that would equal less than damages allegedly available. According to Judge Holmes:

“While there is no question that settlement is viewed as a favored outcome, when a plaintiff begins a lawsuit with the desire to negotiate settlement rather than the desire to be ‘made whole,’ and does not even press his attorney to conduct discovery to determine the likelihood of victory on the merits or to give some context to the terms of the settlement offer, the court is concerned that such a plaintiff will not vigorously prosecute the interests of a class.”

During September, Whirlpool and the plaintiffs of the chemical spill class action lawsuit filed a settlement motion, a motion that also asked the court to certify two subclasses of property owners who would be provided with tax recompense or payment depending on which subclass they belonged to. However, Judge Holmes denied Class certification to the Whirlpool class action lawsuit because he was concerned that with the alleged absence of a predominating common issue, determining restitution for the Class would be difficult.

Judge Holmes ruled, “If the proposed settlement does not go through, determining the amount of money and the actions necessary to remediate each individual property seems likely to rely heavily on facts that would need to be established on an individual basis.”

In May 2013, plaintiff Day initially filed the Whirlpool chemical spill class action lawsuit alleging that Whirlpool had admitted to city directors in Fort Smith that trichloroethylene, a toxic chemical used by the company to clean parts of metal refrigerators from 1967 to 1981, leaked into the surrounding groundwater of the Whirlpool facility. The contamination of the groundwater thanks to the Whirlpool chemical leak was not discovered until 2000.

The property value of the surrounding Fort Smith real estate area was allegedly reduced by 25 to 75 percent because of the alleged chemical spill.

The plaintiffs are represented by Kenneth R. Shemin of Shemin Law Firm PLLC.

The Whirlpool Chemical Spill Class Action Lawsuit is Day v. Whirlpool Corp., Case No. 2:13-cv-02164, in the U.S. District Court for the Western District of Arkansas.