U.S. Supreme Court cert. petition to watch: Whirlpool Corp. v. Glazer

In September 2012, a cert. petition was filed in the U.S. Supreme Court in a case worth watching, Whirlpool Corp. v. Glazer, No. 12-322.  The case has been relisted twice as of January, and is apparently being held pending resolution of another matter, probably Comcast Corp. v. Behrend, No. 11-864 (argued on November 5). 

In Glazer, the Sixth Circuit affirmed the district court's order granting class certification of claims for breach of warranty, negligent design, and negligent failure to warn under Ohio law. In re Whirlpool Corp. Front-Loading Washer Products Liab. Litig., 678 F.3d 409 (6th Cir. 2012).

A brief excerpt:

The case involves multi-district litigation concerning alleged designdefects in Whirlpool's Duet®, Duet HT®, Duet Sport®, and Duet Sport HT®front-load washing machines (“the Duets”).  Named plaintiffs Gina Glazer and Trina Allison alleged on behalf ofthe class that the Duets do not prevent or eliminate accumulatingresidue, which leads to the growth of mold and mildew in the machines,ruined laundry, and malodorous homes.

....

Based on the evidentiary record, the district court properly concludedthat whether design defects in the Duets proximately caused mold ormildew to grow and whether Whirlpool adequately warned consumers aboutthe propensity for mold growth are liability issues common to the plaintiff class.These issues are capable of classwide resolution because they arecentral to the validity of each plaintiff's legal claims and they willgenerate common answers likely to drive the resolution of the lawsuit.

Whirlpool asserts that proof of proximate cause will require individualdetermination, but the record shows otherwise. Whirlpool's owndocuments confirm that its design engineers knew the mold problemoccurred despite variations in consumer laundry habits and despiteremedial efforts undertaken by consumers and service technicians.Plaintiffs' expert, Dr. Gary Wilson, opined that consumer habits and thehome environment in which a Duet sits could influence the amount ofbiofilm buildup, but those factors were not the underlying cause ofbiofilm buildup. Whirlpool contends that Dr. Wilson did not evaluatelater design changes to the Duets to see if they rectified the moldproblem. As we read the pertinent testimony and expert report, Dr.Wilson acknowledged that Whirlpool made some changes to the “Access”platform tub design, but there continued to be other areas in themachine that collected debris. He also examined a new “Horizon”platform washer and found that it still had cavities on the inside ofthe tub exposed to the water side, increasing the likelihood of biofilmcollection. Dr. Wilson testified that even removing those cavitieswould not eliminate the biofilm problem.See Samuel–Bassett v. KIA Motors Am., Inc., 34 A.3d 1, 13 (Pa. 2011)(rejecting claim that design changes defeated commonality andpredominance where modifications did not significantly alter the basicdefective design).

Id. at 412, 419 (footnote omitted).

A copy of Whirlpool's cert. petition is available at this link. The respondents' brief is here and the reply brief is here.