Defense Verdict in First Whirlpool Mold Litigation Case Posted on November 19, 2014 by Larry Bodine Purchasers complained their Whirlpool Duet, Duet Sport, and Duet HT machines were negligently designed and accumulated mold. In the first of many federal class action suits pending against Whirlpool Corp, a federal jury in Ohio rejected a class action charging Whirlpool’s washing machines developed mold and odors. Commenting on the recent verdict, plaintiffs’ lead counsel, Jonathan Selbein stated, “We think there are good grounds for appeal based on pre-trial rulings that prevented us from showing the jury very compelling evidence. . . evidence of the health risks Whirlpool itself recognized that mold in its Duet washers could cause. We intend to appeal.” According to the Master Class Action Complaint, consumers asserted three federal claims: Tortious breach of warranty Negligent design and failure to warn Breach of express warranty The plaintiffs also raised state law claims of unjust enrichment and violation of the Consumer Protection/Deceptive Practices Act. Ohio Trial The federal jury trial in Ohio focused on class action members who purchased 20 Whirlpool Duet, Duet Sport, and Duet HT Brand front loading washing machines manufactured between 2001 and 2008. The buyers complained that their machines were negligently designed and accumulated mold. Whirlpool consistently made attempts to renew its motion to contest class action status, which was granted in July 2010. Whirlpool argued that the existence of mold in the models was rare and the majority of Duet owners did not complain about a mold problem. Whirlpool also claimed, because the machines were built on different engineering platforms the plaintiffs did not suffer a common injury. Presiding U.S. District Court Judge Christopher Boyko denied the motion, stating the class members shared common injuries and established causation. After three weeks of trial, the Ohio jury found the units were not negligently designed. Whirlpool class action suits are pending in several states including Illinois, Massachusetts, Florida, North Carolina, and California. An Illinois trial is set for July 2015 involving the Kenmore washers, manufactured by Whirlpool for Sears. Washing Machine Defects Consumers complained that the Duet Whirlpool washers expelled noxious odors, cleaned inadequately, and accumulated mold and bacterial debris in the crevices. Customers began complaining to Whirlpool about the mold as early as 2003; on average Whirlpool received two to three calls per day. One of the named plaintiffs in the Ohio suit stated mold started growing in her washing machine nearly six months after purchase. In response to the complaints, Whirlpool made several design changes to the Duet washing machines. Whirlpool removed crevices in the connecting brackets and added sanitary cycles, an internal fan, and a maintenance cycle. Despite the mechanical changes, buyers complained the solutions offered by Whirlpool did not solve the issue. Whirlpool instructed consumers to purchase Whirlpool’s Afresh cleaning agent, run extra wash cycles, and clean the rubber doors with bleach after each use. Plaintiffs’ Burden of Proof To be successful in a claim for tortious breach of warranty, plaintiffs needed to have satisfied the following elements: A defect existed in the product manufactured or sold by Whirlpool. A defect existed at the time the product left Whirlpool’s hands. The defect was a direct and proximate cause of the plaintiffs’ injury or loss. To support a negligent design claim, the plaintiffs needed to have satisfied the following: Whirlpool had a duty to design against reasonably foreseeable hazards. There was a breach of that duty. The injury was a proximate cause of the breach. For a negligent failure to warn claim, the plaintiffs had to establish: The manufacturer had a duty to warn. The duty was breached. The plaintiffs’ injury proximate resulted from the breach of duty. Additionally, the plaintiff had to show that if Whirlpool was exercising ordinary care the company knew or should have known the machines were defective and failed to warn consumers about the risk. This case is: In Re: Whirlpool Corp. Front-Loading Washer Products Liability Litigation No. 1:08-WP-65000 in the U.S. District Ct. Northern District of Ohio. The plaintiffs are represented by lead attorneys Jonathan Selbin of New York, Richard Heimann and Mark Chalos of Tennessee, Lieff Cabraser Heimann & Bernstein LLP. Attorneys for Defendant Whirlpool Corporation: Michael T. Williams, Malcolm E. Wheeler, Galen D. Bellamy, Joel S. Neckers, Theresa R. Wardon, Wheeler Trigg O’Donnell LLP of Denver, CO. F. Daniel Balmert & Anthony J. O’Malley Vorys, Sater, Seymour and Pease LLP of Cleveland, OH.
