Class action fails to rise vs Whirlpool over overheating self-cleaning ovens

By Scott Holland | May 12, 2017

A federal judge has denied class certification to Whirlpool customers who said the company sold them defective, overheating ovens, saying their expert witness couldn’t help them establish that all of their oven problems arose from the same source.

A federal judge has denied class certification to Whirlpool customers who said the company sold them defective, overheating ovens, saying their expert witness couldn’t help them establish that all of their oven problems arose from the same source.

In an opinion issued May 9 in Chicago, Judge Amy J. St. Eve said, despite expert testimony, she would grant Whirlpool’s request and deny class certification to Beth Kljajic and Kathleen Cates, who said the company’s Vision II platform wall ovens have an inherent defect that results in instability during self-cleaning cycles.

The women sought class certification for customers in 15 states and the District of Columbia who purchased a Whirlpool oven with a self-cleaning mechanism, and a different class for those who purchased those ovens from IKEA. Kljajic was pursuing breach of express warranty and violation of the Magnuson-Moss Warranty Act. They also sought classes for Illinois residents and one for Illinois IKEA customers, under which they had additional claims for violation of the Illinois Consumer Fraud Act, breach of implied warranty and unjust enrichment. They also sought a South Carolina class to pursue an unjust enrichment claim.

Alternatively, the women sought certification of injunctive relief classes, both multi-state and multi-state IKEA customers. All claims related to the Vision II platform, which involved single, double and combination microwave ovens in 24-, 27- and 30-inch widths sold under the Whirlpool, KitchenAid and IKEA brands. More than 2 million ovens in 322 different base models have been sold from 1998, though production ended in 2014.

The women relied on the opinion of expert witness Albert de Richemond, but Whirlpool moved to exclude that testimony under federal evidence rules and the 1993 U.S. Supreme Court opinion in Daubert v. Merrell Dow Pharmaceuticals, Inc. St. Eve said de Richemond testified at an April 17 Daubert hearing.

St. Eve noted de Richemond’s input was intended to establish “an inherent defect in every oven,” as opposed to one confined to a subset. But, she noted, the women “continually moved the goalpost with respect to identifying a common defect. The operative complaint in this case lists a wide variety of defect candidates.” She noted one suggestion “the defect is a confluence of several design issues,” other parts implying the defect was related to airflow and ultimately defining “the defect broadly as the Ovens being ‘prone to overheat and lock up when the self-cleaning cycle is used.’ ”

But the description changed in a reply brief, suggesting the ovens fail because the design leads to “ineffective heat flow regulation and removal” during self-cleaning, at which time temperatures exceed 850 degrees. And the theory changed again during the April 17 hearing, during which de Richemond said the defect had multiple possible causes.

In arguing to suppress de Richemond’s testimony, Whirlpool did not dispute his credibility, but rather said he offered no proof of a common defect and that his opinions were unreliable. St. Eve agreed, noting “he failed to disclose any methodology, let alone one that is reliable in his field, to substantiate his hypotheses regarding a common Oven defect.” She also said he did not provide details to support his opinions that the problems do not occur in the ovens of other manufacturers.

“There is too large an analytical gap between de Richemond’s methodology and his conclusion that all 2 million ovens suffer from a common defect,” St. Eve wrote, leading her to disqualify his expert testimony.

With that decision made, St. Eve said the plaintiffs failed to comply with Rule 23 commonality requirements because they have not sufficiently alleged a defect common to every oven sold to putative class members.

Plaintiffs were represented in the action by attorneys with the firms of Cuneo Gilbert & LaDuca LLP, of Washington, D.C.; Sullivan Law LLC, of Bloomington, Ind.; Lite DePalma Greenberg LLC, of Chicago; Jones Ward Plc, of Louisville, Ky.; and Onder Shelton, of Webster Groves, Mo., as well as attorney Francis Joseph Flynn Jr., of Los Angeles.

Whirlpool was defended by the firms of Wheeler Trigg O’Donnell LLP, of Denver, and Barnes & Thornburg, of Chicago.

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Organizations in this Story

Barnes & Thornburg LLP Cuneo Gilbert & LaDuca Jones Ward PLC Lite DePalma Greenberg LLP U.S. District Court for the Northern District of Illinois Wheeler Trigg O'Donnell LLP Whirlpool Corporation

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