U.S. Sixth Circuit - The FindLaw 6th Circuit Court of Appeals Opinion Summaries Blog

Whirlpool Wins 'Smelly Washer' Suit in Ohio; Ill. Trial Is Next

After about 10 years and two trips to the U.S. Supreme Court, Whirlpool's lawyers can sleep a little better. Last week, a federal jury in Ohio rejected claims brought by consumers who bought its "Duet" washing machines between 2001 and 2008.

This litigation has been going on for years and threatened to further restrict access to class action litigation.

What's That Smell?

Many consumers who bought Whirlpool's Duet washing machines between 2001 and 2008 noticed a funny smell coming from them. It was mold, and despite following Whirlpool's recommendations to clean the washing machines after using them, or to leave the doors open, the mold just wouldn't go away.

As it turned out, the Duet's self-cleaning system didn't clean all the parts of the washing machine. Some internal parts never got cleaned, and as a result, mold grew in the moist soil residue left inside. Consumers tried everything, including using a special cleaner made by Whirlpool just for this problem, but to no avail.

Genuine Class

Both the Sixth and Seventh Circuits allowed the cases to proceed as class actions. But Sears and Whirlpool appealed to the U.S. Supreme Court, arguing that there were lots of reasons why mold could develop. The Court vacated the Sixth Circuit's ruling and remanded in light of Comcast v. Behrend, a 5-4 opinion that mandated a higher evidentiary threshold for determining whether Rule 23's class action requirements had been met. This threshold would potentially "overlap with the merits of the plaintiff's underlying claim."

In 2013, the Sixth Circuit reconsidered the class action, and still affirmed class certification. Sears and Whirlpool again appealed to the Supreme Court, which declined to hear the case.

All that, by the way, was before anyone even got to the merits. Four years were spent just arguing over whether this was a class action. The trial on the merits lasted three weeks, and the jury concluded in two hours that Whirlpool wasn't liable for negligent design and breach of implied warranty.

This isn't the end, though, oooh no. There's a simultaneous case going on in the Seventh Circuit, one in which Judge Richard Posner approvingly allowed the class action to proceed. He's notoriously in favor of class actions and chided Sears and Whirlpool a few years ago for trying to conflate the merits with the class action certification. (This seems to stand in opposition to Behrend, which implied that a court would have to look into the merits to determination if Rule 23's requirements were met.)

The Illinois trial is scheduled for July 2015, according to The Plain Dealer.

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