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Whirlpool Defeats Multi-State Certification Bid Reliant on “Kitchen Sink” Expert Report

Storm_Hurricane_iStock_000022250449XLargeBy Reena R. Bajowala 

Recently, a federal court in Chicago rejected an attempt to certify multi-state classes of consumers who purchased allegedly defective ovens manufactured by the Whirlpool Corporation.  The plaintiffs claimed that the ovens had a design defect rendering them inoperable after one or more self-cleaning cycles.  Plaintiff moved for class certification, relying almost exclusively on the opinion of proffered expert Albert de Richemond, a professional engineer with a master’s degree from Virginia Tech, as proof of a common defect in all ovens purchased by class members (i.e, as proof of commonality).  One of the key lessons from Wal-Mart Stores Inc. v. Dukes, 564 U.S. 338, 350 (2011), was that commonality “is not the raising of common questions – even in droves – but rather the capacity of a classwide proceeding to generate common answers apt to drive the resolution of the litigation.”

De Richemond’s report addressed a confluence of alleged defects relating to the thermostat, the thermo-regulator, lack of proper insulation, heat-resistance of component parts, excessive temperatures for the self-cleaning cycle, insufficient cooling fans and various ineffective fuses.  The class representatives’ class certification and Daubert briefing generally followed suit, referring to this “undifferentiated mass of potential problems” as the defect.  

Whirlpool filed a Daubert motion, arguing that De Richemond’s “kitchen sink” testimony was unhelpful because it failed to map to plaintiffs’ argument that an inherent design defect common to all ovens causes overheating and failure during the self-cleaning cycle.  At the Daubert hearing, De Richemond admitted that he could not pinpoint what caused a particular oven to fail; instead he could simply opine that there are many potential reasons for the failure.  

Citing to Wal-Mart, the Court barred De Richemond’s testimony because it did not help the Court determine whether there is a common question as to the existence of a defect that it will be able to resolve “in one stroke.”  Rather than providing proof of a common answer capable of driving the litigation forward, the plaintiffs “present a superficial common question of whether the [o]vens are defective.”  Without the De Richmond report, the plaintiffs “lack[ed] the glue to hold their proposed class together.”  Accordingly, the Court denied the motion for class certification.

Cates v. Whirlpool Corp., 2017 WL 1862640 (N.D. Ill. May 9, 2017) (slip op.).