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Kljajic v. Whirlpool Corp.

United States District Court, N.D. Illinois, Eastern Division

May 9, 2017

BETH KLJAJIC & KATHLEEN CATES, Individually and On Behalf of All Others Similarly Situated, Plaintiffs,
v.
WHIRLPOOL CORPORATION, Defendant.

          MEMORANDUM OPINION AND ORDER

          AMY J. ST. EVE UNITED STATES DISTRICT COURT JUDGE.

         Plaintiffs Beth Kljajic (“Kljajic”) and Kathleen Cates's (“Cates”) (collectively, “Plaintiffs”) have moved to certify various classes of consumers who purchased allegedly defective ovens manufactured by Defendant Whirlpool Corporation (“Whirlpool”). (R. 109.) In support of their motion for class certification, Plaintiffs rely on the expert opinion of Albert de Richemond for proof of a common defect in all ovens purchased by class members. Whirlpool has moved to exclude de Richemond's opinion under the Federal Rules of Evidence and Daubert v. Merrell Dow Pharmaceuticals., Inc., 509 U.S. 579 (1993). (R. 134.) On April 17, 2017, the Court held a Daubert hearing in which de Richemond testified. For the following reasons, the Court grants Whirlpool's Daubert motion and denies Plaintiffs' class-certification motion.

         LEGAL STANDARD

         “[W]hen an expert's report or testimony is critical to class certification . . . a district court must conclusively rule on any challenge to the expert's qualifications or submissions prior to ruling a class certification motion.” Am. Honda Motor Co. v. Allen, 600 F.3d 813, 815-16 (7th Cir. 2010) (per curiam); see also Mednick v. Precor, Inc., No. 14 C 3624, 2016 WL 3213400, at *3 (N.D. Ill. June 10, 2016); In re Groupon, Inc. Sec. Litig., No. 12 C 2450, 2014 WL 2035853, at *2 (N.D. Ill. May 16, 2014). De Richemond's opinion regarding the existence of a common defect is central to at least Plaintiffs' proof of commonality and predominance. Fed.R.Civ.P. 23(a)(2), (b)(3). The Court therefore must resolve this motion before turning to Plaintiffs' motion for class certification.[1]

         I. Rule 702 and Daubert

         “A district court's decision to exclude expert testimony is governed by Federal Rules of Evidence 702 and 703, as construed by the Supreme Court in [Daubert].” Brown v. Burlington N. Santa Fe Ry. Co., 765 F.3d 765, 771 (7th Cir. 2014). “The rubric for evaluating the admissibility of expert evidence considers whether the expert [is] qualified, whether his methodology [is] scientifically reliable, and whether the testimony would . . . assist[] the trier of fact in understanding the evidence or in determining the fact in issue.” Hartman v. EBSCO Indus., Inc., 758 F.3d 810, 817 (7th Cir. 2014); see also Higgins v. Koch Dev. Corp., 794 F.3d 697, 704 (7th Cir. 2015) (“Rule 702 and Daubert require the district court to determine whether proposed expert testimony is both relevant and reliable.”). Although the Seventh Circuit reviews “the district court's application of Daubert . . . de novo, ” if “the court adhered to the Daubert framework, then its decision on admissibility is reviewed for abuse of discretion.” Estate of Stuller v. United States, 811 F.3d 890, 895 (7th Cir. 2016).

         A district court's evaluation of expert testimony under Daubert does not “take the place of the jury to decide ultimate issues of credibility and accuracy.” Lapsley v. Xtek, Inc., 689 F.3d 802, 805 (7th Cir. 2012); see also Ortiz v. City of Chicago, 656 F.3d 523, 536 (7th Cir. 2011) (“The admissibility determination is not intended to supplant the adversarial process, and so even ‘shaky' testimony may be admissible.”). Once it is determined that “the proposed expert testimony meets the Daubert threshold of relevance and reliability, the accuracy of the actual evidence is to be tested before the jury with the familiar tools of ‘vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof.'” Lapsley, 689 F.3d at 805 (quoting Daubert, 509 U.S. at 596); see also Manpower, Inc. v. Ins. Co. of Pa., 732 F.3d 796, 806 (7th Cir. 2013) (“The soundness of the factual underpinnings of the expert's analysis and the correctness of the expert's conclusions based on that analysis are factual matters to be determined by the trier of fact, or, where appropriate, on summary judgment.” (quoting Smith v. Ford Motor Co., 215 F.3d 713, 718 (7th Cir. 2000))).

         A district court's inquiry under Daubert is a flexible one and district courts have wide latitude in performing their gate-keeping function under the Federal Rules of Evidence. See Kumho Tire Co. v. Carmichael, 526 U.S. 137, 141 (1999); Hartman, 758 F.3d at 818. “[T]he key to the gate is not the ultimate correctness of the expert's conclusions, ” rather, “it is the soundness and care with which the expert arrived at her opinion[.]” C.W. ex rel. Wood v. Textron, Inc., 807 F.3d 827, 834 (7th Cir. 2015) (second alteration in original) (quoting Schultz v. Akzo Nobel Paints, LLC, 721 F.3d 426, 431 (7th Cir. 2013)). The “proponent of the expert bears the burden of demonstrating that the expert's testimony would satisfy the Daubert standard” by a preponderance of the evidence. Lewis v. CITGO Petroleum Corp., 561 F.3d 698, 705 (7th Cir. 2009); see also United States v. Saunders, 826 F.3d 363, 368 (7th Cir. 2016) (“[F]or expert testimony to be admissible, the proponent of the evidence must establish that the expert's testimony is reliable (and relevant) by a preponderance of the evidence.”).

         II. Class Certification

         To obtain class certification under Federal Rule of Civil Procedure 23, a plaintiff must satisfy each requirement of Rule 23(a)-numerosity, commonality, typicality, and adequacy of representation-and one subsection of Rule 23(b). McCaster v. Darden Rests., Inc., 845 F.3d 794, 800 (7th Cir. 2017); Harper v. Sheriff of Cook Cty., 581 F.3d 511, 513 (7th Cir. 2009). Here, Plaintiffs seek certification under Rule 23(b)(3), which requires that “questions of law or fact common to class members predominate over any questions affecting individual members” and that a “class action is superior to other available methods for fairly and efficiently adjudicating the controversy.” Fed.R.Civ.P. 23(b)(3); Bell v. PNC Bank, N.A., 800 F.3d 360, 373 (7th Cir. 2015). Plaintiffs alternatively seek certification under Rule 23(b)(2), which requires that “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” Chi. Teachers Union, Local No. 1 v. Bd. of Educ., 797 F.3d 426, 441 (7th Cir. 2015); Porter v. Pipefitters Ass'n Local Union 597, 208 F.Supp.3d 894, 904 (N.D. Ill. 2016).[2] Plaintiffs carry the burden of demonstrating compliance with Rule 23 by a preponderance of the evidence. Mulvania v. Sheriff of Rock Island Cty., 850 F.3d 849, 859 (7th Cir. 2017); Messner v. Northshore Univ. Health Sys., 669 F.3d 802, 811 (7th Cir. 2012).

         The Court has “broad discretion to determine whether certification of a class-action lawsuit is appropriate.” Mulvania, 850 F.3d at 859 (quoting Chavez v. Ill. State Police, 251 F.3d 612, 629 (7th Cir. 2001)). Nevertheless, class certification is only appropriate if the Court “‘is satisfied, after a rigorous analysis, that the prerequisites' for class certification have been met.” Bell, 800 F.3d at 373 (quoting CE Design, Ltd. v. King Architectural Metals, Inc., 637 F.3d 723 (7th Cir. 2011)); Schneider v. Ecolab, Inc., No. 14 C 01044, 2016 WL 7840218, at *3 (N.D. Ill. Sept. 2, 2016). In conducting its Rule 23 analysis, courts should “not turn the class certification proceedings into a dress rehearsal for the trial on the merits.” Messner, 669 F.3d at 811. Where an issue affects class certification, however, “a court may not simply assume the truth of the matters as asserted by the plaintiff.” Id. “Rule 23 does not set forth a mere pleading standard.” Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011). Instead, “[i]f there are material factual disputes that bear on the requirements for class certification, the court must ‘receive evidence if only by affidavit and resolve the disputes before deciding whether to certify the class.'” Bell, 800 F.3d at 377 (emphasis in original) (quoting Szabo v. Bridgeport Machs., Inc., 249 F.3d 672, 676 (7th Cir. 2001)). Thus, the class certification inquiry “[f]requently . . . will entail some overlap with the merits of the plaintiff's underlying claim.” Wal-Mart, 564 U.S. at 350-51; see also Comcast Corp. v. Behrend, 133 S.Ct. 1426, 1432 (2013); Schneider, 2016 WL 7840218, at *3.

         BACKGROUND

         I. Plaintiffs' Motion for Class Certification on the Basis of a Common Defect

         Plaintiffs seek to certify various classes based on an alleged defect in Whirlpool's Vision II Platform Wall Ovens (“Ovens”). Specifically, Plaintiffs explain that “the core operative facts underlying [their] claims are that the Ovens suffer from the same inherent Defect that cause[s] the Ovens to become unusable when the self-cleaning function is run, ” (R. 167, Pls.' Reply Supp. Mot. Class Cert., 3), and that the Ovens “are prone to overheat and lock up when the self-cleaning cycle is used, leaving the[] Ovens locked and unusable, ” (R. 114, Pls.' Mem. Supp. Mot. Class Cert., 1). According to Plaintiffs, the Vision II Platform Ovens “us[e] the same chassis” as well as the “same self-cleaning feature, ” which functions by heating the oven to a very high temperature to break down organic components into ash. (Id. at 2.) Due to the high oven temperature during self-cleaning, which purportedly reaches approximately 855 degrees Fahrenheit, Plaintiffs contend that “appropriate venting of the super-heated air is critical to maintain safe operation of the Ovens.” (Id. at 3.)

         In their Second Amended Class Action Complaint, Plaintiffs seek certification under Federal Rule of Civil Procedure 23 on behalf of the following class: “Any and all individuals who purchased, at retail price and for personal use, a Whirlpool Oven with a self-cleaning mechanism.” (R. 49, Second Am. Class Action Compl., ¶ 48.) They bring claims for breach of warranty, consumer fraud, and unjust enrichment. (See R. 114 at 24-27.)

         In their brief supporting their class certification motion, Plaintiffs are more precise about the classes they seek to represent:

         Rule 23(b)(3) Classes

• All individuals residing in the States identified in Exhibit 1 who purchased a Whirlpool Oven with a self-cleaning mechanism (the “Multi-State Class”).[3]
• All individuals residing in the States identified in Exhibit 1 who purchased a Whirlpool Oven sold by IKEA with a self-cleaning mechanism (the “IKEA Multi-States Class”).

(R. 114 at 9.) For these classes, Kljajic pursues claims for breach of express warranty and violation of the Magnuson-Moss Warranty Act (“MMWA”). (Id.) Plaintiffs also seek to certify classes of:

• All individuals who purchased a Whirlpool Oven with a self-cleaning mechanism in the state of Illinois (the “Illinois Class”).
• All individuals who purchased a Whirlpool Oven sold by IKEA with a self-cleaning mechanism in the state of Illinois (the “IKEA Illinois Class”).

(Id.) For these classes, Kljajic pursues claims for violation of the Illinois Consumer Fraud Act (“ICFA”), violation of the MMWA, breach of implied warranty, breach of express warranty, and unjust enrichment. (Id.) In addition to the above classes, Plaintiffs seek to certify a class of:

• All individuals who purchased a Whirlpool Oven with a self-cleaning mechanism in the state of South Carolina (the “South Carolina Class”).

(Id.) For this class, Plaintiffs pursue a claim of unjust enrichment. (Id.)

         Alternative Rule 23(b)(2) Classes

         Plaintiffs also seek, in the alternative, to certify the following injunctive classes:

• All individuals residing in the States identified in Exhibit 1 who purchased a Whirlpool Oven with a self-cleaning mechanism (the “Injunctive Multi-State Class”).
• All individuals residing in the States identified in Exhibit 1 who purchased a Whirlpool Oven sold by IKEA with a self-cleaning mechanism (the “Injunctive Multi-State IKEA Class”).

(Id. at 9-10.) For these classes, Plaintiffs pursue breach of express warranty and MMWA claims. (Id. at 10.)

         Issues Classes Under Rule 23(c)(4)

         In addition, Plaintiffs seek “to certify all issues subject to common proof in accordance with Rule 23(c)(4). (Id.) The common issues Plaintiffs identify are “whether the Ovens contain a defect in that the Ovens are prone to fail when the self-cleaning cycle is used, ” “whether the defect existed at the time it left Defendant's control, ” and “whether Defendant concealed the defect from Plaintiffs and the proposed class.” (Id. at 34; see also Id. at 22-23.)

         Plaintiffs identify “[c]ommon evidence of the existence of a Defect” as a common issue for each class action claim. (See Id. at 24-27.) Plaintiffs put forth the expert opinion of Albert de Richemond to establish the common defect in the Ovens. They cite, for example, de Richemond's opinions in describing “the defect at issue” in their opening class certification brief, (see Id. at 3), as well as in their reply class certification brief, (see, e.g., R. 167 at 1). In short, Plaintiffs point to de Richemond's opinions to tie the class action claims together by establishing an inherent defect in every Oven rather than, for example, a defect confined to some subset of Ovens. (See, e.g., id. (discussing a defect “common to the Ovens” and citing de Richemond's reports).)

         Plaintiffs have continually moved the goalpost with respect to identifying a common defect. The operative complaint in this case lists a wide variety of defect candidates. Specifically, Plaintiffs define the term “Defect(s)” in the complaint as “including but not limited to, one or more of the following”:

(a) the Ovens lack a proper thermostat that regulates the self-cleaning temperature during self-cleaning; (b) the Whirlpool Ovens lack proper insulation to prevent the excessive heat from damaging component parts during the self-cleaning process; (c) the thermoregulator does not regulate the temperature of the Ovens during the self-cleaning cycle; (d) the Ovens and their component parts cannot withstand the heat generated by the self-cleaning cycle; (e) the Ovens contain insufficient fan cooling near electronics; (f) the Ovens are built with a fuse that is insufficiently thermal tolerant; and/or (g) the Oven's self-cleaning cycle creates temperatures that exceed the heat necessary for an Oven to be self-cleaned.

(R. 49 at ¶ 3.)

         In their opening brief supporting their motion for class certification, Plaintiffs are somewhat coy in specifically identifying the defect in the Ovens. At times, they appear to suggest that the defect is a confluence of several design issues. (R. 114 at 3 (“Whirlpool made Ovens with several design issues that combine to cause the Ovens to fail during self cleaning.”

         (quoting R. 115-5, de Richemond Rebuttal Report, 1)).) At other points, Plaintiffs suggest that the defect was related to air flow. (See Id. at 4 (“Perhaps the biggest fault, which was not addressed by Whirlpool, was that air pulled into the oven-surrounding enclosure was pre-heated by the air moving upward through the door.” (quoting R. 115-5 at 2)).) At other times still, Plaintiffs define the defect broadly as the Ovens being “prone to overheat and lock up when the self-cleaning cycle is used.” (Id. at 1.) Indeed, it is this final description of the defect that Plaintiffs use to create the defined term “Defect” in their opening class certification brief. (Id.)

         In their reply brief, however, Plaintiffs alter their description of the defect, offering a more precise picture. Tellingly, they change the defined term “Defect”-which they had already changed during the time between the filing of the second amended complaint and the filing of the motion for class certification-to “poor airflow through the oven-surrounding enclosure.” (R. 167 at 1 (quoting R. 115-5 at 1); see also Id. at 4-5 (“[A]ll Ovens share the common, inherent characteristic of having insufficient airflow to accommodate the heat generated by the self-cleaning cycle that leaves the Ovens prone to shut down and become unusable.”).) Similarly, Plaintiffs contend that “[t]he central, common issue in this litigation is that Whirlpool's Ovens fail when the self-cleaning function is run because the overarching design results in ‘ineffective heat flow regulation and heat removal.'” (Id. at 1 (quoting R. 115-4, de Richemond Report, 11).) In short, Plaintiffs' reply class certification brief embraces the notion that there is a particular, identifiable design defect-an airflow problem-“that cause[s] the Ovens to become unusable when the self-cleaning function is run.” (Id. at 3.) In other words, according to the reply brief, failure during self-cleaning is not, itself, the defect. Rather, the defect is a single, identifiable airflow problem common to all Ovens that causes failure during self-cleaning.

         By the de Richemond Daubert hearing, however, Plaintiffs appeared to have once again changed their theory. They represented that the defect was “a total shutdown of the oven during the running of the self-cleaning feature”-though it was “affected by several factors or elements.” (R. 212, de Richemond Daubert Hr'g Tr., 5.) This is a retreat from the far more precise formulation of the defect in Plaintiffs' reply brief for class certification. Similarly, de Richemond testified on the day of the hearing that the defect was “[t]hat the oven overheats and shuts down during the self-cleaning cycle.” (Id. at 75.) He also testified that there were multiple possible causes of this defect. (Id. at 77.)

         II. The Ovens

         A. The Vision II Platform and Design Differences

         Plaintiffs' claims relate to all ovens on Whirlpool's Vision II platform. (R. 114 at 2.) Whirlpool used the Vision II platform in manufacturing ovens for three different brands- Whirlpool, KitchenAid, and IKEA-in three configurations-single, double, and combination microwave oven-in three different widths-24-, 27-, and 30-inches. (R. 136-2, Ohlsson Decl., ¶ 4.) Whirlpool began selling the Ovens in 1998 and continues to sell them to this day, although it ceased production of most IKEA Vision II ovens in 2014 and most KitchenAid and Whirlpool ovens in 2007 and 2012, respectively. (Id. at ¶¶ 4, 24.)[4] In total, Whirlpool has sold nearly 2, 000, 000 Ovens in the United States and has manufactured 322 different base models of Vision II wall ovens. (Id. at ¶¶ 21, 59.) Some of the Ovens have different components. (See Id. at ¶¶ 23-24.) IKEA ovens, for example, were only manufactured in 30-inch widths, have since 2009 used a control thermal fuse[5] with an 84°C set point, while Whirlpool brand ovens used a control thermal fuse of either 93°C or 110°C since 2011. (Id.) The temperature limit of the electronic control system in an IKEA oven is 20°C less than in Whirlpool and KitchenAid ovens, and IKEA ovens have a control board split from the user interface while the other brand ovens do not. (Id.) Whirlpool has also used a variety of cooling fans in two different sizes and six different RPMs in manufacturing the Ovens. (Id.) Additionally, Whirlpool has used different TOD[6] set points-130°C and 120°C. (Id.) Based on these and other differences, Whirlpool contends that the Ovens have at least 63 materially different designs. (R. 130, Def.'s Opp'n Mot. Class Cert., 4-5.) Plaintiffs do not contest that the Ovens embody different design features.

         B. Plaintiffs' Ovens

         Named Plaintiffs Kljajic and Cates owned different ovens and had different experiences with them with respect to self-cleaning. Kljajic bought an IKEA Datid oven in August 2013, (R. 117-24, IKEA Invoice), which malfunctioned during a self-clean cycle she ran two days after moving into her condominium, (R. 117-2, Kljajic Dep., 76). Kljajic received a replacement oven-also a Datid oven. (Id. at 179; R. 115-7, Taylor Report, fig.13.) She did not experience any problems with her new oven, but she never ran the self-cleaning function on it. (R. 117-2 at 10, 182.)

         Cates bought a KitchenAid double oven in 2004. (R. 117-3, Cates Dep., 10.) Cates had her oven for approximately ten years before it malfunctioned. (Id. at 117.) During this ten-year period, she ran up to three self-cleaning cycles without incident (Cates testified that she ran two or three self-cleans). (Id. at 116-17.) After her oven malfunctioned, it was repaired. (Id. at 10.) Since the repair, she has not run the self-cleaning cycle and reported that her oven had a difficult time maintaining a uniform temperature while cooking, although this issue has improved. (Id. at 145, 251-55.)

         C. UL 858 Testing

         Whirlpool tested its Ovens using Underwriters Laboratory (“UL”) 858 protocols. (R. 136-2 at ¶ 6.) UL 858 is a safety standard “that requires manufacturers to meet certain temperature-management standards to ensure that ovens do not overheat to the point of posing a danger to people or property.” (R. 130 at 8 (citing R. 136-2 at ¶¶ 7-12).) UL 858 calls for, among other things, a “normal temperature” test in which an oven's components are monitored while running a self-clean cycle. (R. 136-2 at ¶ 7.) During testing, Whirlpool “records the peak temperatures reached by various components . . . and compares the[m] to the UL-approved temperature ratings.” (Id.) UL 858 testing shows the temperature margins of components-the difference between the maximum temperature reached during a self-clean cycle and the set point (or maximum allowable temperature) of that component. (Id. at ¶ 12.) The temperature margin of the thermal fuse and TOD is the difference between their maximum temperature during a self-clean cycle and the temperature at which they “will trip and cut power to the heating elements long before other oven surfaces reach unsafe temperatures or components are damaged.” (See id.)

         “Before Whirlpool makes changes to ovens with the UL mark[, ] . . . it must consult with UL representatives about the proposed changes and whether additional testing is required for the oven model to obtain or maintain UL listing status.” (Id. at ¶ 10.) If a change will potentially impact component or surface temperatures, the ovens undergo additional testing. (Id.)

         Whirlpool has successfully conducted UL 858 tests on Vision II platform ovens. The tests show that the Ovens completed self-cleaning without tripping thermal fuses and/or TODs. (Id. at ¶¶ 12-18.) In 2002, for example, Whirlpool conducted “normal temperature” testing of a KitchenAid 30-inch double oven, and the temperature margins were 36°C for the TOD and 46°C for the thermal fuse. (Id. at ¶ 14.) In 2003, during testing of a different KitchenAid 30-inch double, the TOD and thermal fuse margins were 24°C and 42°C respectively. (Id. at ¶ 15.) Whirlpool reports similar results from tests in subsequent years of different ovens. (Id. at ¶¶ 16-17.) Testing of IKEA ovens in 2008, for example, showed TOD margins of 17°C and 18°C. (Id. at ¶ 17.) Testing on other IKEA models in 2008 showed TOD margins above 20°C. (Id.) Testing on another IKEA oven in 2009 using an in-wall installation showed a TOD margin of 23°C and a thermal-fuse margin of 21°C. (Id.) Testing on the same oven using an under-counter installation yielded a TOD margin of 21°C and a thermal-fuse margin of 19°C. (Id.) When the same oven was tested on a self-clean cycle with a cooktop running, the TOD margin was 17°C and the thermal-fuse margin was 14°C. (Id.) All of these 2009 tests were successful. (Id.) Whirlpool also has other UL 858 data showing successful self-clean cycles for KitchenAid and Whirlpool ovens. (Id. at Ex. 7)

         D. Technical Service Pointers ...


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