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Seventh Circuit Revisits Washing Machine Defect Class Action in Light of Supreme Court Ruling – Butler v. Sears, Roebuck & Co.

By August 23, 2013July 17th, 2019Product Liability

Last fall, I wrote here as a St. Louis products liability attorney about a defective washing machine case out of the Seventh U.S. Circuit Court of Appeals. That case had two classes of plaintiffs with different allegations against Sears, the maker of their Whirlpool washing machines, and the district court had only certified one class. The Seventh Circuit upheld the certification for that class and reversed the denial for the other class. But the U.S. Supreme Court sent the case back for reconsideration after it decided Comcast Corp. v. Behrend, which reversed certification for cable subscribers based on their damages model. In its new airing, the Seventh reaffirmed its prior ruling in Butler v. Sears, Roebuck & Co., saying that there was still a single, predominating issue of liability to be decided for both classes.
The lawsuit has one class of plaintiffs who allege their Whirlpool washing machines have defective control units that stop randomly, and another who claim a defect causes moldy machines. The allegedly defective machines were sold between 2001 and 2004. The district court denied certification for the mold class, saying Whirlpool had made design changes over the years at issue that would result in different defects or no defect for some plaintiffs. It did grant certification to the control unit plaintiffs, who allege Sears knew about the defect but charged them for repairs anyway. Both sides appealed, and the Seventh Circuit upheld certification for the control-unit plaintiffs and reversed the denial for the mold plaintiffs. In its ruling, the Seventh said it was less important that the machines were different than it was that all plaintiffs sought to resolve the same issue: were the machines defective in a way that led to mold?
The Supreme Court later sent Butler back to the Seventh Circuit for reconsideration in light of its 2013 decision in Behrend. In an 11-page decision, the Seventh reaffirmed its ruling, preserving certification for both classes. The Supreme Court in Behrend ruled that a class cannot be certified based on a theory of damages that cannot reasonably be attributed to acts of the defendant that are not classwide. But in this case, the Seventh said, that’s not possible because both classes are based on specific acts of the defendant that unify them. Though there may be different subclasses who bought different washers, the court said, all of their damages are based on the same alleged breach of warranty. And importantly, the district court was never asked to determine class-wide damages in this case. The court added that the Sixth Circuit has decided an identical case in the same way, and that predominance is a question of common issues, not necessarily of identical damages.
As a southern Illinois defective products lawyer, I’m pleased to see that the Seventh Circuit has taken a consistent position on this. As the court observed, to decide otherwise would “drive a stake through the heart of the class action device,” because defendants would be able to avoid liability even if they had caused harm that was great in magnitude but not large enough to allow any individual plaintiff to sue. In cases where the harm is, to use the court’s example, $30, there’s no way an individual’s recovery will allow him or her to hire an attorney; such a person will only sue if he or she is wealthy and well-motivated. Class actions exist for precisely this reason, and as a Missouri product defect attorney, I believe the Seventh (and Sixth) did well to preserve them.

From offices in St. Louis and Belleville, Ill., Carey, Danis & Lowe represents clients who have suffered serious injuries or lost a family member because of someone else’s negligence. To learn more or set up a free, confidential consultation, call us today at 1-877-678-3400 or send us a message online.
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