In re Whirlpool Corp. Front–Loading Washer Prods. Liab. Litig.

45 F.Supp.3d 706

In re: WHIRLPOOL CORP. FRONT–LOADING WASHER PRODUCTS LIABILITY LITIGATION.

Case No. 1:08–WP–65000.

MDL No. 2001.

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

Signed Sept. 19, 2014.

David R. Kott, McCarter & English, Newark, NJ, Galen D. Bellamy, Joel S. Neckers, Michael Timothy Williams, Theresa R. Wardon, Wheeler Trigg O'Donnell, Alison G. Wheeler, Eric R. Olson, Bartlit, Beck, Herman, Palenchar & Scott, Scott S. Baker, Denver, CO, Heather M. Lutz, Anthony J. O'Malley, Vorys, Sater, Seymour & Pease, Cleveland, OH, James T. Irvin, III, Nelson, Mullins, Riley & Scarborough, Columbia, SC, John C. Fitzpatrick, Philip S. Beck, Rebecca Weinstein Bacon, Bartlit, Beck, Herman, Palenchar & Scott, Brad E. Rago, Chicago, IL, Robert H. Brunson, Nelson, Mullins, Riley & Scarborough, Charleston, SC, Charles Philip Flick, Seipp & Flick LLP, Miami, FL, F. Daniel Balmert, Vorys, Sater, Seymour & Pease, Akron, OH, James K. Leader, Leader & Berkon, Scott T. Baker, New York, NY, for Whirlpool Corp. Front-loading Washer Products Liability Litigation.

MEMORANDUM AND ORDER

CHRISTOPHER A. BOYKO, District Judge:

On July 12, 2010, pursuant to Fed.R.Civ.P. 23(a) and 23(b)(3), this Court certified a class of Ohio plaintiffs who own Whirlpool Duet washing machines. See docket no. 141 (“Class–Cert. Order ”).¹ The Sixth Circuit Court of Appeals affirmed,² and this Court recently denied Whirlpool's Motion to Decertify the Class, see docket no. 366 (“Class Redefinition Order ”).³

The parties have now filed cross-motions for summary judgment. For the reasons stated below: (1) Whirlpool's Motion for Summary Judgment (docket no. 308) is GRANTED as to plaintiffs' OCSPA claim and failure-to-warn claim, and otherwise DENIED; and (2) Plaintiff's Motion for Summary Judgment (docket no. 309) is DENIED.⁴ Accordingly, trial of the two remaining claims brought by the Ohio plaintiff class—Design Defect and Breach of Implied Warranty—will go forward as scheduled.

I. Plaintiffs' Claims.

In the Third Amended Master Class Action Complaint (docket no. 80), Ohio Plaintiffs Gina Glazer and Trina Allison each allege they bought a front-loading, high-efficiency washing machine manufactured by Whirlpool under the “Duet” brand-name and the machine subsequently developed serious mold problems. Glazer and Allison assert four state-law claims: (1) violation of the Ohio Consumer Sales Practices Act (“OCSPA”), Ohio Rev.Code § 1345.01 et seq.; (2) Tortious Breach of Warranty; (3) Negligent Design; and (4) Negligent Failure to Warn.

Glazer and Allison moved for certification of a class of Ohio plaintiffs, and the Court granted that motion in part. Specifically, the Court declined to certify the OCSPA claim for class action treatment, but did certify the claims for Breach of Warranty, Negligent Design, and Negligent Failure to Warn. See Class–Cert. Order, 2010 WL 2756947 at *4. The Court has scheduled these claims for trial beginning October 7, 2014. Although the OCSPA claim is not certified for class action treatment, it remains a part of this case as a claim brought by the individual named Plaintiffs, Glazer and Allison. Whirlpool moves for summary judgment on all four claims.

II. Legal Standard.

“The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). No genuine dispute of material fact exists where the record “taken as a whole could not lead a rational trier of fact to find for the non-moving party.”Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The party seeking summary judgment bears the initial burden of informing the district court of the basis for its motion and identifying the evidence it believes demonstrates the absence of a genuine issue of material fact. Allied Erecting and Dismantling Co., Inc. v. Genesis Equip. & Mfg., Inc., 649 F.Supp.2d 702, 710 (N.D.Ohio 2009) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ). The moving party may satisfy this burden either by “submit[ting] affirmative evidence that negates an essential element of the nonmoving party's claim,” or by demonstrating “to the Court that the nonmoving party's evidence is insufficient to establish an essential element of the nonmoving party's claim.” United States v. Ruth, 2014 WL 1333188 at *2 (N.D.Ohio Mar. 31, 2014) (citing Celotex, 477 U.S. at 331, 106 S.Ct. 2548 ).

Once the moving party meets its burden under Rule 56, the burden shifts to the nonmoving party, “who must present some ‘specific facts showing that there is a genuine issue for trial.’ ” Johnson v. U.S. Postal Serv., 64 F.3d 233, 236 (6th Cir.1995) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ). In reviewing a motion for summary judgment, the “evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in its favor.” Kellogg Co. v. Exxon Corp., 209 F.3d 562, 568 (6th Cir.2000). Ultimately the court evaluates “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Anderson, 477 U.S. at 251–52, 106 S.Ct. 2505.

III. Law of the Case.

As footnotes 1–3 reveal, there exists a long procedural history in connection with the question of class certification. During that history, this Court and the Sixth Circuit Court of Appeals each examined several times the claims brought by the Ohio plaintiffs. These earlier examinations implicate the doctrine of law of the case.

When a case has been remanded by an appellate court, the trial court is bound “to proceed with the mandate and law of the case as established by the appellate court.” Petition of U.S. Steel Corp., 479 F.2d 489, 493 (6th Cir.1973), cert. denied, 414 U.S. 859, 94 S.Ct. 71, 38 L.Ed.2d 110 (1973). The law-of-the case doctrine “provides that ‘unless corrected by an appellate tribunal, a legal decision made at one stage of a civil or criminal case constitutes the law of the case throughout the pendency of the litigation.’ * * * This means that a court ordinarily ought to respect and follow its own rulings, made earlier in the same case.” Ellis v. United States, 313 F.3d 636, 646 (1st Cir.2002) (quoting Flibotte v. Pa. Truck Lines, Inc., 131 F.3d 21, 25 (1st Cir.1997) ).

“It is clear that when a case has been remanded by an appellate court, the trial court is bound to ‘proceed in accordance with the mandate and law of the case as established by the appellate court.’ ” Hanover Ins. Co. v. Am. Eng'g Co., 105 F.3d 306, 312 (6th Cir.1997) (quoting Petition of U.S. Steel Corp., 479 F.2d 489, 493 (6th Cir.1973), cert. denied, 414 U.S. 859, 94 S.Ct. 71, 38 L.Ed.2d 110 (1973) ). Ultimately, the law of the case doctrine precludes a court from “reconsideration of identical issues.” Id. “Issues decided at an early stage of the litigation, either explicitly or by necessary inference from the disposition, constitute the law of the case.”Id. (quoting Coal Resources, Inc. v. Gulf & Western Ind., 865 F.2d 761, 766, opinion amended on denial of reh'g, 877 F.2d 5 (6th Cir.1989) ). See Wye Oak Technology, Inc. v. Republic of Iraq, 666 F.3d 205, 219 (4th Cir.2011) (“The law of the case doctrine ‘is a prudential rule rather than a jurisdictional one,’ * * * and it ‘merely expresses the practice of courts generally to refuse to reopen what has been decided.’ ”).

IV. Analysis—Whirlpool's Motion.

A. Claim for Violation of Ohio Consumer Sales Practices Act (“OCSPA”).

In Count I of their Complaint, Plaintiffs Allison and Glazer assert Whirlpool violated the OCSPA by “engag[ing] in unfair, deceptive, and unconscionable practices by: (1) marketing and selling Washing Machines with defects that cause lack of dependable operation and thorough cleaning of [laundry] with normal use and/or created a substantial risk that such problems would occur with normal use; and (2) intentionally failing to disclose and/or concealing these known defects and risks.”

Complaint at ¶ 126. Whirlpool argues this claim is barred by the applicable statute of limitations. The Court agrees.

In Savett v. Whirlpool Corp., 2012 WL 3780451 (N.D.Ohio Aug. 31, 2012) (Gaughan, J.), the plaintiff bought a Whirlpool washing machine “marketed as ‘ENERGY STAR’ compliant.” Id. at *1. The plaintiff sued Whirlpool, alleging his washing machine did not, in fact, “meet ENERGY STAR standards.” Id. Among other claims, the plaintiff asserted Whirlpool engaged in an unfair or deceptive practice in violation of the OCSPA.

The Savett court noted that an OCSPA claim “may not be brought more than two years after the occurrence of the violation which is the subject of suit.” Id. at *3 (quoting Ohio Rev.Code § 1345.10(C) ). Further, the “discovery rule does not apply to claims under the OCSPA.” Id. (citing Rosenow v. Shutrump & Assocs., 163 Ohio App.3d 500, 839 N.E.2d 82, 86–87 (2005) and Sproles v. Simpson Fence Co., 99 Ohio App.3d 72, 649 N.E.2d 1297, 1302 (1994) ). The Savett court held that “the allegedly wrongful act occurred at the time of sale and ... the statute of limitations began to run at that time. Since plaintiff failed to file his complaint within two years of the sale, plaintiff is barred from recovering damages under the OCSPA.” Id. See also Anderson v. United Fin. Sys. Corp., 2012 WL 4758134 at *6 (N.D.Ohio Oct. 5, 2012) (Boyko, J.) (“no ... discovery rule applies to actions for damages under § 1345.10(C), which sets forth an absolute two-year statute of limitation”).

The same analysis applies in this case. Plaintiff Allison purchased her Duet washing machine in October 2005, while Plaintiff Glazer purchased her Duet washing machine in April 2006. They filed their Complaint in June of 2008, more than two years after they made their purchases. Accordingly, their OCSPA claims are barred by the...