On May 9, Judge Amy St. Eve of the United States District Court for the Northern District of Illinois (i) denied certification to various classes of consumers who purchased allegedly defective Whirlpool ovens, and (ii) excluded the opinions of Albert de Richemond, plaintiffs’ expert for proof of a common defect among the nearly 2 million ovens. See Kljajic v. Whirlpool Corp., No. 15-CV-5980 (May 9, 2017) (ECF No. 215) (“Op.”) at 1.
According to the plaintiffs, Whirlpool’s self-cleaning feature made its ovens prone to overheating, causing them to “lock up,” and rendering them unusable. Op. at 6. And they sought to certify various classes of individuals who bought a Whirlpool oven with a self-cleaning mechanism. See id. at 6.
The court didn’t buy it. And repeatedly criticized the plaintiffs for being “somewhat coy” and “continually moving the goalpost” in identifying a specific defect. Id. at 8.
Rather than challenging de Richmond’s qualifications, Whirlpool sought to preclude his testimony as (i) unhelpful to demonstrating a common defect, and (ii) unreliable. See id. at 20.
Perhaps miffed by the plaintiffs “cag[iness]” in defining the common defect, the court held them (and their expert) to the more precise theory—from which they “retreated” at the Daubert hearing—advanced by their reply brief. Id. at 21. Specifically, that an inherent design defect, common to all ovens, caused overheating and failure during self-cleaning. See id.
But, according to the court, de Richemond’s report never identified precisely what he believed the common defect to be. See id. at 22. At times, he opined that air flow was key. See id. At others, he “merely point[ed] to an undifferentiated mass of potential problems that could contribute to oven failure.” Id. The court did not take kindly to this “kitchen-sink approach,” and ultimately found that de Richemond’s “unclear and fluctuating opinions” were not helpful in light of how the plaintiffs framed their argument. Id. at 23.
“Even more problematic” than his vague opinions and surface-level knowledge, however, was the fact that de Richemond contradicted the plaintiffs’ theory of the case during his deposition. Id. at 24. Directly quoting from the transcript, the court noted that de Richemond “made clear” that he did not know what, in particular, would cause an oven to fail. See id. Nor could he opine that the same defect caused different ovens to fail. See id. Instead, he “essentially disclaim[ed]” any opinion that would help the plaintiffs’ theory.
Worse still, was the unreliability of de Richemond’s inquiry and methods. See id. at 25. He tested his air-flow hypothesis on two ovens—both owned by named plaintiffs—and conducted no tests on other brands. See id. at 28. He did not test what caused the two ovens to fail, did not know why the two ovens failed, and could not say whether they failed for the same reason. See id.
For Judge St. Eve, extrapolating the results of de Richemond’s testing to all the Whirlpool ovens at issue was a bridge too far. And she held: “To reach a conclusion that 2,000,000 Ovens contain a common defect based on the testing of only two ovens leaves too large a gulf in analytical reasoning to qualify as reliable, especially given the difference in the Ovens.” Id. at 29.
Further, his “selective blindness” to relevant contradictory data—standards testing showing healthy temperature margins during self-cleaning—underscored the unreliability of his methodology. See id. at 30. In the court’s view, such “cherry picking” demonstrated that de Richemond developed his opinion expressly for the purposes of testifying, destroying his credibility. See id. at 31.
Without crucial expert evidence, the plaintiffs “lack[ed] the glue” to hold their proposed classes together under Rule 23. Id. at 35.
Because their expert could not identify a common cause, the plaintiffs could not tie all 2 million ovens together in a way that would facilitate the efficient resolution of the question of whether the ovens suffered from a defect. See id. at 41. In other words, it would be impossible to learn anything about all 2 million ovens from one oven’s failure during self-cleaning. See id. Moreover, Whirlpool’s evidence showing different designs for different product lines highlighted the need for individualized inquiries—especially because certain product lines outperformed others during temperature-management standards testing. See id.
They say that a chain is only as strong as its weakest link. Here, the plaintiffs’ counsel’s indecisiveness forged that link. The lawyers simply could not come up with, and stick to, a single theory. By waffling back and forth as to the common defect, counsel essentially hung its expert out to dry, and potentially squandered the best chance of gaining leverage in settlement negotiations. On the other hand, to their credit, Whirlpool’s counsel exploited these inconsistencies—which spanned across briefing, deposition, testimony, and oral arguments—to destroy de Richemond’s credibility. And, in the process, stirred up the judge’s anger and successfully directed it toward the plaintiffs.
This case teaches an important strategic lesson: be sensitive to the weaknesses in your case; don’t create them. Your adversary will be more than happy to watch your case unravel as the unforced errors pile up.
We’ll continue to keep an eye on this and other expert issues here at the Monitor.