Varner et al v. Dometic Corporation

Filing 244

ORDER denying 226 Motion for Reconsideration re 219 Order on the Defendants Motion for Summary Judgment and the Plaintiffs Motion for Class Certification . Signed by Judge Robert N. Scola, Jr on 10/20/2017. (kpe)

United States District Court
for the
Southern District of Florida
Brandy Varner and others,
Plaintiffs,
v.
Dometic Corporation, Defendant.

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Civil Action No. 16-22482-Civ-Scola
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Order on Motion for Reconsideration
This matter is before the Court on the Plaintiffs’ motion for
reconsideration of the Court’s Order on the Defendant’s Motion for Summary
Judgment and the Plaintiffs’ Motion for Class Certification (the “Order”), which
dismissed this case for lack of standing. The decision to grant or deny a motion
for reconsideration is committed to the district court’s sound discretion. See
Chapman v. AI Transport, 229 F.3d 1012, 1023-24 (11th Cir. 2000) (reviewing
reconsideration decision for abuse of discretion). Reconsideration is
appropriate only in very limited circumstances, such as where “the Court has
patently misunderstood a party, where there is an intervening change in
controlling law or the facts of a case, or where there is manifest injustice.” See
Vila v. Padron, No. 04-20520, 2005 WL 6104075, at *1 (S.D. Fla. Mar. 31,
2005) (Altonaga, J.). “Such problems rarely arise and the motion to reconsider
should be equally rare.” See id. (citation omitted). In order to merit
reconsideration, “the party must do more than simply restate its previous
arguments, and any arguments the party failed to raise in the earlier motion
will be deemed waived.” See id.
The Plaintiffs argue that reconsideration is warranted because the Court
erred in ruling that the Plaintiffs do not have standing to pursue their claims.
(Mot. at 5.) The Court concluded that the Plaintiffs did not have standing
because they “failed to adequately support their allegations that there is an
inherent defect that is manifest in all Dometic cooling units and that they have
suffered economic harm as a result of the defect.” (Order at 13, ECF No. 219.)
The Plaintiffs argue that the Court’s conclusion that they had not established
that there was an inherent defect in Dometic’s cooling units was “based on a
flawed premise.” (Mot. at 2.) The flawed premise was the Court’s description of
the inherent defect as stress cracking and corrosion. (Id.) Rather, the Plaintiffs
argue that the defect that they alleged was “the design of the boiler tube
assemblies in all of Dometic’s cooling units,” and that “stress cracking and
corrosion are the ‘failure mode’ that results from the defect.” (Id.) (emphasis in

original.) The Plaintiffs describe the defective design as “Dometic’s use of thinwalled, plain carbon steel tubing; a cooling solution made of highly corrosive
ammonia and water; a particular weld geometry to join the boiler tube to the
heater pocket; and a corrosion inhibitor, sodium chromate, that is rendered
ineffective through the ordinary operation of the cooling unit.” (Id.) The
Plaintiffs argue that this defective design is present in all Dometic cooling units
at the time of purchase. (Id.)
In the Order, the Court noted that it was “difficult to discern from the
Complaint precisely what the Plaintiffs allege the inherent defect to be.” (Order
at 6.) Since the Plaintiffs primarily relied on the opinion of their expert, Dr.
Paul Eason, to substantiate their allegations of an inherent defect, the Court
utilized Dr. Eason’s expert report to try to determine the nature of the alleged
defect and whether it was manifest in all units at the time of sale. (Id. at 6-9.)
As the Court noted in the Order, Dr. Eason opined that Dometic’s cooling
units:
[E]xhibit a common failure mode across all models that is
demonstrative of a product defect. This failure manifests as a
breach of the boiler tube and the release of the noxious, flammable
contents. The release of flammable materials in the presence of a
competent ignition source renders this failure mode a fire risk.
This defect is a product of both the design and manufacture of the
unit, specifically the materials selection of steel tubing for the
boiler and the process of welding to join that tubing to adjacent
heat sources, in the operational presence of a highly corrosive
working fluid.
(Eason Rep. ¶ 7(a), ECF No. 135-19.) This description of the defect does not
support the Plaintiffs’ current argument that the defect is the design of the
boiler tube assembly. Rather, Dr. Eason used the terms “defect” and “failure
mode” interchangeably and opined that the defect is a product of both the
boiler tube design and the manufacturing process. Moreover, as the Court
noted in the Order, Dr. Eason clarified during his deposition testimony that
Dometic’s cooling units are defective because they exhibit a common failure
mode, and he acknowledged that not all Dometic cooling units will experience
that failure mode. (Eason Dep. Tr. 178:13 – 179:21, ECF No. 153-2.)
This testimony is consistent with the analysis in Dr. Eason’s expert
report. The report states that “[t]he primary failure mode of the cooling unit
loop requires a compromise in the integrity of the loop . . . Any breach of the
tubing will result in the release of the ammonia solution working fluid.” (Eason
Rep. ¶ 15.) Dr. Eason did not opine that the design of the boiler tube assembly

automatically causes a compromise in the integrity of the closed loop, or that
the conditions required to cause such a compromise are present at the time of
purchase. Rather, he identified three “mechanisms” that can result in a breach
of the closed loop. (Id. ¶ 15-18.)
The Court’s Order analyzed Dr. Eason’s opinions and deposition
testimony concerning each of the three mechanisms and concluded that none
of the mechanisms necessarily occurred as a result of the product’s design or
were manifest in the cooling units at the time of sale. (Order at 7-9.) Rather,
the occurrence of the three mechanisms was dependent on factors such as
variations in the welding process during the manufacture of the unit and
whether the unit was used properly. (Id.) The Court specifically observed that
Dr. Eason’s “use of the term ‘common failure mode’ is not a synonym for
‘inherent defect.’ Rather, the term indicates that there are a variety of factors
that may come together to result in a leak.” (Id. at 9.) Therefore, the Court did
not misunderstand the evidence presented by the Plaintiffs or rely on a “flawed
premise” in analyzing whether the Plaintiffs had established that there was an
inherent design defect manifest in all units at the time of sale.
The only additional evidence that the Plaintiffs have cited in their motion
for reconsideration that could potentially support their allegation of a uniform
design defect is a 2007 letter from an engineer to an insurance company that
provided an analysis of a Dometic cooling unit that caused a fire in a motor
home (ECF No. 204-65). The letter states that “[t]he defective design in the
boiler tube which allowed the refrigerant to leak in the first place was the cause
of this fire, in my opinion.” (Id. at 10.) However, the phrase “defective design”
appears to be a reference to one of Dometic’s recall notices, which the engineer
described earlier in his letter as stating that the refrigerators “had been known
to develop cracks in the boiler tube which can allow the flammable refrigerant
to escape.” (Id. at 9.) There is no other description of the “design defect” in the
letter. The fact that the refrigerators had been known to develop cracks in the
boiler tube does not constitute evidence of a uniform design defect manifest at
the time of sale, nor is such evidence contrary to the Order, which specifically
stated that “[t]here is no question that the Plaintiffs have established that there
is a risk that their refrigerators will develop leaks and/or fires.” (Order at 10.).1
1 The Court notes that the motion for reconsideration states that “Plaintiffs also submitted
evidence that the engineering consultant EWI inspected and analyzed Dometic cooling units in
2004 and concluded that leaks in the units were the result of ‘cracking adjacent to an
attachment weld’ that EWI believed to ‘be a consequence of thermally induced cyclic stresses in
conjunction with stress concentrations caused by the weld geometry and the part design.’”
(Mot. at 9) (emphasis in original.) In support of this statement, the Plaintiffs cite to Exhibit 32
of their Statement of Facts, without identifying a particular page of that document. (Id.)
However, Exhibit 32 does not contain the italicized language. Rather, the closest sentence that

In arguing that the Court erred in finding that they did not have
standing, the Plaintiffs rely heavily on In re Zurn Pex Plumbing Products Liability
Litigation, 644 F.3d 604 (8th Cir. 2011), which the Court analyzed at length in
its Order. (Mot. at 9-10.) The In re Zurn Court noted that the plaintiffs did not
allege that the brass fittings in the plumbing systems merely risked developing
stress corrosion cracking; rather, they alleged that stress corrosion cracking
“afflicts all of the fittings upon use, regardless of water conditions or
installation practices,” and that stress corrosion cracking was already manifest
in all of the plumbing systems. 644 F.3d at 616. The plaintiffs supported these
allegations with expert testimony since the case was at the class certification
stage. See id. The Plaintiffs here argue that, just like the plaintiffs in In re Zurn,
they have “alleged and shown that the processes of corrosion and cracking
begin to afflict the boiler tube assembly upon first use, regardless of individual
circumstances.” (Id. at 10.) As detailed above, while the Plaintiffs did make
such an allegation in the Second Amended Complaint, the evidence presented
at the summary judgment stage did not support this allegation. As noted in the
Order, the Plaintiffs were required to substantiate their allegations with
affidavits or other evidence at the summary judgment stage. (Order at 2-3.)
Curiously, in their reply in support of their motion for reconsideration,
the Plaintiffs argue that “the plaintiff need not demonstrate that the
undesirable condition alleged will actually occur in every unit.” (Reply at 4,
ECF No. 235.) The Plaintiffs argue that they have standing because they have
established that “the design defect present in every unit at the point of sale will
. . . set in motion processes that created a tendency for the boiler tube
assemblies to wear down; a tendency that was not disclosed to any class
member, and which caused Plaintiffs to pay more for their Dometic
refrigerators than they would had Dometic disclosed the design defect to
consumers.” (Id. at 7) (emphasis added.”) This argument fails for several
reasons. First, as set forth above, the Plaintiffs have not established that the
design defect necessarily sets in motion the processes that cause the “failure
mode.” Second, this argument undermines the Plaintiffs’ repeated assertions in
the motion for reconsideration that they have met the In re Zurn standard by
showing that “the processes of corrosion and cracking begin to afflict the boiler
tube assembly upon first use,” as well as their allegation in the Second
Amended Complaint that the “inherent defect will cause inevitable leaks to
manifest during the cooling unit’s normal operation . . . .” (Second Am. Compl.
¶ 106, ECF No. 89.) Third, the Plaintiffs did not make this argument in their
the Court could locate states that “the cause of leaking was probably due to thermally induced
cyclic stresses in conjunction with weld geometry stress concentrations.” (EWI Report at 7, ECF
No. 204-32.)

motion for reconsideration and, therefore, they have waived it. See Spann v.
Cobb Cnty. Pretrial Court Serv’s Agency, 206 Fed. Appx. 910, 911 fn.1 (11th
Cir. 2006) (appellant waived argument by failing to raise it in her initial brief)
(citing United States v. Dicter, 198 F.3d 1284, 1289 (11th Cir. 1999)).
Finally, none of the cases that the Plaintiffs cite in the reply hold that a
plaintiff has standing where he or she has not established that there is an
inherent defect manifest at the time of sale and has not established that he or
she has suffered an economic harm. In the motion for reconsideration, the
Plaintiffs argued that they do not need to establish an economic loss, and “need
only allege and evidence that they did not get the benefit of their bargains with
a defendant for standing to attach.” (Mot. at 11.) Taking this argument together
with the argument in the reply that the Plaintiffs do not need to demonstrate
that there was a defect that was manifest at the time of sale, it essentially
amounts to an argument that the Plaintiffs do not need to establish any injury
at all. Such a position ignores that the “irreducible constitutional minimum of
standing” requires an injury in fact. See, Lujan v. Def.’s of Wildlife, 504 U.S.
555, 560 (1992) (citations omitted).
The Court held that the Plaintiffs had not substantiated their allegations
that they suffered a loss in value or overpaid for their units as a result of the
alleged defect, and the Plaintiffs have not persuaded the Court that it should
re-visit this conclusion. The Court simply fails to see how the Plaintiffs can
establish an injury in fact when they have not provided evidence that there is a
uniform design defect manifest at the time of sale and have not provided
evidence that they have suffered any economic harm due to either the alleged
defect or the “tendency” of the cooling units to develop fires and leaks.
The remaining arguments simply rehash arguments previously made or
rely on evidence that the Plaintiffs failed to previously present to the Court.
(See Mot. for Reconsideration, Ex.’s B & C, ECF Nos. 226-2, 226-3.)
Accordingly, the Court denies the Plaintiffs’ motion for reconsideration (ECF
No. 225).
Done and ordered in chambers, at Miami, Florida, on October 20, 2017.
________________________________
Robert N. Scola, Jr.
United States District Judge