Elward v. Electrolux Home Products, Inc.

Filing 305

MEMORANDUM OPINION AND ORDER Signed by the Honorable Martha M. Pacold on 6/1/2020:(rao, )

Case: 1:15-cv-09882 Document #: 305 Filed: 06/01/20 Page 1 of 34 PageID #:5834

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
TERESA ELWARD, DENNIS KEESLER, )
LEASA BRITTENHAM, KATHY BECK, )
NATHANIEL BECK, ANGELIA EAST, )
SARAH LaVERGNE, TONY
)
FITZGERALD, LAUREN FITZGERALD, )
GREGORY GRAY, BETHANY
)
WILLIAMS, JOHN McLAUGHLIN,
)
STACY CISCO, WILLIAM FERGUSON, )
and CHERYL FERGUSON, individually )
and on behalf of all others similarly
)
situated,
)
)
Plaintiffs,
)
)
v.
)
)
ELECTROLUX HOME PRODUCTS,
)
INC.,
)
)
Defendant.
)

No. 15-cv-09882
Hon. Martha M. Pacold

MEMORANDUM OPINION AND ORDER
Plaintiffs Teresa Elward, Dennis Keesler, Leasa Brittenham, Kathy and
Nathaniel Beck, Angelia East, Sarah LaVergne, Tony and Lauren Fitzgerald,
Gregory Gray, Bethany Williams, John McLaughlin, Stacy Cisco, and William and
Cheryl Ferguson (collectively, “Plaintiffs”) have sued Defendant Electrolux Home
Products, Inc. (“Electrolux”), alleging that they purchased dishwashers
manufactured by Electrolux that unexpectedly overheated, causing fires and
flooding. Plaintiffs bring various state law claims on behalf of themselves and
others similarly situated, seeking a combination of declaratory, injunctive, and
compensatory relief.
Plaintiffs move to certify eight classes, including two classes for each of four
states (Illinois, Indiana, Ohio, and California). They assert claims arising from
either the manifestation of the dishwasher defect and resulting property damage
(the “State Manifestation Classes”) or the loss in value for dishwashers that contain
the defect, even though it has not manifested (the “State Non-Manifestation
Classes”). In arguing that class certification is appropriate, Plaintiffs rely on
certain expert testimony that Electrolux moves to exclude. In turn, Plaintiffs move

Case: 1:15-cv-09882 Document #: 305 Filed: 06/01/20 Page 2 of 34 PageID #:5835

to exclude certain of Electrolux’s expert witness testimony. Oral arguments on the
Daubert motions took place on May 21, 2019 and, on the motion for class
certification, on August 1, 2019. The case was reassigned to this judge.
For the reasons below, the court grants Electrolux’s motion to exclude
Plaintiffs’ expert Robert O’Shea [191]. The court denies Plaintiffs’ motion to certify
classes [172]. The court strikes the remaining Daubert motions [196] [197] [199]
[201] as moot.
Background
Electrolux is the world’s second-largest appliance maker by units sold.
(Consol. Am. Compl. ¶ 22, Dkt. 93.) It sells dishwashers under a variety of brand
names, including under its own Electrolux brand and its Frigidaire brand. (Id. ¶¶
2, 22.) Plaintiffs, who purport to represent proposed classes of consumers who have
purchased or otherwise acquired these dishwashers, allege that Electrolux’s
dishwashers are “dangerously defective in that their electrical systems overheat
and catch fire, burning holes through the dishwasher, causing flooding, or causing
the entire dishwasher and surrounding area to ignite and burn.” (Id. ¶ 2.)
I.

The Dishwashers & Alleged Defect

In general, dishwashers designed for home use employ a heating element to
heat the wash solution and dry the dishes. (See Def.’s Resp. Mot. Class Cert., Ex. 1,
Verma Decl. ¶ 4, Dkt. 185-2 (sealed).) 1 The heating element is typically mounted
with metal brackets above the bottom of the dishwasher tub, which can be made
with plastic or stainless steel. (See id. ¶ 5; Def.’s Resp. Mot. Class Cert., Ex. 4,
Wilner Report at 10, Dkt. 185-19 (sealed).) Plaintiffs’ lawsuit concerns Electrolux’s
plastic-tub dishwashers, which are sold primarily under the Frigidaire brand name.
(See Pls.’ Mem. Supp. Mot. Class Cert. at 3, Dkt. 173 (public), 174 (sealed); Verma
Decl. ¶ 1; Wilner Report at 10.) Electrolux sells approximately 1 million such
dishwashers per year, and it has distributed over 14 million of this type of
dishwasher since initially offering it into the marketplace. (Pls.’ Mem. Sup. Mot.
Class Cert., Ex. A, Poyner Dep. at 25:13-18, 224:12-13, Dkt. 175 (sealed) (“Poyner
Dep. I”); 2 see also Wilner Report, Ex. 3, Summary of Electrolux Dishwasher Sales
When the court refers to a sealed document, it attempts to do so without revealing any
information that could reasonably be deemed confidential. The court discusses information
from these documents only to the extent necessary to explain the path of the court’s
reasoning. See In re Specht, 622 F.3d 697, 701 (7th Cir. 2010); Union Oil Co. of Cal. v.
Leavell, 220 F.3d 562, 568 (7th Cir. 2000).

1

Plaintiffs have filed multiple versions of the Poyner Deposition, each with different
excerpted pages. The court refers to the version filed in support of Plaintiffs’ motion for

2

2

Case: 1:15-cv-09882 Document #: 305 Filed: 06/01/20 Page 3 of 34 PageID #:5836

Quantity by Year, Dkt. 185-19 (sealed) (showing 15,298,867 plastic-tub dishwashers
sold by Electrolux between 2004 and 2016)).
For these dishwashers, the heating element consists of an outer sheath and
an inner coiled wire. (Verma Decl. ¶ 6; see Pls.’ Mem. Supp. Mot. Class Cert., Ex. B,
O’Shea Report at 21, Dkt. 175-1 (sealed).) Prior to 2012, the sheath was made of
stainless steel 321. In 2012, Electrolux switched to incoloy 840 to meet new
Underwriters Laboratory (“UL”) safety standards. 3 (Verma Decl. ¶ 7.) Inside the
sheath, the coiled filament wire is surrounded by an insulating magnesium oxide
powder. (Id. ¶ 6.) In the past, Electrolux used both square and circular heating
elements, but in 2012 it switched to using only circular elements. (Id. ¶ 8.) Since
December 2008, Zoppas Industries (“Zoppas”), a third-party heating-element
manufacturer, has supplied Electrolux with its heating elements. (Id. ¶ 9.)
The plastic tub in Electrolux’s dishwashers is made of polypropylene meeting
the UL 94 standard rating of HB, which means that the plastic passes the UL 94
HB burn test. (Verma Decl. ¶ 11.) The heating element sits about one inch above
the tub, “supported by two electrical terminals on one side and metal clips opposite
the terminals.” (Verma Decl. ¶ 5.)
Plaintiffs argue that since 2008, Electrolux’s plastic-tub dishwashers have
suffered from a “system” defect resulting from the combination of (1) the Zoppas
heating elements, which they contend are defective in a manner that causes them to
warp and bend, (2) the metal clips holding the heating elements in place, which
they argue are “inadequately sized and strengthened” and insufficient in number,
and (3) the plastic tubs, which they contend are too low-quality to resist melting
when the heating element warps and touches the tub. See Pls.’ Mem. Supp. Class
Cert. at 12; see also id. at 3-4.
Class Definitions and Claims
Plaintiffs propose, for each of the four states represented (Illinois, Indiana,
California, and Ohio), two classes: a “Manifestation” class (for those whose
dishwashers actually manifested the alleged defect in an incident of melting,
class certification as “Poyner Dep. I” and the version filed in support of Plaintiffs’ response
in opposition to Electrolux’s motion to bar O’Shea as “Poyner Dep. II.”
Underwriters Laboratory is a “safety and certification organization that independently
tests various types of consumer products for compliance with UL-promulgated safety
standards and allows manufacturers’ products who [passed] their tests and safety
standards to bear the UL mark.” (Def.’s Resp. Class Cert. at 3 n.1, Dkt. 185 (sealed), Dkt.
186 (public).)
3

3

Case: 1:15-cv-09882 Document #: 305 Filed: 06/01/20 Page 4 of 34 PageID #:5837

flooding, or fire), and a “Non-Manifestation Class” (for consumers whose
dishwashers contain the alleged latent defect although it has not manifested in any
problems). 4 Each of the State Manifestation and Non-Manifestation classes raises a
variety of different claims for strict liability, negligence, fraud and deceptive trade
practices, and breach of the implied warranty of merchantability.
The claims raised by Plaintiffs and the various classes have changed multiple
times, from the filing of their Amended Complaint, to the filing of their motion for
class certification, to the oral argument on their class-certification motion, when
they provided a demonstrative exhibit (“Plaintiffs’ Claims Chart”) purporting to
describe the claims that are certifiable as to each class.
Several of the claims alleged in Plaintiffs’ Claims Chart are not supported by
the allegations of the Amended Complaint. First, the Amended Complaint alleges
breach of the implied warranty of merchantability (Count 1) on behalf of the State
Non-Manifestation Classes 5 only. Accordingly, to the extent Plaintiffs now seek to
raise implied warranty of merchantability claims on behalf of the State
Manifestation Classes, they cannot do so. (See Consol. Am. Compl. at 36.)
Similarly, the Amended Complaint alleges strict products liability (Counts 2 & 3)
and negligence (Counts 4 & 5) on behalf of only the State Manifestation Classes.
Thus, Plaintiffs cannot assert these claims on behalf of the State Non-Manifestation
Classes. (See id. at 38–43.) Furthermore, as to the Ohio classes, Plaintiffs’ Claims
Chart seeks to add claims for strict products liability, negligence, and violations of
the Ohio Consumer Sales Practice Act (“OCSPA”). But Plaintiffs’ strict products
liability and negligence claims are only raised by representatives from the other
state classes, not Ohio. Furthermore, there is no claim set out under the OCSPA.
(See id.)
Conversely, Plaintiffs’ Claims Chart makes certain concessions as to other
claims. First, as to their negligence claims (Counts 3 & 4) for the California,
Plaintiffs originally proposed a nationwide class and additional state classes on behalf of
consumers in Pennsylvania, Washington, and Louisiana. (See Consol. Am. Compl. ¶¶ 86,
181–200, 201–36, 310–41.) Plaintiffs have withdrawn their request for nationwide classes,
(see Reply Supp. Mot. Class Cert. at 7, Dkt. 209 (sealed), Dkt. 210 (public)), and they appear
to have abandoned the Pennsylvania, Washington, and Louisiana classes, (see Pls.’ Mem.
Supp. Class Cert. at 8–9).
4

In the Amended Complaint, Plaintiffs used the language “State Replacement Subclasses”
to refer to what they now call the “State Non-Manifestation Classes.” They used the
language “State Damage Subclasses” to refer to what they now call the “State
Manifestation Classes.” (See Consol. Am. Compl. ¶ 86; Pls.’ Mem. Supp. Mot. Class Cert. at
8–9.)

5

4

Case: 1:15-cv-09882 Document #: 305 Filed: 06/01/20 Page 5 of 34 PageID #:5838

Illinois, and Ohio classes, they purport to limit the Manifestation classes’ recovery
to damages to property other than the dishwasher itself. 6 Additionally, they
acknowledge that as to the Indiana classes, claims of design defect and failure to
warn must be pursued under a negligence theory rather than a strict products
liability theory. Accordingly, the court clarifies the claims raised by each putative
class as described below.
I.

Illinois Classes
Illinois Manifestation Class: All persons in the United States who
since 2008 purchased or otherwise acquired in the State of Illinois
primarily for personal, family, or household purposes an Electrolux
designed and/or manufactured dishwasher that included a Zoppas
Industries heating element and who have incurred property damage
from a fire or flood.
Illinois Non-Manifestation Class: All persons in the United States
who since 2008 purchased or otherwise acquired in the State of Illinois
primarily for personal, family, or household purposes an Electrolux
designed and/or manufactured dishwasher that included a Zoppas
Industries heating element.

Both Illinois classes raise claims for violation of the Illinois Consumer Fraud
and Deceptive Business Practices Act (“ICFA”), 815 ILCS 505/1 et seq. (Count 6) and
the Illinois Uniform Deceptive Trade Practices Act (“IUDTPA”), 815 ILCS 510/1 et
seq. (Count 7), as well as for common-law fraudulent concealment (Count 18).
Additionally, the Illinois Manifestation Class raises claims for strict liability for
design defect (Count 2) and strict liability for failure to warn (Count 3). Finally, the
Illinois Manifestation Class also raises claims for negligence (Count 4) and
negligent failure to warn (Count 5), insofar as property damage beyond the
dishwasher itself is shown. The Illinois Non-Manifestation Class raises a claim of
breach of the implied warranty of merchantability (Count 1).
II.

Indiana Classes
Indiana Manifestation Class: All persons in the United States who
since 2008 purchased or otherwise acquired in the State of Indiana
primarily for personal, family, or household purposes an Electrolux
designed and/or manufactured dishwasher that included a Zoppas

Plaintiffs do not, however, propose any subdivision of the State Manifestation Classes on
this basis.

6

5

Case: 1:15-cv-09882 Document #: 305 Filed: 06/01/20 Page 6 of 34 PageID #:5839

Industries heating element and who have incurred property damage
from a fire or flood.
Indiana Non-Manifestation Class: All persons in the United States
who since 2008 purchased or otherwise acquired in the State of Indiana
primarily for personal, family, or household purposes an Electrolux
designed and/or manufactured dishwasher that included a Zoppas
Industries heating element.
Both Indiana classes raise claims for design defect (Count 12) and failure to
warn (Count 13) in violation of the Indiana Product Liability Act, (“IPLA”), Ind.
Code § 34-20-1-11; for violation of the Indiana Deceptive Consumer Sales Act
(“IDCSA”), Ind. Code § 24-5-0.5-10 (Count 14); and for common-law fraudulent
concealment (Count 18). The Indiana Non-Manifestation Class raises a claim for
breach of the implied warranty of merchantability (Count 1).
III.

Ohio Classes
Ohio Manifestation Class: All persons in the United States who since
2008 purchased or otherwise acquired in the State of Ohio primarily for
personal, family, or household purposes an Electrolux designed and/or
manufactured dishwasher that included a Zoppas Industries heating
element and who have incurred property damage from a fire or flood.
Ohio Non-Manifestation Class: All persons in the United States who
since 2008 purchased or otherwise acquired in the State of Ohio
primarily for personal, family, or household purposes an Electrolux
designed and/or manufactured dishwasher that included a Zoppas
Industries heating element.

Both Ohio classes raise a claim of common-law fraudulent concealment
(Count 18). The Ohio Non-Manifestation Class raises a claim of breach of the
implied warranty of merchantability (Count 1).
IV.

California Classes
California Manifestation Class: All persons in the United States
who since 2008 purchased or otherwise acquired in the State of
California primarily for personal, family, or household purposes an
Electrolux designed and/or manufactured dishwasher that included a
Zoppas Industries heating element and who have incurred property
damage from a fire or flood.
California Non-Manifestation Class: All persons in the United
States who since 2008 purchased or otherwise acquired in the State of
6

Case: 1:15-cv-09882 Document #: 305 Filed: 06/01/20 Page 7 of 34 PageID #:5840

California primarily for personal, family, or household purposes an
Electrolux designed and/or manufactured dishwasher that included a
Zoppas Industries heating element.
Both California classes raise claims for unlawful, unfair, and fraudulent
business practices pursuant to the California Business and Professions Code, Cal.
Bus. & Prof. Code § 17200 (Count 15); for violations of the California Consumers
Legal Remedies Act (“CLRA”), Cal. Civ. Code § 1750 (Count 16); for breach of the
implied warranty of merchantability under the Song-Beverly Consumer Warranty
Act, Cal. Civ. Code § 1792 et seq. (Count 17); and for common-law fraudulent
concealment (Count 18). The California Manifestation Class raises claims for strict
liability for design defect” (Count 2) and strict liability for failure to warn (Count 3),
as well as negligence (Count 4); and negligent failure to warn (Count 5), to the
extent property damage is shown other than to the dishwashers themselves. The
California Non-Manifestation Class raises a claim of common-law breach of the
implied warranty of merchantability (Count 1).
Class Representatives
Six of the named Plaintiffs seek to represent both the Manifestation and NonManifestation Classes of their respective states. Each of these Plaintiffs
experienced incidents of damage to their dishwashers resulting from the alleged
defect, the specific facts of which are further detailed below.
I.

Teresa Elward (Illinois Classes)

Elward, a resident of Chicago, Illinois, purchased her Frigidaire dishwasher
(model number FGBD2445NF, serial number TH40831783) in July 2014. (Def.’s
Resp. Mot. Class Cert., App’x B, Named Plaintiffs’ Specific Facts at 1, Dkt. 186-2
(citing id., Ex. 3, Elward Dep., Dkt. 186-5)). On October 15, 2015, the heating
element warped and melted the plastic tub. Id. Water leaked from the dishwasher
and remained on the floor for about 2 to 3 hours, causing Elward’s wood floor to
buckle. Id.
II.

Kathy and Nathaniel Beck (Indiana Classes)

The Becks, residents of Oakland City, Indiana, purchased their Frigidaire
dishwasher (model number FFBD2407LB0B, serial number TH11027481) in March
2011. (Named Plaintiffs’ Specific Facts at 1 (citing id., Ex. 4, Kathy Beck Dep., Dkt.
186-6; id., Ex. 5, Nathaniel Beck Dep., Dkt. 186-7)). In August 2012, the heating
element warped and melted the tub, causing the dishwasher to leak onto the floor.
(Id. at 1, 4.) Mr. Beck believed the flooring was damaged, and so he removed the
carpet and replaced it with new carpet and tile flooring. (Id. at 4.) Furthermore,
Mr. Beck attempted to fix the dishwasher’s heating element by bending it back into
place, putting epoxy over the hole, and placing a ceramic tile underneath the
7

Case: 1:15-cv-09882 Document #: 305 Filed: 06/01/20 Page 8 of 34 PageID #:5841

heating element to hold it up. (Id.) The Becks used their dishwasher for a couple of
weeks to a couple of months after Mr. Beck repaired it. (Id.)
III.

Stacy Cisco (Ohio Classes)

Cisco, a resident of Sidney, Ohio, purchased her Frigidaire dishwasher
(model number FFBD2411NS0A, serial number TH24148903) in November 2012.
(Named Plaintiffs’ Specific Facts at 2 (citing id., Ex. 7, Cisco Dep., Dkt. 186-9)).
Four years later, in September 2016, the heating element malfunctioned. (Id.)
Cisco found the heating element out of its clips and lying on the plastic tub. (Id.)
She noticed burns in the bottom of the tub basin, which had led to the dishwasher
flooding her kitchen floor. (Consol. Am. Compl. ¶¶ 78–79.) The leak, however, did
not damage Cisco’s floor or anything else in her kitchen. (Cisco Dep. at 162:8-15.)
IV.

John McLaughlin (California Classes)

McLaughlin, a resident of Rancho Cordova, California, purchased his
Frigidaire dishwasher (model number FDB520RHB2A, serial number TH10938065)
in February 2011. (Named Plaintiffs’ Specific Facts at 2 (citing id., Ex. 6,
McLaughlin Dep., Dkt. 186-8)). The heating element in his dishwasher warped and
melted the plastic tub on August 16, 2016. (Id.) Water leaked out of the tub onto
the flooring below the dishwasher. (Consol. Am. Compl. ¶ 74.) Only the dishwasher
was damaged, not anything else in his kitchen. (McLaughlin Dep. at 170:6-13.)
McLaughlin purchased a replacement dishwasher and contacted Electrolux about a
week after the incident. (Named Plaintiffs’ Specific Facts at 5.) He asked to be
reimbursed for the replacement, but his request was denied. (Id.)
V.

Bethany Williams (California Classes)

Williams, a resident of Lakeside, California, purchased her Frigidaire
dishwasher (model number FGBD2438PF3A, serial number TH42455891) in June
2014. (Id. at 1 (citing id., Ex. 2, Williams Dep., Dkt. 186-4)). On September 11,
2015, the heating element in her dishwasher elongated, warped, and made contact
with the plastic tub, melting a hole in it. (Id.) Water leaked from the dishwasher
and into the cabinet under her sink, which she had to replace. (Id. at 3.)
Furthermore, water damaged the veneer on her cabinets next to the dishwasher.
(Id.)

8

Case: 1:15-cv-09882 Document #: 305 Filed: 06/01/20 Page 9 of 34 PageID #:5842

Legal Standards
Both parties have moved to exclude expert testimony. Plaintiffs have moved
for class certification. The court first sets forth the applicable legal standards.
I.

Expert Testimony

The admissibility of expert testimony is governed by Federal Rule of
Evidence (FRE) 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S.
579 (1993). See United States v. Parra, 402 F.3d 752, 758 (7th Cir. 2005) (“At this
point, Rule 702 has superseded Daubert, but the standard of review that was
established for Daubert challenges is still appropriate.”). FRE 702 permits
testimony by an expert—someone with the requisite “knowledge, skill, experience,
training, or education”—to help the trier of fact “understand the evidence” or
“determine a fact in issue.” Fed. R. Evid. 702. An expert witness is permitted to
testify when (1) “the testimony is based on sufficient facts or data,” (2) “the
testimony is the product of reliable principles and methods,” and (3) the expert “has
reliably applied the principles and methods to the facts of the case.” Id.
Daubert tasks the district court with serving as the evidentiary gatekeeper,
ensuring that FRE 702’s requirements of reliability and relevance are satisfied
before allowing the finder of fact to hear the testimony of a proffered expert. See
Daubert, 509 U.S. at 589; see also Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147–
49 (1999). District courts have broad discretion in determining the admissibility of
expert testimony. See Gen. Elec. Co. v. Joiner, 522 U.S. 136, 142 (1997); Lapsley v.
Xtek, Inc., 689 F.3d 802, 810 (7th Cir. 2012).
In deciding whether to admit expert testimony, district courts employ a
three-part framework, ascertaining whether: (1) the expert is qualified by
knowledge, skill, experience, training, or education; (2) the reasoning or
methodology underlying the expert’s testimony is reliable; and (3) the expert’s
testimony will assist the trier of fact in understanding the evidence or determining
a factual issue. See Bielskis v. Louisville Ladder, Inc., 663 F.3d 887, 893–94 (7th
Cir. 2011). The proponent of the expert bears the burden of demonstrating that the
expert’s testimony satisfies the Daubert standard by a preponderance of the
evidence. Lewis v. CITGO Petroleum Corp., 561 F.3d 698, 705 (7th Cir. 2009).
While “[a]n opinion is not objectionable just because it embraces an ultimate
issue,” Fed. R. Evid. 704, expert opinions that “merely tell the jury what result to
reach” are inadmissible, id. 1972 Advisory Committee Notes. Moreover, “Rule
704 . . . does not provide that witnesses’ opinions as to the legal implications of
conduct are admissible.” United States v. Baskes, 649 F.2d 471, 479 (7th Cir. 1980);
see also Haley v. Gross, 86 F.3d 630, 645 (7th Cir. 1996) (suggesting that it would be
“improper[ ]” for an expert witness to “tell[ ] the jury why the defendants’ conduct
9

Case: 1:15-cv-09882 Document #: 305 Filed: 06/01/20 Page 10 of 34 PageID #:5843

was illegal” or “testify regarding the dictates of [the] law”). Accordingly, “expert
testimony as to legal conclusions that will determine the outcome of the case is
inadmissible.” Good Shepherd Manor Found., Inc. v. City of Momence, 323 F.3d
557, 564 (7th Cir. 2003). Experts “cannot testify about legal issues on which the
judge will instruct the jury.” United States v. Sinclair, 74 F.3d 753, 758 n.1 (7th
Cir. 1996).
II.

Class Certification

Class certification is governed by Federal Rule of Civil Procedure 23. Under
Rule 23(a), class certification is permitted only when: “(1) the class is so numerous
that joinder of all members is impracticable; (2) there are questions of law or fact
common to the class; (3) the claims or defenses of the representative parties are
typical of the claims or defenses of the class; and (4) the representative parties will
fairly and adequately protect the interests of the class.” Fed. R. Civ. P. 23(a); see
also Messner v. Northshore Univ. Healthsystem, 669 F.3d 802, 811 (7th Cir. 2012).
When class certification is sought pursuant to Rule 23(b)(3), “proponents of the class
must also show: (1) that the questions of law or fact common to the members of the
proposed class predominate over questions affecting only individual class members;
and (2) that a class action is superior to other available methods of resolving the
controversy.” Messner, 669 F.3d at 811 (citing Siegel v. Shell Oil Co., 612 F.3d 932,
935 (7th Cir. 2010)).
“Rule 23 does not set forth a mere pleading standard.” Parko v. Shell Oil Co.,
739 F.3d 1083, 1085 (7th Cir. 2014) (quotation marks omitted) (quoting Wal-Mart v.
Dukes, 564 U.S. 338, 350 (2011)). Rather, “[p]laintiffs bear the burden of showing
that a proposed class satisfies the Rule 23 requirements.” Messner, 669 F.3d at 811.
As such, when reviewing a motion for class certification, a court “may not simply
assume the truth of the matters as asserted by the plaintiff[s],” but instead must
receive evidence and resolve factual disputes as necessary to decide whether
certification is appropriate. Id. (citing Szabo v. Bridgeport Mach., Inc., 249 F.3d
672, 676 (7th Cir. 2001)). “[C]ertification is proper only if the trial court is satisfied,
after a rigorous analysis, that the prerequisites of Rule 23(a) have been satisfied.”
Wal–Mart, 564 U.S. at 350–51 (quotation marks omitted).
Although “the court should not turn the class certification proceedings into a
dress rehearsal for the trial on the merits,” Messner, 559 F.3d at 811, considerations
bearing on class certification often overlap with issues underlying the merits of the
plaintiffs’ claims. See Wal-Mart, 564 U.S. at 351; Retired Chi. Police Ass’n v. City of
Chi., 7 F.3d 584, 599 (7th Cir. 1993). A court must accordingly “make whatever
factual and legal inquiries are necessary to ensure that requirements for class
certification are satisfied before deciding whether a class should be certified, even if
those considerations overlap the merits of the case.” Am. Honda Motor Co. v. Allen,
600 F.3d 813, 815 (7th Cir. 2010) (citing Szabo, 249 F.3d at 676).
10

Case: 1:15-cv-09882 Document #: 305 Filed: 06/01/20 Page 11 of 34 PageID #:5844

This includes resolving any Daubert motions that are critical to class
certification. Id. at 815-16 (“We hold that when an expert’s report or testimony is
critical to class certification, as it is here, see Allen, 264 F.R.D. at 420 (‘Mr. Ezra’s
wobble decay standard . . . forms the basis of Plaintiffs’ theory of defect.’), a district
court must conclusively rule on any challenge to the expert’s qualifications or
submissions prior to ruling on a class certification motion.”).
Analysis
As noted above, “a district court must make the necessary factual and legal
inquiries and decide all relevant contested issues prior to certification,” including
resolving any critical Daubert motions. Am. Honda Motor Co. v. Allen, 600 F.3d
813, 817 (7th Cir. 2010). Accordingly, the court organizes the analysis in the
following way. First, it discusses the significant role a key question—whether a
common design defect proximately caused the putative class members’ injuries—
plays in the class certification analysis for Plaintiffs’ various claims. See Cates v.
Whirlpool Corp., No. 15-CV-5980, 2017 WL 1862640, at *16–17 (N.D. Ill. May 9,
2017) (discussing the centrality of a common defect to plaintiffs’ claims). Since
Plaintiffs rely on the proposed expert testimony of Robert O’Shea to show that this
question will result in common answers, the court next analyzes that testimony
under the standards for expert testimony set forth above. After resolving that
necessary legal inquiry, the court turns to the motion for class certification.
I.

Centrality of a Common Design Defect for Class Certification

It has been difficult to pin down exactly what issues bear on class
certification, as Plaintiffs’ proposed class definitions and claims have changed
significantly throughout the litigation. As already described, the amended
complaint originally set forth claims on behalf of a putative nationwide class as well
as a multitude of other state classes; Plaintiffs now limit their proposed classes to
consumers from Illinois, Indiana, California, and Ohio. Additionally, as explained
earlier, Plaintiffs’ proposed claims have gone through a number of different
iterations throughout the litigation. “[A]mbiguous arguments and pleadings create
a problem for [Rule 23] analysis because different unlawful practices will have
different essential elements, different defenses apply, and the case law concerning
the statutes will differ based upon the provision at issue in a given case.” Robinson
v. Gen. Elec. Co., No. 09-CV-11912, 2016 WL 1464983, at *10 (E.D. Mich. Apr. 14,
2016) (citation and quotation marks omitted).
Plaintiffs themselves explain that the question “[d]o the dishwashers suffer
from a defect?” is “the primary issue at the heart of plaintiffs’ claims.” (Dkt. 174 at
15 (sealed).) And despite the many differences among the state laws Plaintiffs rely
on for their claims, the central issues will include (1) the question of whether a
common design defect exists among all the putative class members’ dishwashers,
11

Case: 1:15-cv-09882 Document #: 305 Filed: 06/01/20 Page 12 of 34 PageID #:5845

(2) as to the Manifestation Classes, whether the design defect proximately caused
the failure of the dishwashers, and (3) as to the Non-Manifestation Classes,
whether the design defect proximately caused Plaintiffs’ economic injury in the form
of a loss in value. The first question is critical, because if there is no common design
defect, then it could not have caused damages.
These three issues run through the elements of each of Plaintiffs’ claims.
First, as to Plaintiffs’ strict products liability claims, the Illinois and California
Manifestation Classes will both have to prove (1) the existence of a defect in the
product, (2) that existed at the time it left the defendant’s control, and (3) that
proximately caused injury to the plaintiff. See Walker v. Macy’s Merch. Grp., Inc.,
288 F. Supp. 3d 840, 855 (N.D. Ill. 2017) (Illinois law); Baker v. Cottrell, Inc., No.
1:16-cv-00840, 2017 WL 6730572, at *3 (E.D. Cal. Dec. 29, 2017) (California law).
Plaintiffs may prove the existence of a design defect through either the “consumer
expectation” test, which asks whether the product does not perform as safely as an
ordinary consumer would expect, or the “risk-utility” test, which considers factors
such as the feasibility of an alternative design, the design’s conformance to industry
standards or regulatory guidelines, the utility of the product to the consumer and
the public, aspects of the product’s safety including the likelihood that it will cause
injury and probable seriousness of the injury, and the manufacturer’s ability to
eliminate the unsafe character of the product without eliminating its utility.
Jablonski v. Ford Motor Co., 955 N.E.2d 1138, 1154 (Ill. 2011) (Illinois law); Pannu
v. Land Rover N. Am., Inc., 120 Cal. Rptr. 3d 605, 615–18 (Cal. Ct. App. 2011)
(California law). 7 Accordingly, Plaintiffs in these two classes will have to set forth
common evidence of a design defect that caused their property damage.
Similarly, for Plaintiffs’ negligence claims, the California and Illinois
Manifestation Classes will have to show the existence of a defect and injury caused
by the defect, in addition to proving that the defect was due to the defendant’s
negligence. See Jablonski, 955 N.E.2d at 1154 (Illinois law); Merrill v. Navegar,
Inc., 28 P.3d 116, 124 (Cal. 2001) (California law). The Indiana Classes, whose
claims under the IPLA sound in negligence, must show that “the manufacturer or
seller failed to exercise reasonable care . . . in designing the product.” Aregood v.
Givaudan Flavors Corp., 904 F.3d 475, 488 (7th Cir. 2018) (quoting Ind. Code § 3420-2-2). Evidence of a design defect under this standard may take a variety of
forms. See Kaiser v. Johnson & Johnson, No. 2:17-CV-114, 2018 WL 739871, at *5–
6 (N.D. Ind. Feb. 7, 2018) (citing TRW Vehicle Safety Sys., Inc. v. Moore, 936 N.E.2d
201, 209 n.2 (Ind. 2010)). With few exceptions, Indiana requires that defendant’s
negligence must result in physical damage and does not permit damages for pure
In practice, the two tests often merge, because the risk-utility test encompasses consumer
expectations and should be used if there is evidence implicating both tests. See Walker, 288
F Supp. 3d at 857–58.

7

12

Case: 1:15-cv-09882 Document #: 305 Filed: 06/01/20 Page 13 of 34 PageID #:5846

economic losses. See Progressive Ins. Co. v. Gen. Motors Corp., 749 N.E.2d 484,
487–91 (Ind. 2001). Accordingly, as a general matter, Plaintiffs’ negligence claims
would require similar common proof as their strict products liability claims
regarding the existence of a design defect and causation of property damage.
As for Plaintiffs’ implied warranty of merchantability claims, the NonManifestation Classes and California Manifestation Class will, in general, have to
show that the product’s failure to meet a minimum quality standard caused harm to
the consumer. See, e.g., Castagna v. Newmar Corp., No. 3:15-CV-249, 2018 WL
4335130, at *5 (N.D. Ind. Sept. 11, 2018) (Indiana law); Hawkins v. Medtronic, Inc.,
909 F. Supp. 2d 901, 910 (S.D. Ohio 2012) (Ohio law); Gertz v. Toyota Motor Corp.,
No. CV 10-1089, 2011 WL 3681647, at *4 (C.D. Cal. Aug. 22, 2011) (California law);
Alvarez v. Am. Isuzu Motors, 749 N.E.2d 16, 22–23 (Ill. App. Ct. 2001) (Illinois law).
For the California Manifestation Class, this standard can be met by showing that
the product failed to perform as expected. See Brand v. Hyundai Motor Am., 173
Cal. Rptr. 3d 454, 459–60 (Cal. Ct. App. 2014). For the Non-Manifestation Classes,
the Plaintiffs will have to show that the existence of the defect affected the product’s
value. See, e.g., In re Gen. Motors LLC Ignition Switch Litig., 339 F. Supp. 3d 262,
289 (applying Ohio law); Miller v. William Chevrolet / GEO, Inc., 762 N.E.2d 1, 10
(Ill. App. Ct. 2001) (“Illinois courts have generally allowed damages claims based on
diminished value of a product regardless of whether it has yet malfunctioned.”).
Finally, Plaintiffs’ fraud claims will require proof of reliance on a material
misrepresentation or omission and resulting damages. See Wigod v. Wells Fargo
Bank, 673 F.3d 547, 569–71 (7th Cir. 2012) (Illinois law); Armbrister v. Pushpin
Holdings, LLC, 896 F. Supp. 2d 746, 754 (N.D. Ill. 2012) (same); Daniel v. Ford
Motor Co., 806 F.3d 1217, 1225–26 (9th Cir. 2015) (California law); Oestreicher v.
Alienware Corp., 544 F. Supp. 2d 964, 974 (N.D. Cal. 2008) (same); Jones v.
Bridgepoint Educ., Inc., No. 1:16-cv-338, 2017 WL 2438461, at *4 (N.D. Ind. June 5,
2017) (Indiana law); Jackson v. Blanchard, 601 N.E.2d 411, 418–19 (Ind. Ct. App.
1992) (same); Stanich v. Travelers Indem. Co., 249 F.R.D. 506, 515 (N.D. Ohio 2008)
(Ohio law).
Plaintiffs argue that their implied warranty of merchantability and fraud
claims do not require proof of a specific defect. This may be true, as far as it goes.
See Tucker v. Soy Cap. Bank & Tr. Co., 974 N.E.2d 820, 833–34 (Ill. App. Ct. 2012)
(Illinois fraud); Pemberton v. Nationstar Mortg. LLC, 331 F. Supp. 3d 1018, 1043
(S.D. Cal. 2018) (California fraud); Buchanan v. Improved Props., LLC, 7 N.E.3d
634, 642 (Ohio Ct. App. 2014) (Ohio fraud); Ind. Code § 24-0.5-3 (Indiana fraud);
Alvarez, 749 N.E.2d at 22–23 (Illinois breach of the implied warranty of
merchantability); Castagna, 340 F. Supp. 3d at 736 (Indiana breach of the implied
warranty of merchantability). But as to key elements of these claims—namely, that
Electrolux failed to meet a minimum quality standard for the dishwashers and
thereby harmed Plaintiffs—Plaintiffs attempt to tie the class members together
13

Case: 1:15-cv-09882 Document #: 305 Filed: 06/01/20 Page 14 of 34 PageID #:5847

with proof of a common design defect. See, e.g., Cates v. Whirlpool Corp., No. 15-CV5980, 2017 WL 1862640, at *16–18 (N.D. Ill. May 9, 2017); Robinson, 2016 WL
1464983, at *13 (“Ordinarily . . . the CLRA . . . [does not] require [ ] Plaintiffs to
establish a product defect. Here, however, Plaintiffs’ claims of concealment, failure
to warn[,] and misrepresentation depend upon the existence of a product defect.”).
Similarly, although Plaintiffs argue that they need not show the likelihood of the
dishwashers’ defect manifesting for their implied warranty of merchantability and
fraud claims, they attempt to show that they suffered a common loss in the
products’ value arising out of the defect—which could not be the case if the defect
presented no risk. See, e.g., Barakezyan v. BMW of N. Am., LLC, 715 F. App’x 762,
763 (9th Cir. 2018) (noting that economic damages could be available for
“substantial safety hazards” that had not yet manifested); Miller, 762 N.E.2d at 10;
see also Mickens v. Ford Motor Co., No. 10-CV-5842, 2015 WL 5310755, at *10
(D.N.J. Sept. 10, 2015) (applying New Jersey law and noting that “failing to inform .
. . consumers of the possibility of failure” does not constitute fraud) (emphasis in
original).
Plaintiffs’ entire case therefore hinges on the question of whether there is a
common design defect, and in turn whether such a defect proximately caused the
injuries of the putative class members, in the context of both property damage and
economic loss. To show that the question whether there is a common design defect
is apt to yield common answers, Plaintiffs rely on the opinions of their engineering
expert, Robert O’Shea, Jr., of Applied Materials Technology Inc. (“AMTI”). O’Shea
opines that there is indeed a common design defect that caused similar problems
among all the class dishwashers, such that Electrolux’s liability to the class
members can be determined in “one fell swoop.” Pella Corp. v. Saltzman, 606 F.3d
391, 394 (7th Cir. 2010). The court thus turns to Electrolux’s motion to bar O’Shea
as an expert witness under the principles of Daubert.
II.

Electrolux’s Motion to Bar O’Shea

Plaintiffs hired O’Shea, the principal engineer at AMTI, to opine as to the
possible causes of the failure of Plaintiffs’ dishwashers. O’Shea examined five of the
named Plaintiffs’ dishwashers, reviewed testing done following a joint inspection of
the dishwashers, studied industry standards and documents obtained in discovery
in this case, and built and analyzed a test dishwasher. Electrolux moves to exclude
O’Shea’s opinions, arguing that his opinions will be unhelpful to the jury because
they do not specify a common design defect, that his opinions and methodology are
unreliable, and that he is unqualified to opine about common design defects.
A.

Qualifications

O’Shea is a registered professional engineer with a B.S. in metallurgical and
material engineering from the Illinois Institute of Technology and an M.S. in
14

Case: 1:15-cv-09882 Document #: 305 Filed: 06/01/20 Page 15 of 34 PageID #:5848

material science and engineering from the University of Notre Dame. (O’Shea
Report, App’x 1, O’Shea CV at 1, Dkt. 175-1 (sealed).) He is the principal engineer
and senior metallurgical engineer at AMTI and has over 30 years’ experience in
“comprehensive failure analysis investigations.” (Id.) These investigations have
included “field project management, utility gas electric and steam investigations,
gas turbines, petroleum refineries accident investigation, code compliance
(industrial and marine), maintenance, marine failure analysis and engineering,
materials engineering, welding technologies, accident reconstruction, fire cause and
origin determination . . . and corrosion.” (Id.) He has developed test protocols for
investigations involving fires, gas explosions, dust explosions, incidents in process
plant operations, boiler explosions, utility explosions (gas and electric), and other
industrial incidents. (Id. at 2.) His career has focused on “design evaluation,
materials selection, engineering, fabrication, inspection & examination, and testing
of plant equipment related to the energy industries (electric, gas and steam) marine
industry and petrochemical industries.” (O’Shea Report at 2.) O’Shea has led or
assisted on over 350 forensic investigations aimed at determining the cause of
failures and accidents. (Id.)
Electrolux argues that O’Shea is unqualified to opine as to issues in this case
because he “has no experience as a design engineer for a consumer product” and has
never before offered opinions about common design defects. (Def.’s Mem. Supp.
Mot. Bar O’Shea at 15, Dkt. 193 (sealed), Dkt. 195 (public).) Although Plaintiffs do
not dispute these facts, they contend that O’Shea may still be qualified as an expert.
Plaintiffs are correct. Although O’Shea may never have designed a product himself,
he has spent the last thirty years involved in complex failure analyses of various
products and systems. See In re Fluidmaster, Inc., Water Connector Components
Prod. Liability Litig., No. 14-CV-5696, 2017 WL 1196990, at *5 (N.D. Ill. Mar. 31,
2017) (“Plaintiffs stress that Meek ‘has never designed a plastic part himself’ . . .
but never grapple with the fact that Meek spent the last forty years analyzing the
failure of products he did not personally design.”). O’Shea’s opinions are aimed at
determining the cause of the dishwashers’ failure—an issue squarely within his
expertise in failure analysis.
O’Shea’s experience and training in the field of mechanical engineering—
combined with his focus in fires, explosions, materials, and fabrication—provide
him with a sufficient basis to opine as to the alleged materials selection and failure
in this case. The mere fact that O’Shea has never offered expert testimony on this
particular issue before does not render him unqualified. See, e.g., United States v.
Robinson, 404 F. App’x 77, 81 (7th Cir. 2010); Baker v. Buffenbarger, No. 03-C-5443,
2006 WL 140548, at *5 (N.D. Ill. Jan. 13, 2006) (“[C]ourtroom experience is not the
relevant inquiry; rather, it is experience in the relevant field that counts.”).

15

Case: 1:15-cv-09882 Document #: 305 Filed: 06/01/20 Page 16 of 34 PageID #:5849

Accordingly, the court concludes that O’Shea is qualified to offer opinions
concerning common design defects. 8
B.

O’Shea’s Methodology and Opinions

Electrolux next argues that O’Shea’s opinions will not be helpful to the jury
and are unreliable. In assessing the reliability of an expert’s testimony, Rule 702
requires the district court to evaluate whether the testimony “is based on a correct
application of a reliable methodology and that the expert considered sufficient data
to employ the methodology.” Stollings v. Ryobi Tech., Inc., 725 F.3d 753, 766 (7th
Cir. 2013). Further, “‘Daubert offers a non-exclusive list of factors to aid judges in
determining whether [a] particular expert opinion is grounded in reliable scientific
methodology. Among the factors articulated are: (1) whether the proffered theory
can be and has been tested; (2) whether the theory has been subjected to peer
review; (3) whether the theory has been evaluated in light of potential rates of error;
and (4) whether the theory has been accepted in the relevant scientific community.’”
Winters v. Fru–Con Inc., 498 F.3d 734, 742 (7th Cir. 2007) (quoting Dhillon v.
Crown Controls Corp., 269 F.3d 865, 869 (7th Cir. 2001)). District judges have
“considerable leeway in deciding in a particular case how to go about determining
whether particular expert testimony is reliable.” Kumho, 526 U.S. at 152. As for
helpfulness, the court considers whether “scientific, technical[,] or other specialized
knowledge” offered by the expert is necessary to assist the jury in determining any
issues of fact. Id. at 741 (quoting Kempner Mobile Elecs., Inc. v. Sw. Bell Mobile
Sys., 428 F.3d 706, 712 (7th Cir. 2005)).
The court agrees that O’Shea’s opinions—like Plaintiffs’ class definitions—
are difficult to pin down. In his initial report, he set forth six opinions: (1) the “poor
design” of the heating elements and the “insufficiency” of the materials used makes
them “unable to maintain their shape and remain at a safe distance from the plastic
tub” during normal use; (2) the “mounting clips that hold the heating elements are
defective in that their design and the number of clips used are insufficient to
maintain the integrity and distance of the heating element from the surface of the
tub,” (3) the use of polypropylene with a UL 94 HB flammability rating is
“inappropriate for use in this high heat application,” (4) the design of the heating
element when used in conjunction with the UL 94 HB rated polypropylene and the
“design / number of the clips used to hold it” all “contribute individually and
collectively” to the defect; (5) Electrolux knew “early on” that the structural
Electrolux also argues that O’Shea, during a deposition, started to ask “what is a common
design defect” before Plaintiffs’ counsel cut him off. (Def.’s Mem. Supp. Mot. Bar O’Shea at
15.) This is not a basis for concluding that O’Shea is unqualified to offer opinions in this
case. The definition of a “design defect” is a legal issue that varies from state to state.
See supra, Analysis, Section I. As an engineer, O’Shea would not be expected to know the
precise legal definitions that apply to this case.
8

16

Case: 1:15-cv-09882 Document #: 305 Filed: 06/01/20 Page 17 of 34 PageID #:5850

integrity of the Zoppas heating elements was “problematic,” and (6) “[a]ll of the
aforementioned deficiencies create a significant safety defect present at the point of
sale of all the subject dishwashers” that would not be discoverable by consumers.
(O’Shea Report at 8, 32–33.)
These conclusions are based on O’Shea’s observation and review of testing
done on several of the named Plaintiffs’ dishwashers, as well as his analysis of a
test dishwasher. 9 In particular, O’Shea looked at X-rays of the heating elements,
which consist of “spiral wound nichrome wire, inside a round tube.” (Id. at 21.)
O’Shea noted that some of the X-rays showed “some locations on several of the
heaters where the two coil spacing goes from be[ing] equally spaced from one pitch
of the wire wrap to the next, to a point where the two wire spaces become close to
zero and then the pitch also become[s] smaller tha[n] the equally spaced wire
locations.” From that, O’Shea concluded that “[t]his change in the double helix
heating elements spacing and pitch generates selective over-heating and underheating in certain areas” that may result in “warpage forces.” (Id.) Furthermore,
he looked at tests for the plastic tubs that determined the onset of thermal
decomposition (between 780.8˚–795.2˚), the peak melting temperatures (between
327.61˚–332.39˚), and the onset melting temperatures (between 303.51˚–305.24˚). 10
(Id. at 22-24.) O’Shea then ran a test dishwasher on various temperature and wash
cycles. In these tests, the heating element attained temperatures between 605˚–
745˚, and the plastic tub attained temperatures between 221˚–293˚. (Id. at 26.)
Accordingly, O’Shea explained, “[i]f the heating element sags or slumps at all it has
the potential to melt the polypropylene tub.” (Id.)
O’Shea further addressed the heating element in a supplemental report he
wrote after reviewing the reports of Electrolux’s experts, Scott D. Rasjeza, Dr.
James J. Mason, and Dr. Donald J. Hoffman. (See Pls.’ Mem. Supp. Mot. Class
Cert., Ex. C, O’Shea Suppl. Report at 2, Dkt. 175-2.) First, O’Shea agreed with
Rasjeza and Mason that the heating element may have warped for a number of
other reasons besides the “coil pitch” discrepancies he identified in his initial report,
including (1) faults in the heater control system, (2) errant high supply voltage, (3)
supplier shipping and packaging issues, (4) assembly issues, and (5) user issues
such as poor loading of dishracks. (Id. at 4–5, 10.) Furthermore, O’Shea agreed
with Rasjeza’s assessment that the coil pitch discrepancies were not present in all
the X-rays of Plaintiffs’ heating elements. (Id. at 5–6.) Rather, the discrepancies
The parties engaged Engineering Systems, Inc. for a joint inspection and testing of seven
dishwashers belonging to named Plaintiffs—Williams, Cisco, Ferguson, Elward,
McLaughlin, Keesler, and the Becks. (See O’Shea Report at 6–8 & n.1.) Because Plaintiffs
elected not to proceed with Keesler and Ferguson as class representatives, O’Shea did not
include the testing done on their dishwashers in his report. (See id.)
9

10

All temperatures are in Fahrenheit.

17

Case: 1:15-cv-09882 Document #: 305 Filed: 06/01/20 Page 18 of 34 PageID #:5851

were observed only in heating elements that contained double-coiled wires
(described as “dual-winding”), not in those containing only single-coiled wires
(described as “single-winding”)—and not all of the named Plaintiffs’ heating
elements had dual-winding elements. (Id. at 4–6.) Yet all of the elements warped,
leading O’Shea to conclude that “[s]ince the artifact was not observed in the singlewinding warped heater element, and only in the dual-winding heater elements, . . .
[t]his could not be an artifact if it is not seen in the single element warped heater
elements as well.” (Id. at 5.) O’Shea admitted in his deposition that he did not
conduct an analysis to determine what caused the heating elements to warp. (Defs.’
Resp. Mot. Class Cert., Ex. 8, O’Shea Dep. at 194:1-3, Dkt. 185-22 (sealed).)
In his supplemental report, O’Shea went on to state that it actually does not
matter why the heating elements warped, because the defect is actually a “system
failure, not simply a component failure.” (O’Shea Suppl. Report at 3.) Put
differently, the “overall heater coil/contaminant plastic tub system design (clips and
heater element warpage, etc.) along with its interaction with the tub material
directly below the heater elements that meets only a UL 94 HB flammability
requirement” has the “potential to cause the dishwasher” to melt or ignite. (Id. at
13.) Accordingly, he said, “[t]here can be many causes as well as enablers, any
number of which lead to the failure of the heater element/tub system.” (Id. at 8–9.)
In a deposition, O’Shea offered similar opinions, explaining that “[t]he causes are
irrelevant. As long as the heating element melts the plastic itself or sags or warps
or causes melting of the plastic itself, that’s the problem.” (O’Shea Dep. at 193:1824.) Plaintiffs employ this characterization of the defect to argue that class
certification is warranted based on a “system-wide defect” in the dishwashers. (Pls.’
Mem. Supp. Mot. Class Cert. at 1.)
O’Shea’s acknowledgement that the heating elements may warp for a variety
of reasons means that the heating element, by itself, cannot support a design defect
common to the classes. In other words, if some consumers’ heating elements
warped because of a coil pitch discrepancy, others warped because of shipping
problems, others because of manufacturing issues, and still others because of
inappropriate dish loading, that does not represent a common design defect for
which Electrolux may be liable to an entire class. See In re Bridgestone / Firestone,
Inc., 288 F.3d 1012, 1018–19 (7th Cir. 2002); Cates, 2017 WL 1862640, at *14, 18–
19; Robinson, 2016 WL 1464983, at *3, 5. True, it does not matter if there are
multiple possible causes if one identified cause is a common design defect. See
Fluidmaster, 2017 WL 1196990, at *25 (“The fact that chlorine exposure might
make Defendant’s product fail does not preclude the possibility that Defendant’s
product is made of substandard materials.”); Wolin v. Jaguar Land Rover N. Am.,
LLC, 617 F.3d 1168, 1173 (9th Cir. 2010) (“Although individual factors may affect
premature tire wear, they do not affect whether the vehicles were sold with an
alignment defect.”). But this principle still requires evidence of a design defect
common to the class. O’Shea acknowledged that he does not know why the heating
18

Case: 1:15-cv-09882 Document #: 305 Filed: 06/01/20 Page 19 of 34 PageID #:5852

elements warp and that his theory about the coil pitch discrepancies does not apply
to all the class members’ heating elements. The testimony thus does not set forth
such a common defect with respect to the heating elements themselves.
Taking O’Shea and Plaintiffs at their word, however, the defect is not just the
heating elements themselves but the “system” that should, but does not always,
prevent melting of the tub when the heating element warps or sags for whatever
reason. (See O’Shea Dep. at 193:18-24.) Essentially, Plaintiffs contend, because the
melting temperatures for the plastic tub are lower than the temperatures attained
by the heating element, if the heating element touches or gets too close to the
plastic, it will melt. The alleged common defect, then, turns significantly on the two
other elements—the plastic tubs and the clips used to hold the heating elements
into place.
But defining the defect this way means that O’Shea’s opinions have little
reliability or likelihood of helping the jury. First, as to the plastic tubs, O’Shea
stated that the “94HB Horizontal Burning Test”—which corresponds to the UL
rating of Electrolux’s plastic tubs—is “generally considered the easiest test to pass”
and “would typically be acceptable for portable, attended, intermittent-duty,
household-use appliance enclosures (i.e., hair dryers) or for decorative parts.”
(O’Shea Report at 29.) He has not offered a scientific or other basis for this
opinion—his only other opinions about the plastic amount to little more than an
observation that the plastic has a melting temperature lower than the temperature
attained by the heating elements. Although experts are sometimes permitted to
rely on general knowledge they have attained in a particular field, they still must
employ the “same level of intellectual rigor that characterizes the practice of an
expert in the relevant field.” Kumho Tire, 526 U.S. at 148–52; see also Chapman v.
Maytag Corp., 297 F.3d 682, 688 (7th Cir. 2002); Owens v. Ford Motor Co., 297 F.
Supp. 2d 1099, 1109 (S.D. Ind. 2003); cf. Fluidmaster, 2017 WL 1196990, at *8
(“Plainly, these opinions derive from Dr. Rao’s specialized knowledge related to
survey design. . . .”).
Here, the reliability of O’Shea’s opinion concerning the UL standard is
significantly undercut by his admission that competitor brands use the same
plastic. (See O’Shea Suppl. Report at 9); see also Cates, 2017 WL 1862640, at *15;
Dhillon, 269 F.3d at 870–71. In his supplemental report, O’Shea acknowledged this
point, stating: “Dr. Mason notes that many of Electrolux’s competitors use the same
HB plastic to construct the tubs. What Dr. Mason does not mention is that they
also use more robust clips.” (O’Shea Suppl. Report at 9.) In other words, when
faced with the ubiquity of the relevant plastic across the industry, O’Shea did not
defend or try to justify his opinion that the plastic is generally insufficient for use in
dishwashers. Instead, he opined that the plastic is only problematic when it comes
into contact with the heating element; i.e., when the metal clips fail. Accordingly,
under O’Shea’s view, the alleged defect essentially comes down to the metal clips—
19

Case: 1:15-cv-09882 Document #: 305 Filed: 06/01/20 Page 20 of 34 PageID #:5853

the “system” that is supposed to keep the heating elements and plastic from
touching.
But the clips alone do not supply a basis for a common design defect. O’Shea
has provided little in the way of scientific analysis or testing to support such a
theory. In his initial report, O’Shea merely explained that the clips are
“insufficient” in “design and . . . number.” (O’Shea Report at 32.) Rather than
explaining with any specificity what features made the clips’ design insufficient—
such as the material used, shape, size, attachment to the tub, he simply noted that
“[b]oth the vertical mounting clip portion as well as the horizontal mounting clip
prongs were found to have serious bend deformations” (id. at 30), and that “[t]he
current design of the subject dishwashers fails to account for the lack of robustness
of the current mounting clips and the ramifications that occur when the heating
element moves too close to the polypropylene bottom tub. With the distance of
separation is compromised, the polypropylene material only rated at UL 94 HB, is
also compromised leading to the plastic melting described in the preceding section”
(id.). He also attached photos of Electrolux’s clips (pictured below).

(Id. at 14–15.) O’Shea suggested that, instead of these clips, Electrolux could use a
“solid fixture clip” such as that used by Sears Kenmore (pictured below), which
“holds the heating element securely in place and cannot bend or fall out.” (Id. at
30.)

20

Case: 1:15-cv-09882 Document #: 305 Filed: 06/01/20 Page 21 of 34 PageID #:5854

(Id. at 31.) Alternatively, he explained, Electrolux could opt for clips like those used
by General Electric (pictured below), where “the metal ring is completely enclosed
around the heating element and again, there is no possible way for the heating
element to dislodge from its holder.” (Id.)

(Id.) As to the number of clips, O’Shea seemed to indicate that simply substituting
a different type of clip might not be feasible. He stated that “[s]imply trying to use
a more robust, stiffer mounting clip could seriously compromise the relatively low
strength, low elastic modulus of the bottom basin tub polymer when the design calls
for only two mounting clip locations. A true fix of this problem would necessitate a
completely new design.” (Id. at 30.) He continued by appearing to suggest
additional clips: “A design calling for more than two mounting clips along the
perimeter/circumference of the heating element could have prevented the heating
element from easily dislodging and falling to within unacceptable clearances to the
bottom tub. Using one or two additional mounting clips of the same type as the
OEM design could have lowered the forces acting on this tub to heat element
connection thus handling the imposed stresses.” (Id.) He summarized these
opinions in his conclusions. (Id. at 32.) In his supplemental report, O’Shea did not
expound significantly on these opinions. Instead, he merely stated that a “slightly
more robust clip design (i.e. solid Fixture clip) would eliminate” bending and
warping concerns, and that the “design and the number of clips used are insufficient
to maintain the integrity and distance of the heating element from the surface of
the tub and maintain their location during operation.” (O’Shea Suppl. Report at 9–
10.)
It is not clear that O’Shea tested these opinions or that they are testable.
As an initial matter, O’Shea’s opinion about the insufficiency of the “number” of
Electrolux’s clips lacks specificity. Electrolux’s design uses two clips; General
Electric’s design, like Electrolux’s, may also use two (although it is not entirely clear
from the picture whether it uses two or three), and there is no evidence of how many
clips Sears Kenmore’s design uses. (See O’Shea Report at 31.) Even if the purpose
of the photos was not to address the number of clips but their design, O’Shea does
21

Case: 1:15-cv-09882 Document #: 305 Filed: 06/01/20 Page 22 of 34 PageID #:5855

not offer any reliable scientific information about the “design” of the clips. He
simply attaches photos of the clips and makes what appear to be anecdotal
observations about them. It is not clear how O’Shea knows that there is no possible
way for the heating element to warp and approach the surface of the tub despite
General Electric’s clips or Sears Kenmore’s clips. (O’Shea Report at 30–31.) Nor is
it clear whether O’Shea tested these conclusions. Without any underlying basis for
the conclusions about the various clips, the jury would be left with simply
comparing the photographs—something it could do without expert testimony.
While observations based on experience may suffice in some cases, in a case
such as this, where O’Shea’s opinions both rest on comparison to other products and
extrapolate to a very substantial number of products (as discussed below), he must
provide some reliable, empirical basis for his conclusion that the alternatives are
superior. See Dhillon, 269 F.3d at 869–70 (explaining that in “alternative design”
cases, testing of the alternatives is important, as is considering various factors
related to the utility of the alternatives); see also Winkler v. Madix, Inc., No. 16 C
341, 2018 WL 4286197, at *4 (N.D. Ill. Sept. 7, 2018); Padilla v. Hunter Douglas
Window Coverings, Inc., 14 F. Supp. 3d 1127, 1136 (N.D. Ill. 2014). The opinions
about the clips appear to be based on mere personal observation. See Chapman,
297 F.3d at 688 (“Personal observation is not a substitute for scientific methodology
and is insufficient to satisfy Daubert’s most significant guidepost.”); Cates, 2017 WL
1862640, at *15 (“[W]ithout any articulation of the underlying technical principles
upon which [the expert] relied, let alone any testing, invoking experience is not
enough.”). Without a sufficiently reliable basis for what is defective about
Electrolux’s clips or what could be better about its competitors’ clips, the testimony
is unhelpful to the jury.
There are other issues with the proposed testimony beyond the lack of a
specific, common design defect. In particular, there is little basis for an
extrapolation from O’Shea’s observation of the named Plaintiffs’ five dishwashers to
the thousands, if not millions, of dishwashers implicated by this case. The record
contains some support for the notion that Electrolux’s plastic-tub dishwashers have
always used the same or similar components and design with respect to the heating
elements, plastic tub, and clips. (See Pls.’ Resp. Mot. Bar O’Shea, Ex. E, Mason
Dep. at 151:13–152:12, Dkt. 223-5 (sealed); id., Ex. F, Verma Dep. at 69:20–70:6,
Dkt. 223-6 (sealed); id., Ex. C, Poyner Dep. at 153:10-16, 157:16-20, Dkt. 223-3
(sealed) (“Poyner Dep. II”)). But other evidence, including that observed by O’Shea,
suggests that the relevant components have been subject to design and
manufacturing changes over the years—such as the fact that certain of the heating
elements had dual-winding coils as opposed to single-winding coils. (See O’Shea
Suppl. Report at 5.) In fact, O’Shea even testified that he was aware that there
were a lot of different model dishwashers during the relevant time period. (O’Shea
Dep. at 267:3-7.) Ordinarily, the manifestation rate—or how common a design
defect is among the relevant class—would go to the weight assigned to an expert’s
22

Case: 1:15-cv-09882 Document #: 305 Filed: 06/01/20 Page 23 of 34 PageID #:5856

opinion, not the reliability. But here, where O’Shea has otherwise failed to explain
a design defect common even to the five dishwashers he studied, his extrapolation
to many more dishwashers is unreliable. See Cates, 2017 WL 1862640, at *14;
Mednick v. Precor, Inc., No. 14 C 3624, 2016 WL 3213400, at *5 (N.D. Ill. June 10,
2016) (“Mednick I”).
In sum, the proposed testimony does not set forth a reliable, testable, or
helpful theory as to how all the dishwashers used by the proposed classes were
defective in a common way. Instead, it sets forth various theories as to multiple
components of the dishwashers, each of which falls apart under scrutiny. The
testimony does not identify a specific design defect or connect it to each of the class
members’ dishwashers in some empirically based manner, and thus does not set
forth opinions that fit Plaintiffs’ arguments supporting their claims for class
certification. See, e.g., Cates, 2017 WL 1862640, at *12; Fluidmaster, 2017 WL
1196990, at *27. Plaintiffs have not met their burden of establishing that O’Shea’s
testimony will be helpful to the jury in establishing that the class members have
suffered a common injury. Accordingly, the court grants Electrolux’s motion to bar
O’Shea as an expert in this case. 11
III.

Class Certification

Defendants argue—and the court agrees—that, without O’Shea’s testimony
setting forth a common design defect, Plaintiffs cannot meet the standard for class
certification under Rules 23(a) and (b)(3). 12 As explained below, the lack of support
for a common design defect means that Plaintiffs cannot demonstrate that “class
members ‘have suffered the same injury’ at the hands of the same defendant.”
McCaster v. Darden Rests., Inc., 845 F.3d 794, 800 (7th Cir. 2017) (quoting WalMart Stores, Inc. v. Dukes, 564 U.S. 338, 349–50 (2011)). Accordingly, Plaintiffs are
unable to meet the requirements of commonality, typicality, predominance, and
superiority. Furthermore, additional issues concerning the breadth and scope of
Plaintiffs’ claims make it difficult for Plaintiffs to meet other requirements such as
ascertainability and adequacy of the class representatives. The court begins this

As discussed below, because Plaintiffs cannot meet the standard for class certification
with or without O’Shea’s testimony, the court need not decide whether to bar the remaining
experts. Accordingly, the court strikes Plaintiffs’ Motion to Bar Defendant’s Experts [197]
[199], Defendant’s Motion to Bar Gaskin [196], and Defendant’s Motion to Bar Weir [201] as
moot.

11

At oral argument, Plaintiffs’ counsel suggested that a class could be certified pursuant to
Rule 23(c)(4); however, Plaintiffs have not moved for class certification under this
subsection. In any event, as discussed below, the court cannot discern any common issues
that would be appropriate or manageable for certification under Rule 23(c)(4).

12

23

Case: 1:15-cv-09882 Document #: 305 Filed: 06/01/20 Page 24 of 34 PageID #:5857

analysis with the problems caused by the lack of evidence of a common design
defect, and then moves to other relevant considerations.
A.

Commonality, Typicality, and Predominance: Absence of a
Common Design Defect

Defendants argue that because of the lack of a common injury in the form of a
common design defect among all the class members’ dishwashers, there will be little
in the way of common questions in the litigation, a lack of typicality among the class
members’ claims, and a strong likelihood that individual questions will predominate
over common questions.
As for commonality, Plaintiffs must show that there are “questions of law or
fact common to the class.” Fed. R. Civ. P. 23(a)(2). Although “even a single common
question will do,” Wal-Mart, 564 U.S. at 359, superficially common questions are
insufficient, Jamie S. v. Milwaukee Pub. Schs., 668 F.3d 481, 497 (7th Cir. 2012).
Rather, putative class members’ “claims must depend upon a common contention”
that is “of such a nature that it is capable of classwide resolution—which means
that determination of its truth or falsity will resolve an issue that is central to the
validity of each one of the claims in one stroke.” Wal-Mart, 564 U.S. at 350.
Similarly, typicality under Rule 23(a)(3) requires that the named plaintiff’s
claims “arise[ ] from the same event or practice or course of conduct that gives rise
to the claims of other class members” and “are based on the same legal theory.”
Keele v. Wexler, 149 F.3d 589, 595 (7th Cir. 1998). Where problems arise with
regard to satisfying either the typicality or commonality requirements, the analyses
“tend to merge.” Priddy v. Health Care Serv. Corp., 870 F.3d 657, 660 (7th Cir.
2017) (quoting Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 157 n.13 (1982)).
Finally, the predominance inquiry under Rule 23(b)(3) asks whether “the
common, aggregation-enabling, issues in the case are more prevalent or important
than the non-common, aggregation-defeating, individual issues.” Tyson Foods, Inc.
v. Bouaphakeo, 136 S. Ct. 1036, 1045 (2016) (citation omitted). “While similar to
Rule 23(a)’s requirements for typicality and commonality, the predominance
criterion is far more demanding.” Messner, 669 F.3d at 814 (quotation marks and
citation omitted).
Plaintiffs pose the following question, allegedly common to the class: are all
the class members’ dishwashers defective such that the heating element may melt
the plastic tub, thereby causing flooding and possibly fires? 13 As previously
discussed, the answer to this question is critical to Plaintiffs’ claims, which
Although Plaintiffs propose other possible common questions, each of their additional
common questions derives from this question.

13

24

Case: 1:15-cv-09882 Document #: 305 Filed: 06/01/20 Page 25 of 34 PageID #:5858

Plaintiffs acknowledge all rest on this same “fundamental issue.” (Pls.’ Reply Supp.
Mot. Class Cert. at 6, Dkt. 209 (sealed), 210 (public).) Plaintiffs’ question is
superficially common to the class. But because there is no evidence to suggest that
Plaintiffs’ dishwashers are all afflicted with a common design defect that causes a
common failure, this question is unlikely to “generate common answers apt to drive
the resolution of the litigation.” Wal-Mart Stores, Inc., 564 U.S. at 350 (quotation
omitted) (emphasis in original).
As already described, O’Shea’s expert opinion—on which Plaintiffs rely
heavily for their class certification arguments—does not support a common design
defect, as opposed to many possible reasons for failure, design-related or otherwise.
This is true whether the defect is defined as a problem with the heating elements, a
problem with the “system” encompassing the heating elements, plastic tub, and
metal clips, or a generalized failure to account for the possibility of a heatingelement defect. First, as to the heating elements, there is insufficient evidence of a
problem common to the entire class. Take, for instance, O’Shea’s proposed
testimony that “coil pitch discrepancies” cause the Zoppas heating elements to
selectively over- and under-heat. (See O’Shea Report at 21.) Since he later
acknowledged that this problem was seen in only some, but not all, of the heating
elements, it is far from clear that the Zoppas heating elements constitute a common
problem for all the class dishwashers. O’Shea also acknowledged that there are
many different reasons that may cause the heating elements to fail—including
issues that go beyond design.
As for the concept of a “system” defect, O’Shea’s opinion also fails to set forth
a defect common to the class. O’Shea does not provide reliable, testable opinions
about the design of the heating element, plastic tub, and clips that could support a
conclusion about a common defect. Since Rule 23 “does not set forth a mere
pleading standard,” Plaintiffs cannot rely on mere allegations at this stage. WalMart Stores, Inc., 564 U.S. at 350. O’Shea’s “system defect” theory fails to identify a
specific defect (or set of defects). Instead, according to Plaintiffs, it does not matter
why the heating elements fail because the problem is the plastic tubs and metal
clips; however, it is not necessary to identify a specific problem with the plastic tubs
and metal clips because the problem is the entire “system.” The court is thus left
with three components—each of which could be defective or not, and each of which
may or may not be the proximate cause of any melting, flooding, or fires. See
Cholakyan v. Mercedes-Benz, USA, LLC, 281 F.R.D. 534, 552 (C.D. Cal. 2012),
(explaining that commonality was not met where the “system defect” constituted
multiple different components, “each of which may or may not be defectively
designed, and each of which may or may not be causally linked to the alleged water
leak defect”). This stands in contrast to the cases identified by Plaintiffs in which
courts allowed “system defect” theories to go forward. In those cases, the defect was
a specific set of components with a specific set of problems common to the entire
25

Case: 1:15-cv-09882 Document #: 305 Filed: 06/01/20 Page 26 of 34 PageID #:5859

product stream. 14 See, e.g., Mazza v. Am. Honda Motor Co., Inc., 666 F.3d 581, 584
(9th Cir. 2012); In re Whirlpool Corp. Front-Loading Washer Prod. Liab. Litig., 722
F.3d 838, 847 (6th Cir. 2013); Sanchez-Knutson v. Ford Motor Co., 310 F.R.D. 529,
537 (S.D. Fla. 2015).
Plaintiffs argue that regardless of the number of design flaws, the question of
whether the dishwashers have “a propensity to cause fires or floods” is common to
the class. (Pls.’ Reply Supp. Mot. Class Cert. at 8, Dkt. 209 (sealed), 210
(public).) For this point, they rely on Butler v. Sears, Roebuck & Co., 727 F.3d 796
(7th Cir. 2013), where the Seventh Circuit affirmed class certification and found
that the question of whether the class members’ washing machines were “defective
in permitting mold to accumulate and generate noxious odors” was sufficiently
common. Id. at 798. However, there the plaintiffs did identify a specific, common
design defect—that “the low volume and temperature of the water in the frontloading machines” prevented the machines from “clean[ing] themselves adequately,”
causing to mold accumulate. Id. By examining “the design issue Plaintiffs
identified (the use of low water volume and temperature),” the fact finder could
“generate a common answer to a critical question in the litigation” through
classwide proof. Cates, 2017 WL 1862640, at *20 (distinguishing Butler, 727 F.3d at
798). Butler does not support the proposition that it is unnecessary to identify a
design defect common to the class. Cates, 2017 WL 1862640, at *21 (“A number of
cases—including post-Butler cases—confirm the Court’s reading of Butler and the
need for the identification of a specific design defect to tie a broad swath of
consumer products together in a class proceeding.”) (citing cases). It is not enough
for Plaintiffs to simply show that the Electrolux’s dishwashers sometimes cause
damage, since “even a non-defective product would still have a propensity to fail
sometimes.” Fluidmaster, 2017 WL 1196990, at *57.
Without identifying a specific component that is allegedly defective, Plaintiffs
are left with a theory that relies on Electrolux’s general failure to anticipate and
prevent the heating elements from melting, regardless of the cause. At oral
argument, Plaintiffs appeared to argue that this is enough to constitute a design
defect for purposes of their claims. (See Dkt. 282 at 10-26.) But merely defining the
defect as the “failure to prevent failure” sets the bar at much too high a level of
generality. See, e.g., Robinson, 2016 WL 1464983, at *6–7 (rejecting “inadequate
Plaintiffs also cite several other cases allegedly supporting the notion that multiple
defects can support class certification. Many of the cited cases involve individual plaintiffs
rather than classes, and thus do not address the requirement that a defect be common to all
the class members’ products. See, e.g., Nationwide Agribusiness Ins. Co. v. Munters Corp.,
No. 15-CV-1362, 2018 WL 3756452 (E.D. Wis. Aug. 8, 2018); Dejana v. Marine Tech., Inc.,
No. 4:11-CV-1690, 2013 WL 6768407 (E.D. Mo. Dec. 20, 2013); Knight v. Deere & Co., 2:08cv-01903, 2010 WL 1948311 (E.D. Cal. May 11, 2010); Mascarenas v. Cooper Tire & Rubber
Co., 643 F. Supp. 2d 1363 (S.D. Ga. 2009).

14

26

Case: 1:15-cv-09882 Document #: 305 Filed: 06/01/20 Page 27 of 34 PageID #:5860

safety mechanisms” as a common design defect). “At a sufficiently abstract level of
generalization . . . almost any set of claims can be said to display commonality.”
Cholakyan, 281 F.R.D. at 556. However, that does not mean that class certification
is appropriate in such a circumstance.
Furthermore, because the court has excluded O’Shea’s opinion, there is even
less basis to argue that a common design defect could be proven through common
evidence. Plaintiffs point to a variety of other corporate documents to show that
Electrolux has known about problems with the Zoppas heating elements for over a
decade. In particular, they point to evidence that in June 2006, Electrolux tested
thirty heating elements. Twenty-two of those elements warped, causing the lower
spray arms to touch the heaters. (Poyner Dep. I at 161:21–162:16; Engineering Test
& Eval. Test Result Summary.) Still, Electrolux decided to incorporate Zoppas
heating elements into their plastic-tub dishwashers in 2008. (Verma Decl. ¶ 9.)
Since then, Electrolux has periodically been made aware of problems with heating
elements. For instance, Plaintiffs point to two fire investigation reports from 2014
and 2015 indicating that consumer fires originated with the heating element due to
a “manufacturer’s defect.” (Poyner Dep. I, Ex. 21, Donan Report, Dkt. 175 (sealed);
id., Ex. 25, Phillips Report, Dkt. 175 (sealed).) Plaintiffs also point to the fact that
Electrolux has received calls over the years from consumers complaining about
problems with the heating elements, that Electrolux has investigated such reports,
and that corporate employees have noted such problems in internal
communications. (See, e.g., id., Ex. 22, 9/22/10 Accident Reconstruction Analysis,
Dkt. 175 (sealed); id., Ex. 23, 10/7/14 Email, Dkt. 175 (sealed); id., Ex. 24, 10/8/10
Accident Reconstruction Analysis, Dkt. 175 (sealed); Poyner Dep. I at 238:7-21,
254:18–255:5.)
As an initial matter, it is not clear from this record that there has been a
consistent problem with the Zoppas heating elements that would be common to all
the Plaintiffs’ dishwashers. Rather, as Electrolux points out, it has regularly
audited Zoppas’ manufacturing, shipping, and packaging processes to cut down on
instances of heating element failure. (See Verma Decl., Exs. D–O, Dkt. 185-4–18515 (sealed).) And in fact, even the evidence O’Shea evaluated suggests that changes
have been made to the heating elements over time. (See O’Shea Suppl. Report at 4–
5.) Still, Plaintiffs seem to be invoking this evidence in support of their “failure to
prevent failure” theory. In other words, Plaintiffs argue, even if it is not clear what
exactly is wrong with the Zoppas heating elements, Electrolux knew of the
possibility the elements might fail, yet made no changes to the design. That theory
still fails to set forth a specific problem, common to the entire class, that could have
caused the injuries suffered by the class. Vague, untestable descriptions of
supposed defects in the plastic tubs and clips do not indicate a common problem
with either of those components. When the cause of the defect could vary so widely,
possible or feasible prevention methods may be just as variable, undermining any
generalized “failure to prevent” theory.
27

Case: 1:15-cv-09882 Document #: 305 Filed: 06/01/20 Page 28 of 34 PageID #:5861

Even though Plaintiffs have proposed superficially common questions about
the dishwashers’ propensity to melt and flood, these questions are not apt to lead to
common answers where there is no common defect tying the proposed classes
together. Essentially, Plaintiffs have identified little more than that the
dishwashers’ heating elements may warp or sag, or their clips may bend for a
variety of reasons, many of which go beyond design issues to any number of issues,
such as manufacturing, shipping, packaging, or other reasons. 15 Given the many
possible causes, there are simply too many possible “failure paths” that would
require the court to make individualized determinations as to causation or likely
failure rates. Naparala v. Pella Corp., No. 2:14-CV-03465-DCN, 2016 WL 3125473,
at *7–8 (D.S.C. June 3, 2016); see also Cholakyan, 281 F.R.D. at 556 (“Cholakyan
has not adduced evidence that there is a single source of the alleged injuries
suffered by putative class members[.]”). This flaw in Plaintiffs’ theory is
compounded by the evidence that Electrolux has used different designs and models
for the dishwashers throughout the years, and the fact that the heating element has
gone through multiple iterations. See, e.g., Bridgestone / Firestone, 288 F.3d at
1019; In re Seagate Tech. LLC, 326 F.R.D. 223, 244 (N.D. Cal. 2018); Cates, 2017
WL 1862640, at *21; Fluidmaster, 2017 WL 1196990, at *52; Mednick I, 2016 WL
3213400, at *7; Robinson, 2016 WL 1464983, at *6–7; Cholakyan, 281 F.R.D. at 554.
Similarly, even if a common design defect had been shown, Plaintiffs have
failed to point to evidence that it is sufficiently likely to manifest, for purposes of
concluding that the named Plaintiffs’ claims would be typical of other members of
the class. As Electrolux points out, the only evidence of possible failure rates in the
record comes from its expert, Dr. Benjamin Wilner, who analyzed the rate of
complaints about heating elements from 2004 to 2016. (Wilner Report at 14–17.)
Dr. Wilner concluded that rate of complaints about Electrolux’s heating elements
fell below one percent. (Id.) Of course, as Plaintiffs correctly point out, the
complaint rate should not be conflated with the failure rate, a boundary Electrolux
frequently attempts to push in its briefing. See Fluidmaster, 2017 WL 1196990, at
One of these possible causes involves ways in which a consumer’s actions could cause the
dishwasher to fail, such as by incorrectly loading the dishwasher (leading to the clips and
heating element bending), hooking it up to the wrong water supply, or other issues.
Plaintiffs argue that “consumer misuse” is an affirmative defense that need not necessarily
destroy commonality or predominance. True, a consumer misuse defense need not destroy
predominance where a common design defect is shown. But here, where consumer misuse
is posed as a possible alternative cause of the problem instead of a design defect, a
determination would have to be made in every case whether the cause was consumer
misuse, a design issue, or something else. See, e.g., Brown v. Electrolux Home Prods., Inc.,
817 F.3d 1225, 1240 (11th Cir. 2016) (explaining that consumer misuse can raise an
individualized need for proof); Fluidmaster, 2017 WL 1196990, at *59 (“[I]ndividualized
inquiries into each consumer’s installation, maintenance, misuse, causation, and the
damages attributable to the failure would be required.”).
15

28

Case: 1:15-cv-09882 Document #: 305 Filed: 06/01/20 Page 29 of 34 PageID #:5862

*18–19, 21. Still, Electrolux is “free to argue that the claims rate is important
evidence of non-defectiveness.” Id. at *21. And even if the court were to bar
Dr. Wilner’s testimony and ignore Electrolux’s evidence of the complaint rate,
Plaintiffs have countered with no comparable evidence of their own.
In sum, because Plaintiffs cannot point to any evidence supporting the notion
that they have sustained injuries that are both common and attributable to
Electrolux, they cannot demonstrate commonality, typicality, or predominance.
See Cates, 2017 WL 1862640, at *16 (“In short, Plaintiffs fail to demonstrate that
the most important factual question in this case—whether the Ovens have an
inherent design defect—is capable of classwide resolution.”) (internal quotation
marks and citation omitted); Mednick I, 2016 WL 3213400, at *7 (concluding that
commonality was not met where the determination of defectiveness “cannot be
made for all members of the putative class in a single adjudication, but rather
would require individualized inquiry into each user, each type of machine and each
heart rate system at issue”); Robinson, 2016 WL 1464983, at *5 (“Plaintiffs’ failure
to identify a single part, system, or even . . . temperature, defeats commonality.”).
Thus, the court concludes that litigation as a class would not be superior to
litigating individually. See Fed. R. Civ. P. 23(b)(3). “A single litigation addressing
every complication” that may possibly exist in the dishwashers, “including changes
in design, manufacturing . . . as well as the unique problems of each plaintiff, would
present a nearly insurmountable burden on the district court.” In re Am. Med. Sys.,
Inc., 75 F.3d 1069, 1085 (6th Cir. 1996); see also Fluidmaster, 2017 WL 1196990, at
*61. Here, the proximate cause and likelihood of any melting and flooding may
have to be determined on an individual basis. See Naparala, 2016 WL 3125473, at
*12. Different experts may be needed to opine about the particular causes of or
likelihood of failure for each of the subject dishwashers, and different damages
models may apply. Plaintiffs have not tied together their claims with common
“glue” in the form of a common design defect and thus have not met their burden of
showing that class certification is appropriate. Cates, 2017 WL 1862640, at *16.
B.

Additional Predominance Issues

Defendants also argue that various elements of Plaintiffs’ claims destroy
predominance, even beyond the lack of a common design defect. Many of the issues
Defendants raise have to do with the differences among the various states’ laws.
These issues may be less problematic given that there is no longer a proposed
nationwide class and each State Class will be subject only to its own laws.
See Seagate, 326 F.R.D. at 241 (“To the extent that the subclasses would require
different jury instructions and verdict forms, such issues are manageable. . . .”).
Still, within each State Class, there are at least the following fact-specific issues
that cut against certifying certain classes.
29

Case: 1:15-cv-09882 Document #: 305 Filed: 06/01/20 Page 30 of 34 PageID #:5863

First, in Illinois, the ability of the Non-Manifestation Class to obtain
economic damages (the only type of damages sought) is dependent on vertical
privity of contract. See Jensen v. Bayer AG, 862 N.E.2d 1091, 1099 (Ill. App. Ct.
2007). Thus, as to the Illinois Non-Manifestation Class, there would be
individualized questions about each class member’s method of purchase and
relationship with Electrolux. See Fluidmaster, 2017 WL 1196990, at *45–46.
Second, in both Illinois and Indiana, plaintiffs must provide notice of any
breach of implied warranty within a reasonable time prior to filing suit, unless the
defendant previously had “actual knowledge” of its breach. See Anderson v. Gulf
Stream Coach, Inc., 662 F.3d 775, 782 (7th Cir. 2011) (Indiana law); Arcor, Inc. v.
Textron, Inc., 960 F.2d 710, 715 (7th Cir. 1992) (Illinois law). Even assuming for the
sake of argument that Electrolux’s “actual knowledge” could be litigated at one
time, whether each individual Plaintiff provided pre-suit notice would have to be
determined individually.
Third, in California, Illinois, Indiana, and Ohio, fraudulent concealment
claims require plaintiffs to show reliance. See Stewart v. Electrolux Home Prod.,
Inc., 304 F. Supp. 3d 894, 905 (E.D. Cal. 2018) (California law); Wigod v. Wells
Fargo Bank, 673 F.3d 547, 571 (7th Cir. 2012) (Illinois law); Jackson v. Blanchard,
601 N.E.2d 411, 418 (Ind. App. 1992) (Indiana law); Stanich v. Travelers Indem. Co.,
249 F.R.D. 506, 515 (N.D. Ohio 2008) (Ohio law). Plaintiffs must also show reliance
to bring claims under the IDCSA. Jones v. Bridgepoint Educ., Inc., No. 1:16-cv-338,
2017 WL 2438461, at *4 (N.D. Ind. June 5, 2017). As a result, whether each
Plaintiff relied on the alleged fraud would need to be determined individually.
Fourth, to succeed in a claim brought under the ICFA, a plaintiff must
“actually be deceived by a statement or omission that is made by the defendant. If a
consumer has neither seen nor heard any such statement, then she cannot have
relied on the statement and, consequently, cannot prove proximate cause.”
De Bouse v. Bayer AG, 235 Ill.2d 544, 554, 922 N.E.2d 309, 316 (2009). Thus,
whether each Plaintiff saw or heard such a statement would be an individualized
question. Id.
C.

Additional Class Definition Issues

Other issues with Plaintiffs’ claims and proposed class definitions also
preclude class certification—particularly given the various changes to the
definitions Plaintiffs have posed throughout the litigation. These issues include the
ascertainability of Plaintiffs’ proposed classes and the typicality of the putative

30

Case: 1:15-cv-09882 Document #: 305 Filed: 06/01/20 Page 31 of 34 PageID #:5864

class representatives’ claims compared with those of other putative class
members. 16
First, Electrolux argues that Plaintiffs’ proposed class definitions are not
ascertainable. Rule 23 requires that a class be defined, and “experience has led
courts to require that classes be defined clearly and based on objective criteria.”
Mullins v. Direct Digital, LLC, 795 F.3d 654, 660 (7th Cir. 2015).
In arguing that Plaintiffs’ classes do not meet this requirement, Electrolux
points out that it “sells about 1 million [d]ishwashers yearly, [s]o the NonManifestation classes grow by thousands each day.” (Def.’s Resp. Mot. Class Cert.
at 26.) The fact that a class may be extremely large does not make it per se
unascertainable. Here, Plaintiffs’ proposed classes are limited by a starting date of
2008, and would presumably close as of the effective date of a claims period or
judgment. Furthermore, the proposed class definitions include consumers who
acquired a specific type of dishwasher—an “Electrolux designed and/or
manufactured dishwasher that include[s] a Zoppas Industries heating element.”
(Pls.’ Mem. Supp. Mot. Class Cert. at 8–9.)
Furthermore, Electrolux argues, the Manifestation Classes include class
members who “incurred property damage from a fire or flood,” but not necessarily
caused by the dishwashers. Plaintiffs’ Manifestation Class definitions do not
include a specific requirement that any property damage be caused by the defective
dishwashers. However, Plaintiffs have proceeded as though causation is required.
Including this causation requirement in the class definition would create an
ascertainability problem, since it would require fact-finding to determine who falls
within the class.
Other changes Plaintiffs have proposed to their claims and classes may
create additional issues. As previously discussed, Plaintiffs indicated during oral
argument that certain of their negligence claims are certifiable as to the
Manifestation Classes, but only insofar as the plaintiffs in those classes suffered
“other property damage”—i.e., damage to property other than the dishwashers
themselves. In other words, Plaintiffs propose limiting the class definition for
purposes of the negligence claims to persons who have “incurred property damage to
There is also a question as to numerosity. Plaintiffs and Electrolux both seem to agree
that 10 million of the relevant dishwashers have been sold nationwide since 2008. (See
Def.’s Resp. Mot. Class Cert. at 9.) But since Plaintiffs have withdrawn their request for a
nationwide class, the relevant number would be the number of dishwashers sold in Illinois,
Indiana, California, and Ohio during that same period. Neither side offers sales numbers
specific to those four states. Still, because Electrolux does not dispute numerosity and it is
still likely that thousands of dishwashers would be implicated, the court assumes that the
numerosity requirement is met.
16

31

Case: 1:15-cv-09882 Document #: 305 Filed: 06/01/20 Page 32 of 34 PageID #:5865

property other than the dishwasher from a fire or flood.” In doing so, Plaintiffs
acknowledge that in California, Indiana, and Illinois, the economic loss rule bars
recovery for negligence resulting in damage to the dishwasher itself. See Robinson
Helicopter Co., Inc. v. Dana Corp., 102 P.3d 268, 272 (Cal. 2004) (California law);
Progressive Ins. Co. v. Gen. Motors Corp., 749 N.E.2d 484, 487–91 (Ind. 2001)
(Indiana law); Hecktman v. Pacific Indem. Co., 59 N.E.3d 868, 872 (Ill. App. Ct.
2016) (Illinois law).
Indeed, without this limitation, the current class definition would include
both plaintiffs claiming damage only to the dishwasher and plaintiffs claiming
damage to other property. The named representatives of each of the Manifestation
Classes incurred varying levels of property damage. Most claim damage to their
floors and other surrounding areas, but two (McLaughlin and Cisco) claim damage
only to their dishwashers. (See Named Plaintiffs’ Specific Facts at 3–6.) Without
knowing which of these two situations will be more common classwide, it is
impossible to say that any of the named representatives’ claims are typical with
respect to negligence.
However, adding the limitation causes problems for adequacy for certain
class representatives. If the court accepted this modification, McLaughlin and Cisco
could not represent, respectively, the California or Ohio Manifestation Classes.
This would cause a particular problem for the Ohio Manifestation Class, which
would then have no adequate class representative.
Electrolux next points to the language in Plaintiffs’ class definitions including
both consumers who have “purchased” Electrolux dishwashers and those who have
“otherwise acquired” them through other means—such as through a builder or
contractor, second-hand purchase, or gift. (See Pls.’ Mem. Supp. Mot. Class Cert. at
8–9.) Under Plaintiffs’ theory of damages for the Non-Manifestation class, all
plaintiffs have paid an unwarranted “price premium” for the dishwashers, since the
value of the dishwasher with a latent defect is less than a dishwasher with no such
defect. (See Pls.’ Reply Supp. Mot. Class Cert. at 11.) But as Defendants point out,
those who paid for a dishwasher as part of an overall home purchase, those who
paid substantially less for a dishwasher as a second-hand purchase, and those who
did not pay for a dishwasher at all may not have felt the effects of that price
premium. As other courts have observed, differences in the method of acquisition
may limit who can properly claim injury. See, e.g., Fluidmaster, 2017 WL 1196990,
at *29, 60; Clark v. Bumbo Int’l Tr., No. 15 C 2725, 2017 WL 3704825, at *3–4 (N.D.
Ill. Aug. 28, 2017); Webb v. Carter’s, Inc., 272 F.R.D. 489, 498 (C.D. Cal. 2011). As
the Seventh Circuit has explained, “a class should not be certified if it is apparent
that it contains a great many persons who have suffered no injury at the hands of
the defendant.” Messner, 669 F.3d at 825 (citation omitted).

32

Case: 1:15-cv-09882 Document #: 305 Filed: 06/01/20 Page 33 of 34 PageID #:5866

At oral argument, Plaintiffs proposed yet another change to the class
definitions to avoid this issue—simply limit the classes to those who “purchased”
the dishwashers. (See Dkt. 282 at 6.) The court has the discretion to refine the
class definitions to make class litigation workable. See Messner, 669 F.3d at 825.
But the court does not find it appropriate to do so here. First, as already explained,
Plaintiffs have now proposed an impractical number of revisions to their class
definitions and claims, making it nearly impossible to follow their bases for class
certification. But more importantly, even if the court were to refine the class in this
manner, it still would not solve the other problems with commonality,
ascertainability, typicality, and predominance already identified.
Finally, it is also worth noting that Plaintiffs’ proposed class definitions do
not actually require Plaintiffs to have purchased plastic-tub dishwashers, although
Plaintiffs have proceeded as if such a limitation is present. (See Pls.’ Mem. Supp.
Mot. Class Cert. at 8–9 (defining the classes as consumers who acquired “an
Electrolux designed and/or manufactured dishwasher that included a Zoppas
Industries heating element”).) As Plaintiffs have made abundantly clear, Electrolux
manufactures a number of dishwashers with metal tubs. (See id. at 2.) If the
proposed class definitions were not modified to limit the claims to those involving
plastic-tub dishwashers, the problems already identified with lack of commonality
and typicality would compound. A metal-tub dishwasher would not be prone to
melt and fail in the same way that the plastic-tub dishwashers are alleged to.
In sum, even setting aside the issue of a common design defect, Plaintiffs
have failed to consider certain issues that render their class definitions too
unwieldy, and in other instances have overcorrected by posing unworkable revisions
to their class definitions and claims. Even assuming Plaintiffs could point to
evidence supporting the existence of a common design defect, the court would have
lingering concerns about the differences among the class members with respect to
how they acquired their dishwashers, the type of property damage suffered, and
even the types of dishwashers involved. Plaintiffs’ constant attempts to alter their
class definitions and claims make it nearly impossible to ascertain their true class
membership, as “every time plaintiffs file a brief or motion, membership in the
class[ ] may change.” Jamie S., 668 F.3d at 503 (Rovner, J., concurring in part and
dissenting in part) (quoting Rahman v. Chertoff, 530 F.3d 622, 625–26 (7th Cir.
2012)). Because of this, in addition to the other problems already discussed, class
certification is unwarranted in this case. 17

The court declines to address additional arguments made by Electrolux in support of the
denial of class certification, such as Electrolux’s contention that class representatives who
had a manifested injury from the alleged defect would be inadequate class representatives
as to the Non-Manifestation Classes.
17

33

Case: 1:15-cv-09882 Document #: 305 Filed: 06/01/20 Page 34 of 34 PageID #:5867

Conclusion
For these reasons, the court grants Electrolux’s motion to exclude Plaintiffs’
expert Robert O’Shea [191]. The court denies Plaintiffs’ motion to certify classes
[172]. The court strikes the remaining Daubert motions [196] [197] [199] [201] as
moot.

Date: June 1, 2020

/s/ Martha M. Pacold

34