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In re pella Corporation Architect and Designer Series Windows Marketing, Sales Practices and Products Libaility Litigation.

United States District Court, D. South Carolina, Charleston Division

July 23, 2017




         This matter is before the court on defendant Pella Corporation's (“Pella”) motion to deny class certification in all remaining cases. For the reasons set forth below, the court denies Pella's motion.

         I. BACKGROUND

         The plaintiffs in this consolidated multi-district litigation are owners of certain Pella Architect Series and Designer Series Windows manufactured between 1997 and 2007 (the “Windows”). Plaintiffs allege that the Windows suffer from a common design defect and that this defect is exacerbated by the use of inadequate, or inadequately applied, wood treatment and preservative. Plaintiffs have filed a number of class action complaints in separate jurisdictions based on these allegations, which have been referred to this court for coordinated or consolidated pretrial proceedings. ECF No. 1, MDL Panel Consolidation Order.

         Case Management Order No. 5 (“CMO-5”) outlines the procedure by which class certification issues are being addressed in this MDL. ECF No. 21, CMO-5 ¶¶ 7-16. CMO-5 first required the parties to select three cases for briefing on class certification. Id. ¶ 7. Plaintiffs and Pella were each permitted to select one case, while the third case was selected “at random” from the remaining cases. Id. CMO-5 provides that “[a]fter the [c]ourt's decision of class certification for the 3 cases, the [c]ourt and the [p]arties will confer and discuss the impact of the [c]ourt's ruling(s) on all remaining class action complaints, ” and states that the court may ask for briefing on this issue. Id. ¶ 16.

         In November of 2015, plaintiffs moved for class certification in three cases. One of these cases was dismissed before the court could rule on class certification, leaving only Romig v. Pella Corp., Case No. 2:14-cv-0433-DCN (“Romig”) and Naparala v. Pella Corp., Case No. 2:14-cv-3465-DCN (“Naparala”). In both cases, plaintiffs' claims were winnowed down to a single breach of express warranty claim. See, e.g., Romig Class Cert. Order 2. Plaintiffs correspondingly narrowed their class definition to “current or former owners of structures [containing the subject Windows] who made a claim under Pella's Limited Warranty.” See, e.g., Romig Pl.'s Reply 3. Plaintiffs argued that the Windows suffer from a defective “water management system” comprised of three distinct “failure paths” that permit water intrusion, and that the class should be certified for the purposes of resolving this common defect issue. Romig Class Cert. Order 6, 12.

         On June 3, 2016, the court issued orders denying class certification in both Romig and Naparala. These orders relied on substantially similar reasoning, holding that (1) when plaintiffs' breach of warranty claims were considered in their entirety, “individual issues predominate[d] over the common defect issue” under Federal Rule of Civil Procedure 23(b)(3), and (2) even if the class could escape the predominance inquiry by seeking certification on just the defect issue, certification was still inappropriate under the superiority requirement of Rule 23(b)(3). Id. at 20-35. The court highlighted the individualized inquiries that would be required to assess causation of each class member's damages and to resolve Pella's affirmative defenses-particularly with respect to the statute of limitations. Id. at 20-21. The court also noted that the nature of plaintiffs' breach of warranty claims made these causation issues particularly problematic because, at least in certain cases, plaintiffs would be required to prove that their initial warranty claim was caused by the defect in addition to proving causation of damages.[1]

         Pella filed the instant motion on July 15, 2016, arguing that the principles laid down in the court's recent class certification orders should be applied to all remaining class actions in this MDL. ECF No. 156. Plaintiffs filed a response to this motion on August 12, 2016, ECF No. 158, and Pella replied on August 26, 2016. ECF No. 159. A hearing was held on September 8, 2016. The matter is now ripe for the court's review.


         A.Availability of Pella's Requested Relief

         Pella seeks an order denying class certification in all remaining cases involved in this MDL. This request does not arise under any Federal Rule of Civil Procedure or other established body of law. Indeed, neither party has been able to find a case addressing the precise issue presented here. The court is therefore faced with an initial question of whether the requested relief is even available, and if it is, what standards should guide the courts' decision to grant or withhold it.

         Plaintiffs argue that such relief would unconstitutionally deprive them of their right to procedural due process.[2] Pls.' Resp. 4-7. Pella argues that its request is simply an application of the principles of stare decisis, rather than issue preclusion or res judicata which might raise due process concerns. Def.'s Mot. 13-14. But even if plaintiffs' due process concerns can be set aside, the court is not convinced that the principle of stare decisis provides a sufficiently strong foundation for preemptively denying class certification in this MDL. Pella cites a law review article for the proposition that

[c]onstant relitigation of essentially the same legal issues, at the successive behests of a multitude of litigants, should not be permitted in section 1407 transferee courts. To allow such relitigation would undermine the purposes of expediting litigation through coordinated pretrial under a single judge. . . . Stare decisis, rather than law of the case, should be looked to when newcomers to the section 1407 transferee court seek to be heard on issues already considered in other cases in the pretrial consolidation group.

Id. (quoting Joan Steinman, Law of the Case: A Judicial Puzzle in Consolidated andTransferred Cases and in Multidistrict Litigation, 135 U. Pa. L. Rev. 595, 669, 699 (1987)). But the concept of stare decisis presupposes a determination that an issue has been previously decided in prior litigation. STARE DECISIS, Black's Law Dictionary(10th ed. 2014) (“The doctrine of precedent, under which a court must follow earlier judicial decisions when the same points arise again in litigation.”). Even when this occurs, “the rule of stare decisis is not an ‘inexorable command, '” but rather a policy that can be set aside in certain-admittedly rare-circumstances. Planned Parenthood of Se. Pennsylvania v. Casey, 505 U.S. 833, 854 (1992) (quoting Burnet v. Coronado Oil & GasCo., 285 U.S. 393, 405-411 (1932) (Brandeis, J., dissenting)). One such circumstance is when “facts have so changed, or come to be seen so differently, as to have robbed the old rule of significant application or justification.” Id. at 855. Because stare ...

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