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Eighth Circuit Favors Consumers in Zurn Opinion

In an huge win for consumers, the United States Court of Appeals for the Eighth recently affirmed the district court's order granting class certification in In re Zurn Pex Plumbing Liability Litigation, No. 10-2267 (8 th Cir.). Writing for the majority, Circuit Judges Wollman and Murphy ruled on three critical aspects of the lower court's opinion.  

The first issue involved the lower court's decision not to conduct a full Daubert analysis, i.e., one which would closely examine the ultimate merits of the experts' opinions.  The Court held that the district court did not err by "conducting a focused Daubert analysis which scrutinized the reliability of the expert testimony in light of the criteria for class certification and the current state of the evidence."  Importantly, the Court that a more conclusive Daubert analysis was not possible since discovery had ben bifurcated - at the defendant's request.

The second issue involved the standing of class members who had not yet suffered a leaky fitting to bring warranty claims. The Court held that the warranty class had standing to bring its claims since the class claim was that all of the plaintiffs' brass fittings exhibited a defect (stress corrosion cracking), the claims of even those persons who had yet to suffer a leak were cognizable, and they could seek damages if they prove a universal inherent defect. 

Finally, the Court found that the lower court did not abuse its discretion in finding that class issues predominated over individual issues, holding   "the evidence of a universal defect raises a critical question common to all members of the classes certified by the district court."

Unfortunately, this well-reasoned opinion comes over the strong dissent of Judge Gruender. Judge Gruender first disagrees with the majority's position on standing.  As Gruender would have it, the plaintiffs without leaks lack standing since they have not suffered actual injury. "[S]imply owning a product with an alleged defect does not give rise to a warranty claim until that defect causes the product to perform unsatisfactorily."

Further, with respect to negligence, Gruender argues that individual issues predominate since each plaintiff will need to prove that his property damage was caused by an inherent defect, and not corrosive water conditions, improper installation or other factors.

Lastly, Judge Gruender expressed his belief that district court must conduct a full Daubert analysis before certifying a class.

Giving the importance of the issues at stake, and the thorough dissent, Zurn is certain to petition for review en banc as well as appeal to the U.S. Supreme Court.  Fortunately, the odds of success for either of these strategies are extremely low.   

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