Cox v. Zurn Pex, Inc. (In re Zurn Pex Plumbing Prods. Liab. Litig.)

Opinion

 [*608]  MURPHY, Circuit Judge.

Minnesota homeowners brought this action¹ against Zurn Pex, Inc. and Zurn Industries, Inc (Zurn) alleging that brass fittings used in the company's cross linked polyethylene (PEX) plumbing systems are inherently defective. In pretrial motions the homeowners sought class certification for their consumer protection, warranty, and negligence claims, and Zurn moved to strike the testimony of two of the homeowners' experts. After denying Zurn's motion to strike the expert testimony, the district court² granted the homeowner requests for class certification for their warranty and negligence claims, but denied it for their consumer protection claims. Zurn appeals from the district court's certification order. We affirm.

Zurn manufactures and markets a home plumbing system  [**4] that uses PEX tubing, an alternative to traditional copper water pipes. PEX tubing systems are marketed as easier to install, cheaper, and longer lasting than copper plumbing systems. The Zurn PEX systems have been installed in homes throughout the United States. Zurn has sold its PEX systems with a 25 year limited warranty.

In the plumbing systems at issue in this case, PEX tubes are joined together using  [*609]  a brass fitting and crimp. A tube is placed around a fitting, the crimp is tightened around the outside of the tube, and the resulting pressure creates a seal between the tube and the fitting. The homeowners allege that the brass fittings used in these systems are "doomed to leak within warranty" because of their susceptibility to stress corrosion cracking (SCC) which results from a combination of pressure and corrosion. The homeowners argue that SCC inevitably begins to affect Zurn's brass fittings upon their installation and exposure to water. The SCC increases over time and the fitting eventually begins to leak, causing costly water damage to homes. Zurn argues that SCC is not an inherent defect and that it is instead caused by a variety of factors which include improper installation  [**5] and overly corrosive water. Some of the homeowner plumbing systems have leaked, but others have not.

The parties disagreed about pretrial discovery. The homeowners sought a single phase discovery plan, but Zurn suggested bifurcated discovery. The district court adopted Zurn's approach and ordered that the first phase of discovery address the limited question of class certification. At the close of the first phase of discovery, the homeowners moved for class certification. Zurn opposed it and moved to strike testimony from two of the homeowners' experts, Dr. Roger W. Staehle and Dr. Wallace R. Blischke.

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