ST. LOUIS (Legal Newsline) - One St. Louis man appears to have gone from product-to-product trying to find a windshield wiper fluid he can trust when it’s warmer than negative-20 degrees outside – but, unsatisfied, he recently filed eight class action lawsuits in one day.
On July 24, Paul Weishaar and his attorney, asbestos lawyer Benjamin Schmickle, filed a round of lawsuits alleging the makers of various windshield wiper fluids lied on their packaging. They freeze before the advertised temperature of negative-20, the lawsuits say.
“(W)hile a reasonable consumer might try a second or third brand of windshield wiper fluid, it is not plausible that a reasonable consumer would continue to purchase a product he viewed as defective on seven or eight different occasions,” attorneys for O’Reilly Automotive Stores wrote on Sept. 15.
“The allegations directed at O’Reilly are not plausible in light of the other identical lawsuits…”
O’Reilly submitted those comments while asking a federal judge to dismiss Weishaar’s lawsuit on several grounds. Three days later, Weishaar notified the court that he was voluntarily dismissing his lawsuit.
He did so “without prejudice,” indicating a possible intent to refile the claims later.
The O’Reilly case was the first to be removed by a defendant to federal court. Five lawsuits are still pending in St. Louis City Circuit Court, a jurisdiction that last year was ranked as the country’s most unfair to businesses by a national civil justice reform group. Massive verdicts there in talcum powder litigation have drawn national headlines.
His other lawsuits named the following as defendants: Warren Distribution, South/Win Ltd., Prestone Products, ITW Global Brands, Elliott Auto Supply, Circle K Stores and Camco Manufacturing.
Weishaar filed a notice of voluntary dismissal that closed the case against Prestone on Aug. 23. Elliott removed its case to the same federal court on Sept. 22.
Similarly, Weishaar voluntarily dismissed the Elliott case without prejudice days after it was sent to federal court.
His complaint against O’Reilly says he received a lesser product than advertised, was forced to purchase other wiper fluids and had to make repairs to his wiper fluid systems to “remedy the issues faced with freezing windshield wiper fluid.”
O’Reilly resisted having the case heard by the St. Louis Circuit Court by removing the case to federal court on Sept. 8. Weishaar’s proposed class would have covered individuals who purchased O’Reilly’s wiper fluid in Missouri and alleged a violation of the state’s Merchandising Practices Act.
O’Reilly used the Class Action Fairness Act to get the case out of the St. Louis court. It argued that the proposed class exceeded more than 100 members and that the threshold that allows removal if $5 million is in controversy was met (the company has sold more than $6 million in wiper fluid since 2010).
It also said not every person who purchased the wiper fluid in Missouri was a Missouri citizen, creating diversity of citizenship. Elliott’s removal notice made many of the same arguments but has not yet moved for dismissal.
“Weishaar does not detail whether O’Reilly’s wiper fluid froze or whether it became inoperable (whatever that may mean),” attorneys wrote in O’Reilly’s dismissal motion.
“He does not allege the date on which the wiper fluid froze (or became inoperable), the outside temperature when this happened, or the age of the windshield wiper fluid when it happened.”
From Legal Newsline: Reach John O’Brien at email@example.com.