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Cerrato v. Nutribullet, LLC

United States District Court, M.D. Florida, Tampa Division

April 27, 2017

PHYLLIS B. CERRATO and GERMAN CERRATO, Plaintiffs,
v.
NUTRIBULLET, LLC and CAPITAL BRANDS, LLC, Defendants.

          ORDER

          SUSAN C. BUCKLEW, United States District Judge

         This cause comes before the Court on Defendants' Motion to Dismiss. (Doc. No. 26). Plaintiffs oppose the motion.[1] (Doc. No. 30). As explained below, the motion is denied.

         I. Background

         On November 1, 2016, Plaintiffs filed this product liability lawsuit against Defendants for injuries sustained by Plaintiffs when Plaintiff Phyllis Cerrato used a blender that was designed and manufactured by Defendants. The blender exploded and resulted in hot liquids severely burning Phyllis Cerrato's face and upper body, as well as causing property damage to Plaintiffs' kitchen.

         II. Motion to Dismiss

         On March 14, 2017, Defendants deposed Phyllis Cerrato and her husband, Plaintiff German Cerrato. Thereafter, Defendants filed the instant motion to dismiss, arguing that Plaintiffs have fabricated evidence to support their claims. Specifically, Defendants point to Plaintiffs' deposition testimony (Doc. No. 26-4; Doc. No. 26-5), which conflicts with a recorded phone call (Doc. No. 26-3) that Phyllis Cerrato made to Defendants on December 22, 2014-two days after the incident with the blender. Additionally, Defendants contend that Plaintiffs' evidence regarding the valuation of the damage to their kitchen is conflicting.

         Defendants contend that all of this evidence shows that Plaintiffs are committing fraud on the Court and should be sanctioned with dismissal of this case with prejudice. Plaintiffs respond that their testimony is not conflicting, but even if it did conflict, such is not fraud on the Court. As explained below, the Court finds that the extreme sanction of dismissal with prejudice is not warranted.

         A. Evidence at Issue

         During her call with Defendants on December 22, 2014, Phyllis Cerrato stated that prior to using the blender, she read some of the instructions for the blender and believed that the blender would stop running on its own after one minute. She stated that after putting the ingredients in the blender, she left the blender running unattended (believing it would shut off on its own after one minute), and when she returned to the blender, it was still running. She then tried to turn the blender off (by twisting the blender from the base), but it was too hot to twist to turn it off. As a result, she unplugged the blender in order to turn it off. She estimated that the blender ran between three and six minutes before she was able to turn it off. Thereafter, she let the blender sit and cool for fifteen to twenty minutes before trying to open it. When she opened the blender, it exploded and she was burned, causing her to go to the emergency room.

         Defendants submitted to the Court the instructions that came with the blender, which state the following: (1) never allow the blender to run for more than one minute at a time; (2) the blender has an internal thermal breaker that shuts the blender off when it overheats; and (3) never leave the blender unattended while it is in use. (Doc. No. 26-2). Defendants contend that Phyllis Cerrato did not read or follow these instructions, because she left the blender unattended and let it run for longer than one minute.

         Defendants point out that Phyllis Cerrato's March 14, 2017 deposition testimony substantially differed from her December 22, 2014 statements. In her deposition, she stated the following (Doc. No. 26-4): She read through the entire instruction manual before using the blender. After she put the ingredients in the blender and turned it on, she let it run for one minute before she tried to turn it off. She was unable to get the blender to turn off because it was locked and could not be twisted off, so she called for her husband to help her to turn it off. Her husband tried to turn the blender off, and after two to three minutes, Phyllis Cerrato unplugged the blender to get it to stop. After she unplugged the blender, she let it sit for twenty minutes before trying to open it. When she opened the blender, it exploded and burned her.

         Phyllis Cerrato went to the emergency room, and Defendants submitted a medical record from her visit. (Doc. No. 26-6). Under the subjective assessment portion of the medical record, it reads:

PT STATES SHE WAS USING A NEW BLENDER AND SHE THOUGHT THAT THE PROCESSOR WOULD STOP ON ITS OWN AND AFTER 6MIN PT TOOK ITEM OFF BLENDER AND OPENED CONTENTS WHICH WERE HOT AND BURNED LT FOREARM AND LOWER CHIN/NECK

(Doc. No. 26-6). In her deposition, Phyllis Cerrato stated that she did not go into details with the nurse and doctor in the emergency room regarding ...


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