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Cerrato v. Nutribullet, LLC

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

November 6, 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 for Sanctions for Spoliation of Evidence. (Doc. No. 53). Plaintiffs oppose the motion (Doc. No. 59), and Defendants have filed a reply brief (Doc. No. 73). Defendants also request an evidentiary hearing and oral argument; however, the Court finds that a hearing is not necessary. As explained below, the motion is denied in large part.

         I. Background[1]

         Plaintiffs Phyllis and German Cerrato bought Defendants' Nutribullet Pro 900 blender on December 20, 2014. Once home with the blender, Mrs. Cerrato opened the blender and placed ingredients inside it to make a smoothie. She turned the blender on, and once the ingredients reached her desired consistency, she attempted to turn the blender off, but she contends that she was unable to do so.

         The blender does not have an "on/off switch. Instead, the blender consists of a cup that holds the ingredients to be blended, a lid that contains the blending blades, and a base that contains the motor. There are three locking tabs on the cup that are used to physically secure the cup onto the motor base. When the cup is twisted into the base, the motor turns on; when the cup is twisted off the base, the motor turns off.

         Because Mrs. Cerrato was unable to twist the cup off and stop the motor, she unplugged the blender to make it stop. She contends that she waited approximately twenty minutes for it to cool down before trying to open it. When Mrs. Cerrato tried to open the lid, the contents inside the cup exploded, severely burning her and causing property damage to her kitchen.

         As a result of the incident, Plaintiffs filed suit against Defendants, asserting three claims. In Count I, Plaintiffs assert a negligence claim based on Defendants' alleged defective design of the blender and alleged inadequate warnings of serious injury that could result from the blender overheating. In Count II, Plaintiffs assert a strict liability claim, alleging that the blender's design and inadequate warnings made it defective and unreasonably dangerous. In Count III, Plaintiffs assert a breach of express and implied warranties claim.

         Based on the evidence and briefings before the Court on Defendants' pending motion for summary judgment, Plaintiffs' design defect and inadequate warning claims can be more specifically described as the following: First, Plaintiffs contend that the blender has a design defect in that it should have a motor timer set to approximately one minute and/or a second thermal cut-off switch in order to prevent the blender from overheating. Second, they contend that the blender came with inadequate warnings because the warnings do not adequately inform the user of the temperature and pressure dangers that occur if the blender is used for more than one minute.

         II. Motion for Sanctions for Spoliation

         Defendants move for sanctions for spoliation of evidence because when their expert received the subject blender for testing and analysis, the three locking tabs that connect the cup to the base were broken off. The relevant chain of custody for the blender begins with Plaintiffs' expert having custody of the blender and the locking tabs being intact; this is undisputed. (Doc. No. 53, p. 6; Doc. No. 59, p. 3; Doc. No. 73, p. 6). After analyzing the blender, Plaintiffs' expert sent the blender (packed in its original box and placed inside the shipping box) back to Plaintiffs' counsel via FedEx. According to Plaintiffs, the box was not opened at Plaintiffs' counsel's office (Doc. No. 59-2), and the parties agree that a runner from Plaintiffs' office hand-delivered the boxed blender to Defendants' counsel's office (Doc. No. 53, p. 9; Doc. No. 59-7). According to Defendants, Defendants' counsel did not open the box but placed the box inside a larger box for shipment to their expert. (Doc. No. 53, p. 9). Someone from Defendants' counsel's office took the boxed blender to FedEx and shipped it to Defendants' expert. (Doc. No. 53-9). According to Defendants, when their expert opened the box, the three locking tabs were broken off the cup and could not be found. (Doc. No. 53-10).

         Defendants submitted video evidence of their expert un-boxing the blender upon receipt. (Doc. No. 71). Defendants' expert states in an affidavit that the broken locking tabs were not found in the motor base or anywhere in the box or packaging. (Doc. No. 73-5, ¶ 9). Additionally, Defendants' expert analyzed the area of the broken tabs and concluded that the fracture sites reveal fracture patterns in different directions that could not have happened at the same time during use of the blender. (Doc. No. 53-12). He further opined that the locking tabs appear to have been intentionally broken off at separate times based on the different fracture directions. (Doc. No. 53-12). Based on this evidence, as well as affidavits of Defendants' counsel and both defense experts that handled the box stating that they did not damage the blender (Doc. No. 73, attachments 1-6), Defendants argue that Plaintiffs, Plaintiffs' counsel, or their expert broke the locking tabs off the cup and should be sanctioned.

         Plaintiffs respond with affidavits from all of their counsel's law firm's employees stating that they did not tamper with or damage the blender. Plaintiffs' expert stated at his deposition that he returned the blender in the same condition as when he received it.

         In the instant motion, Defendants seek sanctions for spoliation of evidence-the breaking off of the three locking tabs from the cup. Specifically, Defendants seek the following sanctions: (1) dismissal of the case with prejudice; (2) an adverse inference jury instruction that had the blender cup been properly preserved, it would have shown that Mrs. Cerrato could have untwisted the cup from the base and turned the blender off without difficulty; ...


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