United States District Court, M.D. Florida, Tampa Division
PHYLLIS B. CERRATO and GERMAN CERRATO, Plaintiffs,
NUTRIBULLET, LLC and CAPITAL BRANDS, LLC, Defendants.
C. BUCKLEW UNITED STATES DISTRICT JUDGE.
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.
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.
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
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
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.
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.
Motion for Sanctions for Spoliation
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).
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.
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.
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; ...