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Cerrato v. Nutribullet, LLC

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

December 13, 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 in Limine. (Doc. No. 81). Plaintiffs oppose the motion. (Doc. No. 84). The Court addressed this motion at the pretrial conference on December 6, 2017. The motion is granted to the extent explained below.

         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 locking tabs push the activator buttons down, which turns the motor on. When the cup is twisted off the base, the activator buttons release, and 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.

         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 in Limine

         Defendants move to preclude four types of evidence and argument: (1) Mrs. Cerrato's military service and accolades; (2) Defendants' subsequent remedial measures to the blender's warnings; (3) other accident reports and consumer complaints; and (4) provoking the jury to do internet searches concerning NutriBullet. Accordingly, the Court will address each category at issue.

         A. Military Service and Accolades

         First, Defendants move to preclude evidence and argument regarding Mrs. Cerrato's military service and accolades. While Defendants concede that Mrs. Cerrato should be allowed to state that she has been employed by the military when testifying regarding her personal background, Defendants argue that Plaintiffs may attempt to use evidence and argument regarding her military service and accolades to improperly bolster her credibility and character given her inconsistent statements regarding exactly how the incident occurred.

         Plaintiffs respond that Mrs. Cerrato's past and present employment in the army is relevant to her claim for damages. Plaintiffs initially argued that since she is claiming damages for lost wages and impaired earning capacity, “[h]er past and current employment with the military, her pay, awards, [and] promotions” are relevant. (Doc. No. 84).

         The Court agrees that Mrs. Cerrato's employment in the military immediately prior to the incident and continuing through trial would be relevant to the extent that she was seeking damages for lost wages and impaired earning capacity. However, at the pretrial conference, Plaintiffs informed the Court that Mrs. Cerrato was no longer seeking damages for lost wages and impaired earning capacity. Yet she contends that her military employment is still relevant to her claim for non-economic emotional distress damages.

         Upon consideration, the Court finds that Mrs. Cerrato may provide background information regarding her employment with the military, and she may also provide evidence regarding how her injuries from the blender have affected her military employment. However, the Court will not let her military service become a focus of her testimony or be used to bolster her credibility. The Court does not see the relevance of any awards or accolades that Mrs. Cerrato may have received, and she will not be permitted to testify as to those matters. As such, the Court grants Defendants' motion on this issue to the extent explained above.

         B. Subsequent Remedial Measures

         Second, Defendants move to preclude evidence and argument regarding Defendants' subsequent changes to the blender's warnings, arguing that such is precluded under Federal Rule of Evidence 407. Rule 407 provides the following:

When measures are taken that would have made an earlier injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove:
• negligence;
• culpable conduct;
• a defect in a product or its ...

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