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Wills v. Home Depot U.S.A., Inc.

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

September 16, 2019

ROBERT WILLS, Plaintiff,



         Before the Court is Defendants Home Depot U.S.A, Inc. ("Home Depot") and Imperial Industrial Supply Co/s ("Imperial") Motion for Dismissal or, Alternatively, for Other Sanctions, for Spoliation of Evidence. (Doc. 38 ("Motion").) On referral, U.S. Magistrate Judge Gregory J. Kelly recommends denying the Motion. (Doc. 50 ("R&R").) Defendants objected to the R&R (Doc. 57 ("Objections")), and Plaintiff responded (Doc. 59). On de novo review, the Objections are due to be overruled in part, the R&R adopted in part, and the Motion denied.

         I. Background

         This products liability action stems from a generator fire involving Plaintiffs DuroMax XP 10000 E generator-manufactured by Imperial and distributed by Home Depot-which caused serious and permanent injuries to Plaintiff. (See Doc. 24.) According to Plaintiff, he used the generator to provide backup power for various devices in his home after he lost power due to Hurricane Irma. (Doc. 40-1, p. 90:15-24.[1]) On September 15, 2017 around lunchtime, Plaintiff was watching television on his couch when he heard a "weird noise" and noticed his lights dimming. (Id. at 8:19-24, 88:15-22, 90:11-14.) He went to the garage where the generator was located to see what was happening, and he observed the muffler on the generator broken and "flapping underneath the fuel tank." (Id. at 88:22-89:1.) On seeing this, Plaintiff shut off the generator's breaker, at which point the gas cap on the generator "blew off" and Plaintiff was "showered" in gasoline. (Id. at 89:1-4.) Plaintiff then attempted to shut down the generator; he "turned off the key switch . . . saw an orange spark, and . . . went up in flames." (Id. at 89:4-7.) From the fire, Plaintiff suffered severe burns on his back, arm, hand, and foot, and he spent over three weeks in the hospital undergoing multiple surgeries to address the burns. (Id. at 117:1-123:8; Doc. 38, p. 46.)

         The Lakeland Fire Department arrived at Plaintiffs residence shortly after the incident. (See Doc. 38, pp. 37-43 ("Incident Report").) The Incident Report reveals that firefighters unplugged the generator and moved it outside the garage. (Id. at 41, 42.) While they were moving it, fuel was spilling out of the generator, so they put the fuel cap on the fuel tank. (Id.; see also Doc. 44-1, p. 9; Doc. 59-3, p. 57:3-13.) The Incident Report doesn't state where the fuel cap was located before the firefighters placed it on the generator. (Doc. 38, pp. 37-43; Doc. 40-2, p. 5; Doc. 59-3, p. 57:16-18.) Further, the Incident Report notes a "melted gasoline container made of plastic was... on the front lawn" and "an access cover for the generator" was inside the garage. (Doc. 38, pp. 41, 42; Doc. 40-2, p. 5.) According to the Incident Report, "[i]t was determined the fire was accidentally caused by the ignition of gasoline vapors while the occupant was working on the generator while smoking a cigarette." (Doc. 38, pp. 42-43.) The Lakeland Fire Department also took photographs of the scene and the generator-the gas cap is in place and the front panel is off.[2] (See, e.g., 40-2, p. 21; Doc. 40-4.)

         During Plaintiffs hospitalization, the generator was stored in his garage. (Doc. 40-1, p. 81:16-21.) After he was released, his lawyer picked up the generator. (Id. at 81:22-82:7.) According to Plaintiff, he never touched the generator after the accident; nor did any of his family members who had access to it other than his son-in-law, who brought the generator back into the garage after the incident. (Id. at 82:8-83:10.) Further, Plaintiff did not know where his counsel took the generator and did not have access to it after that point. (Id. at 83:16-24.) According to his lawyer, when he picked up the generator, "the generator's gas cap was not present and the generator's front panel was attached to the generator." (Doc. 40-3, ¶ 5.)

         Two months later, on November 15, 2017, Defendants' counsel requested the generator be preserved and an inspection scheduled. (Doc. 38, pp. 48-49.) Plaintiffs counsel confirmed the generator was preserved (id. at 48), and the inspection took place on April 5, 2018 (see Doc. 40-2, p. 4). During the inspection, the gas cap was not on the generator or otherwise available and the front panel was attached to the generator's frame. (Doc. 40-2, pp. 4, 11-20; Doc. 44-1, pp. 5, 16-21; see also Doc. 40-4.) On inspection, the generator had smoke and fire damage, including a small liquid fuel pattern at the top of the fuel tank and under the top panels. (See Doc. 40-2, p. 4.) Beyond that," [t]he threads of the fuel tank cap opening [we]re sooted and there [wa]s indication that fire burned near the opening for a short period of time." (Id.)

         Plaintiff sued in state court on June 13, 2018, and he amended his complaint to name Home Depot, Imperial, and a Home Depot store manager. (See Docs. 1, 2, 16, 16-1.) Defendants removed the case here, and the complaint was amended to remove the store manager. (Docs. 1, 16; Doc. 24 ("Second Amended Complaint").) According to the Second Amended Complaint, the generator suffered these defects:

a. The Generator and its component parts were designed in such a way that rendered the Generator unreasonably prone to exploding and catching fire during its intended or foreseeable use.
b. The Generator and its component parts were manufactured using inferior and substandard materials and processes, which caused the Generator to explode and catch fire during its intended or foreseeable use.
c. The Generator did not come with adequate warnings and instructions advising consumers and users about the proper use of the Generator, about the Generator's defective condition(s), and about how to avoid being injured by the Generator's defects.
d. Defendants failed to adequately test, inspect, and ensure the quality of the Generator and its component parts prior to placing the Generator into the stream of commerce.

         (Doc. 24, ¶ 33.) From this, Plaintiff raised claims of: (1) strict liability; (2) negligence; (3) breach of implied warranty of merchantability; and (4) breach of implied warranty of fitness for a particular purpose. (Id. ¶¶ 53-115.)

         During discovery, Plaintiff produced photographs of the scene taken by the Lakeland Fire Department on the date of the incident. (See Doc. 40-4.) When confronted with the discrepancies between the photographs and the condition of the generator at the inspection, Plaintiff originally testified that the generator was in the same condition when his attorneys picked it up as in the photographs taken on the day of the incident but later could not recall because "it was so long ago." (Doc. 40-1, pp. 87:16-88:1.) Plaintiff also could not explain how the front panel was reinstalled on the generator or recall whether it was installed when his counsel picked up the generator. (Id. at 85:9-17, 85:22-86:4.) However, he said the panel was on the generator at the time of the incident and that he performed no maintenance on the generator while it was in his home, including removing any parts. (Id. at 86:1-12, 105:7-9.) Plaintiff also said the fuel cap ...

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