United States District Court, M.D. Florida, Orlando Division
DALTON J.R., UNITED STATES DISTRICT JUDGE
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.
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.) 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.)
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. (See, e.g., 40-2, p. 21; Doc.
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.)
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."
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
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
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.
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.
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