Cerrato et al v. Nutribullet, LLC et al

Filing 79

ORDER granting in part and denying in part 52 Motion to Strike the Testimony of Plaintiffs' Expert. Signed by Judge Susan C Bucklew on 11/7/2017. (JD)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
PHYLLIS B. CERRATO and
GERMAN CERRATO,
Plaintiffs,
v.

Case No. 8:16-cv-3077-T-24 JSS

NUTRIBULLET, LLC and
CAPITAL BRANDS, LLC,
Defendants.
_________________________/
ORDER
This cause comes before the Court on Defendants’ Motion to Strike the Testimony of
Plaintiffs’ Expert and Motion in Limine to Preclude His Testimony. (Doc. No. 52). Plaintiffs
oppose the motion. (Doc. No. 61). As explained below, the motion is denied in large part.
I. Background1
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. The ingredients she used were tap water, ice cubes, a
cup of refrigerated beet leaves, half of a refrigerated avocado, a handful of refrigerated
blueberries, one banana, and one half of an apple. (Doc. No. 26-4, depo. p. 50–53). 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

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The background regarding Mrs. Cerrato’s use of the blender is presented in the light
most favorable to Plaintiffs solely to provide context for this motion.

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.
Plaintiffs’ expert, Dr. Glen Stevick, has opined that the subject blender has the following
defects: (1) there is no pressure relief device built into the blender cup; (2) there are no indicators
for pressure buildup; (3) there is no obvious way to judge the danger of, or amount of, pressure
and heat buildup without handling the cup directly, thereby exposing the user to the release of
hot contents; (4) the temperature limit of the HTTS (a device inside the blender that turns the
blender off when it detects high temperature conditions) is far too high to protect the user, as it is
well above the water boiling temperature; (5) the HTTS does not limit the temperature of the
blender or protect the user from hot and pressurized contents; (6) the location of the HTTS

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prevents it from protecting the user, because it is located directly above the exhaust fan; (7) there
are no timers in the electrical control system, and since the amount of energy added to the
contents blended is directly proportional to the time the motor is running, a motor shut-off timer
is crucial in safeguarding the user; (8) without a motor timer and/or a second thermal cut-off
switch, the design is defective; and (9) the warnings provided by Defendants do not adequately
inform the user of the temperature and pressure dangers that can cause bodily injury. (Doc. No.
51-1).
II. Motion to Strike Based on Daubert
Defendants move to Strike Dr. Stevick’s expert testimony based on Federal Rule of
Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). Rule
702 provides the following:
A witness who is qualified as an expert by knowledge, skill,
experience, training, or education may testify in the form of an
opinion or otherwise if:
(a) the expert's scientific, technical, or other specialized
knowledge will help the trier of fact to understand the
evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and
methods; and
(d) the expert has reliably applied the principles and methods
to the facts of the case.
F.R.E. 702. Furthermore, this Court must act as a gatekeeper to ensure that Rule 702 is complied
with. As explained the Eleventh Circuit:
[Trial courts must act as gatekeepers and] engage in a “rigorous
three-part inquiry” assessing whether: “(1) the expert is qualified to
testify competently regarding the matters he intends to address; (2)
the methodology by which the expert reaches his conclusions is
sufficiently reliable as determined by the sort of inquiry mandated in
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Daubert; and (3) the testimony assists the trier of fact, through the
application of scientific, technical, or specialized expertise, to
understand the evidence or to determine a fact in issue.” The
proponent of the expert testimony bears the burden of showing, by a
preponderance of the evidence, that the testimony satisfies each
prong.
Hendrix ex rel. G.P. v. Evenflo Co., Inc., 609 F.3d 1183, 1194 (11th Cir. 2010)(internal citations
omitted).
Defendants do not argue that Dr. Stevick is not qualified. He is a mechanical engineer
specializing in failure analysis and the design of electro-mechanical equipment and systems. He
has a Master’s degree and a Ph.D. in Mechanical Engineering, and he has more than thirty-five
years of experience as an engineer.
Instead, Defendants take issue with his methodology, the reliability of his opinions, and
the helpfulness of his opinions. Specifically, Defendants make the following five arguments: (1)
his opinion is not based on Plaintiffs’ time estimates for how long the blender ran; (2) his
opinion that Plaintiffs were distracted in order to explain their time estimates is not supported by
the facts; (3) his opinions are based on testing the blender using water, as opposed to using the
colder ingredients of fruit and ice that Mrs. Cerrato said that she used, and did not account for
the twenty minute cool-down period that Mrs. Cerrato described; (4) his opinion does not
explain away alternate theories, including the strange noise Mr. Cerrato had said that he heard;
and (5) based on the above, his opinion will confuse the jury and unfairly prejudice Defendants.
Accordingly, the Court will address each argument.
First, Defendants argue that Dr. Stevick’s opinion is not based on Plaintiffs’ time
estimates for how long the blender ran. Specifically, Defendants point out that Dr. Stevick has
stated that the explosion that occurred could not have been caused by the blender running for
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only six minutes. (Doc. No. 51-2, depo. p. 72–74, 76–79). He opines that the blender had to
have been running for ten to twenty minutes before Mrs. Cerrato unplugged it in order for the
contents inside to get hot enough to cause Mrs. Cerrato’s burns. (Doc. No. 51-2, depo. p. 72, 77,
79). Because Dr. Stevick’s opinion is based on facts entirely different from Plaintiffs’ version of
the facts (i.e., how long the blender ran), Defendants argue that his opinion is not based on
sufficient facts or data and must be stricken. The Court disagrees.
Dr. Stevick’s opinion is based on sufficient facts, as he ran tests to determine how long
the blender would have to run to reach the temperature necessary to overheat and cause Mrs.
Cerrato’s injuries. The fact that his opinion regarding how long the blender would have had to
run conflicts with Plaintiffs’ estimates can be brought to the jury’s attention through crossexamination by Defendants. That fact does not render Dr. Stevick’s opinion inadmissible.
Second, Defendants argue that Dr. Stevick’s opinion that Plaintiffs were distracted in
order to explain their time estimates is not supported by the facts and is instead pure speculation.
Specifically, Defendants argue that Plaintiffs testified that Mrs. Cerrato was within arm’s reach
of the blender during the entire time it ran, so there is no basis for Dr. Stevick’s opinion that the
reason why Plaintiffs’ time estimates differ dramatically from those necessary to support his
opinion is because they were distracted.
The Court agrees with Defendants that Dr. Stevick’s opinion that Plaintiffs were
distracted should be stricken. Additionally, the Court notes that whether or not Plaintiffs were
distracted is a conclusion that the jury can form without the aid of expert testimony.
Accordingly, the Court will not allow the expert to opine that the reason why Plaintiffs’ time

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estimates differ dramatically from his opinion is because they were distracted.2
Third, Defendants argue that Dr. Stevick’s opinions are based on testing the blender
using water, as opposed to using the colder ingredients of fruit and ice that Mrs. Cerrato said that
she used, and did not account for the twenty minute cool-down period that Mrs. Cerrato
described. Defendants point out that their expert has opined that when only water is blended
inside the cup, the blade will rotate unimpeded, faster, and with less resistence creating greater
heat from friction. (Doc. No. 51-3, p. 20 of 55). Thus, Defendants argue that because Dr.
Stevick’s opinions are not based on the undisputed facts of this case, his opinions are not based
on sufficient facts, he applies improper methodology, and his opinions should be stricken. The
Court disagrees.
Dr. Stevick gave the following reasons why he used water in his tests instead of the
actual ingredients: “Because most fruits are mostly water. You won’t get a significantly
different answer. And it’s a big mess.” (Doc. No. 51-2, depo. p. 84). While this answer does
not address his failure to use ice or to incorporate the twenty minute cooling period after the
blender was turned off, these failures can be brought out during cross-examination. His opinions
based on his testing of the blender using water are still relevant to this case. Defendants are free
to argue that the use of fruit and ice, as well as applying the cooling off period, would have
likely increased the amount of time that the blender was running in order to overheat compared
to the time estimates from Dr. Stevick’s testing.

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Likewise, Dr. Stevick may not opine that Plaintiffs were distracted, even if this opinion
is not made to explain the time estimate difference. However, Dr. Stevick may testify that users
can get distracted when using a blender and that distraction is something that should be
considered by Defendants when creating their product and the accompanying warning.
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Fourth, Defendants argue that Dr. Stevick’s opinion does not explain away alternate
theories, including the strange noise Mr. Cerrato had said that he heard. Specifically, Mr.
Cerrato stated that he had heard the blender making a loud, escalating noise before they shut it
off. (Doc. No. 26-5, depo. p. 20–21). Thus, Defendants argue that Dr. Stevick’s opinion fails to
consider other possible explanations for the incident.
Defendants, however, do not explain how the noise Mr. Cerrato described is evidence of
another possible explanation for the incident. To the extent that Defendants can argue that there
are other explanations that Dr. Stevick’s opinion does not account for, they are free to raise such
arguments through cross-examination.
Fifth, Defendants argue that based on the above, Dr. Stevick’s opinion will confuse the
jury and unfairly prejudice Defendants. However, the Court has found that the only meritorious
argument proffered by Defendants is that Dr. Stevick should not be allowed to opine that
Plaintiffs were in fact distracted while the blender was on. As such, the Court finds that Dr.
Stevick’s opinions will not confuse the jury or unfairly prejudice Defendants. Accordingly, the
Court denies Defendants’ motion to strike Dr. Stevick’s opinions based on Daubert, except to the
extent that he cannot opine that Plaintiffs were, in fact, distracted while operating the blender.
III. Motion in Limine
Defendants do not differentiate their motion to strike Dr. Stevick’s testimony based on
Daubert and their motion in limine to preclude his testimony. Thus, for the same reasons as
stated above, the Court denies Defendants’ motion in limine to exclude Dr. Stevick’s testimony,
except to the extent that he cannot opine that Plaintiffs were, in fact, distracted while operating
the blender.

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IV. Conclusion
Accordingly, it is ORDERED AND ADJUDGED that Defendants’ Motion to Strike the
Testimony of Plaintiffs’ Expert and Motion in Limine to Preclude His Testimony (Doc. No. 52)
is DENIED, except to the extent that Dr. Stevick may not opine that Plaintiffs were distracted
while operating the blender.
DONE AND ORDERED at Tampa, Florida, this 7th day of November, 2017.

Copies to:
Counsel of Record

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