Cerrato et al v. Nutribullet, LLC et al
ORDER denying 51 Motion for summary judgment. Each party may file one motion in limine containing all of their arguments in a single document not to exceed 25 pages by November 16, 2017. Responses thereto must be filed by November 27, 2017. The parties' joint pretrial statement must be filed by December 1, 2017. Signed by Judge Susan C Bucklew on 11/7/2017. (JD)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
PHYLLIS B. CERRATO and
Case No. 8:16-cv-3077-T-24 JSS
NUTRIBULLET, LLC and
CAPITAL BRANDS, LLC,
This cause comes before the Court on Defendants’ Motion for Summary Judgment.
(Doc. No. 51). Plaintiffs oppose the motion. (Doc. No. 58). As explained below, the motion is
I. Standard of Review
Summary judgment is appropriate “if the movant shows that there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a). The Court must draw all inferences from the evidence in the light most favorable to the
non-movant and resolve all reasonable doubts in that party's favor. See Porter v. Ray, 461 F.3d
1315, 1320 (11th Cir. 2006)(citation omitted). The moving party bears the initial burden of
showing the Court, by reference to materials on file, that there are no genuine issues of material
fact that should be decided at trial. See id. (citation omitted). When a moving party has
discharged its burden, the non-moving party must then go beyond the pleadings, and by its own
affidavits, or by depositions, answers to interrogatories, and admissions on file, designate
specific facts showing there is a genuine issue for trial. See id. (citation omitted).
Plaintiffs Phyllis and German Cerrato bought Defendants’ Nutribullet Pro 900 blender on
December 20, 2014. Once home, Mrs. Cerrato unboxed the blender in order to make a smoothie.
She placed ingredients inside the blender cup, and turned the blender on. Once the ingredients
reached her desired consistency, she attempted to turn the blender off, but she was unable to do
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. 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 then 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.
The directions that came with the blender provide the following information about how to
blend items after putting ingredients into the blender cup and attaching the lid to the cup:
Press the vessel blade side-down onto the Power Base and extract for
no longer than 1 minute. If more extraction is needed, wait 1 minute,
then repeat the extraction process in 1 minute intervals up to 3 times
as needed to achieve the desired consistency. If more than 3 1minute extractions are needed, allow the power base to cool for 2–3
minutes after the third extraction before beginning the next round.
(Doc. No. 26-1, p. 4). The directions also contained a page titled, “IMPORTANT
SAFEGUARDS AND CAUTIONARY INFORMATION,” and it provided the following
Never allow the motor to run for more than one minute at a
time, as it can cause permanent damage to the motor. If the
motor stops working, unplug the Power Base and let it cool
for an hour before attempting to use it again. Your
NUTRIBULLET has an internal thermal breaker that shuts
off the unit when it overheats. . . .
Never leave the NUTRIBULLET unattended while it is in
(Doc. No. 26-1, p. 2). Finally, the blender itself has the following warning printed directly on
the motor base: “Do not operate continuously for more than 1 minute.” (Doc. No. 26-2).
According to Plaintiffs’ expert, Dr. Glen Stevick, the explosion occurred because the
blender was defectively designed. Specifically, he analyzed the incident and stated the
The blender is designed for blending; it is not designed for cooking.
However, the frictional energy imparted to the cup contents by the
blending action can and will heat up the contents inside of the cup. .
. . Heat buildup inside of a constant volume (i.e. the cup container)
will lead to a pressure increase. . . . There is no pressure relief built
into the cup other than unscrewing the lid. . . . There are no indicators
for pressure build-up except resistance upon untwisting. . . . There is
no obvious way to judge the danger of or amount of pressure and heat
buildup without handling the cup directly, thereby exposing oneself
to release of hot contents.
(Doc. No. 51-1, ¶ 23–27). He opined that one of the ways that the blender is defective is as follows:
As the amount of energy added to the contents being blended is
directly proportional to the time the motor is running, a timer is
crucial in safeguarding the user. [The warning] only warns against
running [the blender] for more than a minute. Without a motor timer
(set to approximately 1 minute) and/or a second thermal cut-off
switch, this is a defective design. . . . The addition of a timer to the
electrical circuit would be a minimal expense (likely on the order of
(Doc. No. 51-1, ¶ 43–44). Additionally, he opined that the blender was defective because
Defendants’ warnings were inadequate because they “do not adequately inform the user of the
temperature and pressure dangers that occur if the unit is used for more than 1 minute.” (Doc.
No. 51-1, ¶ 50).
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.
III. Motion for Summary Judgment
Defendants now move the Court to grant summary judgment on all three counts based on
two main arguments: (1) Plaintiffs cannot prove causation; and (2) Plaintiffs’ inadequate
warning theory is deficient. Accordingly, the Court will address both arguments.
Defendants argue that they are entitled to summary judgment because Plaintiffs cannot
prove causation. While the parties appear to agree that Mrs. Cerrato used the blender and that
when she opened the lid, the contents exploded, the parties dispute three critical facts. First, the
parties dispute whether Mrs. Cerrato read the instruction manual before using the blender,
because she has made conflicting statements on this issue. The instructions warn not to run the
blender for more than one minute at a time. Second, the parties dispute how long Mrs. Cerrato
let the blender run before turning it off, as she has given conflicting estimates. Third, the parties
dispute whether Mrs. Cerrato left the blender unattended, as she has made conflicting statements
on this issue as well.
One of the main disputes in this case is how long the blender remained running before it
was turned off. Plaintiffs have given differing estimates, but their longest estimate is that the
blender ran for six minutes before being unplugged. However, Plaintiffs’ own expert has opined
that the explosion that occurred could not have been caused by the blender running for 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). As
a result, Defendants argue that Plaintiffs cannot show that a design defect or inadequate
warnings caused Mrs. Cerrato’s injuries, because the accident could not have occurred under
Plaintiffs’ version of the facts. Stated differently, Defendants contend that since Plaintiffs’ own
expert has opined that the incident could not have occurred under Plaintiffs’ version of the
facts—that they only allowed the blender to run for up to six minutes—Defendants are entitled
to summary judgment on all claims due to lack of causation. As explained below, the Court
rejects this argument.
Construing the evidence in the light most favorable to Plaintiffs, a jury could find that the
blender overheated which caused the explosion when Mrs. Cerrato opened the lid to the blender
cup. What is disputed is the length of time she let the blender run. Defendants contend, and
Plaintiffs’ own expert agrees, that Mrs. Cerrato would have had to let the blender run for
significantly longer than the conflicting amounts of times that Plaintiffs have stated that she let it
run. However, the dispute over the length of time that the blender ran does not undermine the
fact that the blender overheated and exploded. Instead, the dispute over the length of time that
the blender ran goes to the heart of Defendants’ defense—that Mrs. Cerrato misused the blender
and that her misuse of the blender is what caused the blender to overheat and ultimately explode.
Stated differently, even if the jury credits Plaintiffs’ expert’s opinion that Mrs. Cerrato let the
blender continuously for at least ten minutes, the question still remains whether her running the
blender continuously for at least ten minutes constitutes misuse of the blender, which could
relieve Defendants of liability or limit their exposure. See High v. Westinghouse Electric Corp.,
610 So. 2d 1259, 1262 (Fla. 1993)(stating that in order for strict liability to apply, the product
must have been used for its intended purpose); Standard Havens Products, Inc. v. Benitz, 648 So.
2d 1192, 1197 (Fla. 1995)(stating that when the plaintiff’s product liability claim sounds in
negligence, the defendant can assert the defense of comparative negligence based on the
plaintiff’s misuse of the product).
Defendants rely on Dowdy v. Suzuki Motor Corporation, 567 Fed. Appx. 890 (11th Cir.
2014), to support their argument that Plaintiffs cannot establish causation because their expert
opined that the blender must have run longer than they stated. In Dowdy, the plaintiff was riding
his motorcycle when his rear wheel locked, and he crashed into a truck. See id. at 891. The
plaintiff’s sole theory of causation for his product liability claim was that the motorcycle’s
output shaft fractured and caused a piece to break loose and wedge inside the swing arm
assembly tube. See id. The plaintiff’s expert opined that the wedging that caused the plaintiff’s
wheel to lock would not have occurred if the swing arm assembly tube was round as opposed to
oval. See id. The plaintiff’s expert further opined that there was no evidence that any other
mechanical error other than the wedging caused the accident. See id.
It turned out that the plaintiff’s expert was wrong about the shape of the plaintiff’s swing
arm assembly tube, because it was, in fact, round. See id. Because the plaintiff’s sole theory of
causation was undermined by his own expert’s opinion, the district court granted summary
judgment for the defendants due to lack of causation. See id. The appellate court affirmed,
stating that because the expert’s theory of the accident was based on the erroneous belief that
the swing arm assembly tube was oval, the plaintiff was unable to prove causation. See id. at
892. The appellate court pointed out that because the expert opined that wedging would be
impossible in a round swing arm assembly tube, the plaintiff could not prove that wedging
occurred. See id. at 893. Since the plaintiff could not prove that wedging occurred, he could not
prove causation. See id.
This Court is not persuaded by Defendants’ reliance on Dowdy, because in Dowdy there
was no evidence to support the plaintiff’s wedge theory, which was the sole theory of causation.
Conversely, in the instant case, there is evidence that the blender overheated and exploded. The
fact that Plaintiffs appear not to have accurately explained the amount of time that the blender
ran does not undermine the fact that the blender did, in fact, overheat and explode. As such, the
jury will have to determine whether the blender overheated and exploded due to a design defect
and/or due to misuse.
B. Inadequate Warning Theory
Defendants also argue that they are entitled to summary judgment on Plaintiffs’ claims of
inadequate warning. Courts have provided the following guidance regarding claims of
Unless the danger is obvious or known, a manufacturer has a duty to
warn where its product is inherently dangerous or has dangerous
propensities. . . . [In order] “[t]o warn adequately, the product label
must make apparent the potential harmful consequences. The warning
should be of such intensity as to cause a reasonable man to exercise
for his own safety caution commensurate with the potential danger.”
In addition, “[a] warning should contain some wording directed to the
significant dangers arising from failure to use the product in the
prescribed manner, such as the risk of serious injury or death.”
Scheman-Gonzalez v. Saber Mfg. Co., 816 So. 2d 1133, 1139 (Fla. 4th DCA 2002)(internal
Defendants argue that Plaintiffs’ inadequate warnings theory fails because: (1) Plaintiffs
cannot establish that a product defect caused the incident and Mrs. Cerrato’s injuries; and (2)
Plaintiffs’ expert does not provide any causation opinion that different warnings would have
resulted in a different outcome. As explained below, the Court rejects these arguments.
Defendants first argue that Plaintiffs’ inadequate warnings theory fails because Plaintiffs
cannot establish that a product defect caused the incident and their injuries. However, the Court
has already addressed and rejected this argument in the prior “Causation” section of this Order.
Next, Defendants argue that Plaintiffs’ inadequate warnings theory fails because
Plaintiffs’ expert does not provide any causation opinion that different warnings would have
resulted in a different outcome. However, Defendants fail to acknowledge that Plaintiffs’ expert
has opined that the warnings at issue were inadequate.
Specifically, Plaintiffs’ expert, Dr. Glen Stevick, opined that Defendants’ warnings were
inadequate because they “do not adequately inform the user of the temperature and pressure
dangers that occur if the unit is used for more than 1 minute.” (Doc. No. 51-1, ¶ 50).
Additionally, Dr. Stevick pointed to the following warning to show why he believes it is
Never allow the motor to run for more than one minute at a time, as
it can cause permanent damage to the motor. If the motor stops
working, unplug the Power Base and let it cool for an hour before
attempting to use it again. Your NUTRIBULLET has an internal
thermal breaker that shuts off the unit when it overheats. . . .
(Doc. No. 26-1, p. 2). Dr. Stevick explained that the above warning is inadequate because “it
almost implies [the blender] will shut off if it gets hot because of the way it is worded.” (Doc.
No. 51-2, depo. p. 86). However, he explains that the HTTS in the blender (a device that turns
the blender off when it detects high temperature conditions) will only work when it is exposed to
high temperatures, yet it is located directly above the exhaust fan, which is an area that stays
relatively cool as long as the motor is turning the fan. (Doc. No. 51-1, ¶ 35). He further states
that the HTTS has a limit of 135 degrees Celsius, a limit that will protect the motor but which is
too high to protect the user. (Doc. No. 51-1, ¶ 38). When he tested the blender and let it run for
over twenty minutes, the HTTS never activated to shut off the motor. (Doc. No. 51-1, ¶ 39).
Given these expert opinions, the Court rejects Defendants’ argument that Plaintiffs have not
provided expert testimony that the warnings were inadequate.
To the extent that Defendants argue that there must be an expert opinion that specifically
opines that different warnings would have resulted in a different outcome, Defendants fail to cite
to legal authority within Florida or the Eleventh Circuit to support that specific proposition.
Instead, the Florida cases cited by Defendants stand for the proposition that the inadequacy of a
warning must be proved by expert testimony. See Upjohn Co. v. MacMurdo, 562 So. 2d 680,
683 (Fla. 1990); Haggerty v. Upjohn Co., 950 F. Supp. 1160, 1168 (S.D. Fla. 1996).
Furthermore, these two cases address warnings regarding prescription drugs. Thus, the Court is
not persuaded by Defendants’ argument.
Accordingly, it is ORDERED AND ADJUDGED that:
Defendants’ Motion for Summary Judgment (Doc. No. 51) is DENIED.
Each party may file one motion in limine containing all of their arguments in a
single document not to exceed 25 pages by November 16, 2017. Responses
thereto must be filed by November 27, 2017.
The parties’ joint pretrial statement must be filed by December 1, 2017.
DONE AND ORDERED at Tampa, Florida, this 7th day of November, 2017.
Counsel of Record
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