UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF FLORIDA 

Case No.: 22-81731-CV-MIDDLEBROOKS 

DEVIN FILIPPELLI as 

Personal Representative of the 

ESTATE OF KRYSTAL TALAVERA, 

on behalf of the Estate and her Survivors, 

Plaintiff, 

V. 

GROW, LLC ( d/b/a KD IN CORPORA TED 

and THE KRA TOM DISTRO); and SEAN 

MICHAEL HARDER, individually, 

Defendants. 

I ----------------

ORDER GRANTING IN PART MOTION 

FOR ENTRY OF FINAL DEFAULT JUDGMENT 

THIS CAUSE is before the Court upon Plaintiff's Motion for Default Judgment against 

Defendants, GROW, LLC (d/b/a KD INCORPORATED and THE KRATOM DISTRO), and 

SEAN MICHAEL HARDER, filed on April 7, 2023 . (DE 43). For the following reasons, the 

Motion is granted as to liability and economic damages. 

On March 15, 2023, Defendants withdrew their Answer and Affirmative Defenses and 

consented to default judgment citing financial inability to defend this action. (DE 36). Pursuant 

to Plaintiff's Motion for Entry of Default (DE 40), the Clerk entered default as to Defendants on 

March 24, 2023 . (DE 42). Plaintiff now moves for default judgment on Count I, strict liability for 

failure to warn; Count II, strict liability for design defect; and Count V, negligence. 

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I. JURISDICTION 

There is diversity jurisdiction under 28 U.S.C § 1332. (DE 5 ,r,r 11-12). Defendant GROW, 

LLC is a limited liability company with citizenship in Idaho. Defendant Mr. Harder is the only 

member of GROW, LLC and is domiciled in Meridian, Idaho. Plaintiff is domiciled in Boynton 

Beach, Florida. The amount in controversy exceeds $75,000. Although now withdrawn, 

Defendants filed an Answer and Affirmative Defenses (DE 16) without objecting to personal 

jurisdiction. 

II. BACKGROUND 

Krystal Talavera purchased KD IN CORPORA TED and KRA TOM DISTRO branded 

Kratom products from Defendants. Talavera's purchases included "Space Dust," "Green Maeng 

Da" (a/k/a "G2"), "Green Horned Maeng Da" (a/k/a "G4"), and "Green Riau" (a/k/a "GS"). All 

four (4) brands were packaged in Idaho by Defendants, GROW, LLC and HARDER, and shipped 

to Krystal's home in Boynton Beach, Florida. (ii 36-37). 1 Defendants manufactured, marketed, 

distributed, and sold Kratom. (iii! 28, 49). 

Kratom is an herbal extract derived from the leaves of Mitragyna speciosa, a tropical tree 

native to Southeast Asia. (ii 15). Kratom has serious health risks, including abuse, dependence, 

addiction, overdose, and death. (ii 19). Kratom is not FDA approved. Kratom is not approved for 

importation and distribution in interstate commerce without a premarket substantiation that the 

product containing Kratom is reasonably safe for human consumption. (,r 22). None of the 

products at issue contained warnings about the safety of Kratom. (See DE 40-2). 

On the morning of June 20, 2021 , Talavera was home preparing a Father's Day breakfast 

for Biagio Vultaggio, her partner and father of her youngest child, D.G.V. (ii 38). Mr. Vultaggio 

1 Hereinafter citations to the Amended Complaint (DE 5) will be as follows: (ii_). 

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awoke to find Talavera lying face down on the floor with their child nearby. Next to Talavera was 

an open bag of Defendants' KRATOM DISTRO "Space Dust" product. (if 41-42). An autopsy 

performed by the Palm Beach County Coroner determined the cause of death was "acute 

mitragynine intoxication," in other words, Kratom intoxication. (if 45). Plaintiff submitted the 

expert report of Dr. JosefThundiyil which further supports the findings that: 1) Krystal Talavera's 

cause of death was acute mitragynine intoxication, in other words, kratom overdose; 2) Defendants 

failed to warn Krystal Talavera of the risks associated with consumption ofkratom as no warnings 

or instructions for use were included with the products; and 3) Krystal Talavera did not cause her 

own death. 

III. LEGAL STANDARD 

Federal Rule of Civil Procedure 55(b)(2) authorizes a court to enter default judgment 

against a defendant who fails to plead or otherwise defend within the required time. " [B]efore 

entering a default judgment for damages, the district court must ensure that the well-pleaded 

allegations in the complaint, which are taken as true due to the default, actually state a substantive 

cause of action and that there is a substantive, sufficient basis in the pleadings for the particular 

relief sought." Tyco Fire & Sec., LLCv. Alcocer, 218 F. App'x 860, 863 (11th Cir. 2007) (emphasis 

in original). " (A] default judgment cannot stand on a complaint that fails to state a claim." 

Chudasama v. Mazda Motor Corp., 123 F.3d 1353, 1370 n.41 (11th Cir. 1997) (citations omitted). 

IV. LIABILITY 

The entry of default constitutes an admission by the Defendants of the well-pleaded 

allegations in the Complaint. See Cancienne v. Drain Master of S. Fla. , Inc., No. 08-611 23-CIV, 

2008 WL 5111 264, at *1 (S.D. Fla. Dec. 3, 2008). In evaluating a motion for entry of default 

judgment, all well-pled allegations of the Complaint are deemed to be admitted. Eagle Hospital 

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Physicians v. SRG Consulting, 561 F. 3d 1298, 1307 (11th Cir. 2009); Buchanan v. Bowman, 820 

F. 2d 359, 361(1 lth Cir. 1987). By virtue of the default, Defendants have admitted all of the 

allegations set forth in the Complaint. SRG Consulting, 561 F. 3d at 1307 (quoting Nishimatsu 

Const. Co. v. Houston Nat'! Bank, 515 F. 2d 1200, 1206 (5th Cir. 1975) and citing Bowman, 820 

F.2d at 361). "A default judgment is unassailable on the merits" if it is supported by "well pleaded 

allegations." Houston Nat'! Bank, 515 F. 2d at 1206. In addition to the pleadings, a court may also 

rely on evidence such as affidavits and declarations. See Chanel, Inc. v. Sea Hero , 234 F. Supp. 

3d 1255, 1263 (S.D. Fla. 2016). 

A. COUNT I - STRICT LIABILITY FAILURE TO WARN AGAINST BOTH 

DEFENDANTS 

Plaintiff alleges that Defendants are strictly liable for failing to warn Talavera of the 

dangers of consuming its products containing Kratom, like "Space Dust." (if 52). "Florida courts 

have recognized that ' [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."' Grieco v. Daiho Sangyo, Inc. , 344 So. 3d 11 , 20 (Fla. 4th DCA 2022). Moreover, "a 

product is considered defective 'when the foreseeable risks of harm posed by the product could 

have been reduced or avoided by the provision of reasonable instructions or warnings' and their 

omission 'renders the product not reasonably safe."' Id. ( citation omitted). "Unless the danger is 

obvious or known, a manufacturer has a duty to warn where its product is inherently dangerous or 

has dangerous propensities." Id. ( citation omitted). 

Plaintiff's claim for failure to warn is merited on its face. Defendants simply failed to issue 

any warning whatsoever. (,r,r 52-66, 110) (showing photos of unlabeled Kratom products sold by 

Defendants). Without proper warnings, the Kratom products were unreasonably dangerous, unfit 

for their intended use, and highly dangerous and defective. (if 58). 

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B. COUNT II - STRICT LIABILITY DESIGN DEFECT AGAINST BOTH 

DEFENDANTS 

Plaintiff alleges that the Kratom products (listed above) contain a design defect, making 

the products unreasonably dangerous. (if 67). In Florida, a plaintiff can rely on either the consumer 

expectations test or the risk utility test to establish a design defect. See Aubin v. Union Carbide 

Corp., 177 So. 3d 489, 512 (Fla. 2015); Font v. Union Carbide Corp. , 199 So. 3d 323, 325 (Fla. 

3d DCA 2016). The consumer expectations test "considers whether a product is unreasonably 

dangerous in design because it failed to perform as safely as an ordinary consumer would expect 

when used as intended or in a reasonably foreseeable manner." Aubin, 177 So. 3d at 503. And 

under a risk utility test, "the plaintiff must demonstrate that 'the foreseeable risks of harm posed 

by the product could have been reduced or avoided by the adoption of a reasonable alternative 

design by the seller or other distributor, or a predecessor in the commercial chain of distribution, 

and the omission of the alternative design renders the product not reasonably safe.'" Id. at 505 

( citation omitted). 

Applying either test to this matter results in a finding of liability against Defendants. 

Defendants sold Kratom products to Talavera with the expectation that they would be used for 

human consumption to obtain the benefits described on Defendants' website. (,r,r 29, 36-46, 67-

74; see also DE 1-2 (listing benefits ofK.ratom such as pain relief, stress relief, boost of energy, 

and euphoria)). The Kratom products reached Krystal without substantial change to their 

condition. (if 53). The products were used as intended. (,r,r 57, 72-73). However, the products were 

unreasonably dangerous and defectively designed, causing the death of Talavera as evidenced by 

autopsy and toxicology identifying Kratom as the sole cause of death. (,r,r 67-74, DE 43-3). 

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C. COUNT V - NEGLIGENCE AGAINST BOTH DEFENDANTS 

"To prevail on a products liability claim based on negligence, a plaintiff must establish: 

(1) a duty or obligation recognized by the law requiring the defendant to protect others from 

unreasonable risks; (2) a breach of that duty; (3) a reasonably close casual connection between the 

conduct and the resulting injury; and (4) actual loss or damages." Grieco, 344 So. 3d at 22. "The 

duty element of negligence focuses on whether the defendant's conduct foreseeably created a 

broader 'zone of risk' that poses a general threat of harm to others." Id. at 23 (citation omitted). 

To establish a causal connection, or proximate cause, a court must determine: "(1) causation in 

fact, i.e., whether the defendant's conduct was a substantial factor in producing the result, and 

(2) whether the defendant's responsibility is superseded by an abnormal intervening force. " Id. 

Plaintiff has established all the requirements of negligence. Defendants had a duty of care 

to Talavera in selling her Kratom products. Given Kratom's known risks (ii 95), Talavera fell 

within the "zone of risk." Defendants breached that duty by failing to provide warnings and 

instructions for use with their Kratom products. (,r,r 7, 28, 52-66). Plaintiff has also alleged and 

submitted record evidence that Defendants' Kratom products were defective and unreasonably 

dangerous. (See ,r,r 52-74, 84-93, 94-99; DE 43-3). Based on the coroner's report and expert report, 

there is cause in fact. There were no abnormal intervening forces. There are damages, given 

Talavera's death. Thus, Defendants are liable for negligence. 

V. DAMAGES 

The Court may enter the relief sought by Plaintiff without an evidentiary hearing based 

upon affidavits and other documentary evidence since the facts are not disputed. See, Fed. R. Civ. 

P. 55(b)(l) ("If the plaintiff's claim is for a sum certain that can be made certain by computation, 

the clerk - on the plaintiff's request, with an affidavit showing the amount due - must enter 

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judgment for that amount and costs against a defendant who has been defaulted for not appearing 

and who is neither a minor nor an incompetent person." "Although the Court is permitted to 

conduct a hearing on a default judgment in regards to damages pursuant to Fed. R. Civ. P. 

55(b)(2)(B), an evidentia.ry hearing is not necessary where there is sufficient evidence on the 

record to support the request for damages."); Chanel, Inc. v. Sea Hero, 234 F. Supp. 3d 1255, 1263 

(S.D. Fla. 2016); see also S.E.C. v. Smyth, 420 F.3d 1225, 1232 n.13 (11th Cir. 2005) ("Rule 

55(b)(2) speaks of evidentia.ry hearings in a permissive tone ... We have held that no such hearing 

is required where all essential evidence is already of record.") ( citations omitted); PetMed Express, 

Inc. v. MedPets.Com, Inc., 336 F. Supp. 2d 1213, 1223 (S.D. Fla. 2004) (entering default judgment, 

permanent injunction and statutory damages in a Lanham Act case without a hearing). 

A. ECONOMIC DAMAGES 

Plaintiff seeks economic and noneconomic damages under Fla. Stat. § 768.21. As to 

economic damages, Plaintiff seeks loss of prospective net accumulations of the estate and funeral 

expenses. I find that the economic damages are calculable. Plaintiff submitted a report from a 

forensic accounting firm that calculates the Estate's loss of prospective net accumulations 

consistent with Fla. Stat.§§ 768.18, 768.21(6)(a). (DE 43-7). These damages are recoverable 

under§ 768.21(6)(a) because the decedent is survived by lineal descendants, her minor children. 

(1117) (listing initials of minor children as: J.C.F., B.B.F, and D.G.V.). Plaintiff also submitted 

a receipt of the Estate's funeral costs, which are recoverable under Fla. Stat. § 768.21(6)(b). 

Accordingly, the Estate is awarded the following damages: 

a. Funeral Expenses: $20,122.10. 

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b. Economic Damages: $4,625,729.00 (i.e., present value of lost earnings reduced 

by personal consumption to be net accumulations of $2,033,886 and present 

value ofloss household services of $2,591 ,843 2

). 

c. Total Damages of the Estate of Krystal Talavera: $4,642,895.70. 

B. NON-ECONOMIC DAMAGES 

In addition to the Estate's economic damages, Plaintiff also seeks (1) loss of support and 

services and (2) mental pain and suffering for Talavera's surviving children; Devin Filippelli, 

J.C.F., B.B.F., D.G.V. Devin Filippelli, although an adult, can recover because Talavera did not 

leave a surviving spouse. § 768.21(3). However, I do not find that these damages are reasonably 

calculable and thus I have set an evidentiary hearing to resolve that issue. (DE 52). 

Accordingly, it is hereby ORDERED AND ADJUDGED that: 

1. Plaintiff's Motion for Final Default Judgment (DE 43) against Defendants, GROW, LLC 

(d/b/a K.D INCORPORATED and THE KRATOM DISTRO), and SEAN MICHAEL 

HARDER is GRANTED IN PART. 

2. Final judgment is withheld pending resolution of Plaintiff's non-e o 

SIGNED in chambers in West Palm Beach, Florida this 

Copies to: Counsel of Record 

ALD M. MIDDLEBROOKS 

UNITED STATES DISTRICT JUDGE 

2 Loss of household services are recoverable. See Plantation Gen. Hosp. Ltd. P'ship v. Div. of 

Admin. Hearings, 243 So. 3d 985, 992 (Fla. 4th DCA 2018). 

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