UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF FLORIDA 

CIVIL DIVISION 

Case No. 22-81731-CV-MIDDLEBROOKS/MATTHEWMAN 

DEVIN FILIPPELLI, as Personal 

Representative of the ESTATE OF 

KRYSTAL TALAVERA, on behalf of the 

Estate and her Survivors, 

Plaintiff, 

vs. 

GROW, LLC (d/b/a KD NCORPORATED 

and THE KRATOM DISTRO); and 

SEAN MICHAEL HARDER, individually. 

Defendants.

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DEFENDANT SEAN MICHAEL HARDER’S ANSWER, AFFIRMATIVE DEFENSES 

AND DEMAND FOR JURY TRIAL TO PLAINTIFF’S AMENDED COMPLAINT 

Defendant, SEAN MICHAEL HARDER (hereinafter “HARDER”), hereby files his 

Answer, Affirmative Defenses, and Demand for Jury Trial to Plaintiff’s Amended 

Complaint [Doc. 5] and states as follows: 

I. INTRODUCTION 

 HARDER denies all allegations in this unnumbered paragraph. 

II. STATEMENT OF PARTIES 

1. Without knowledge and thus denied. 

2. Without knowledge and thus denied. 

3. Without knowledge and thus denied. 

4. Without knowledge and thus denied. 

5. Without knowledge and thus denied. 

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6. Denied. 

7. Denied. 

8. Denied. 

9. Denied. 

III. JURISDICTION AND VENUE 

10. Denied. 

11. Denied. 

12. Denied. 

13. Denied. 

14. Denied. 

IV. STATEMENT OF FACTS 

A. Kratom is a deadly drug that is being marketed as a safe dietary supplement 

in the United States. 

15. Denied. 

16. Denied. 

17. Denied. 

18. Denied. 

19. Denied. 

20. Denied. 

21. Denied. 

22. Denied. 

23. Denied. 

24. Denied. 

25. Denied. 

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26. Denied. 

27. Denied. 

28. Denied. 

29. Denied. 

B. Krystal Talavera suffered a preventable and untimely death caused by 

Kratom. 

30. Denied. 

31. Without knowledge thus denied. 

32. Without knowledge thus denied. 

33. Without knowledge thus denied. 

34. Without knowledge thus denied. 

35. Without knowledge thus denied. 

36. Denied. 

37. Denied. 

38. Without knowledge thus denied. 

39. Without knowledge thus denied. 

40. Without knowledge thus denied. 

41. Without knowledge thus denied. 

42. Without knowledge thus denied. 

43. Without knowledge thus denied. 

44. Without knowledge thus denied. 

45. Without knowledge thus denied. 

46. Without knowledge thus denied. 

 

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V. DAMAGES AND CAUSES OF ACTION 

47. Denied. 

48. Denied. 

49. Denied. 

50. Denied. 

51. Denied. 

COUNT ONE – GROW, LLC AND SEAN MICHAEL HARDER 

(STRICT LIABILITY FAILURE TO WARN PURSUANT TO THE 

RESTATEMENT SECOND OF TORTS § 402A) 

52. Denied. 

53. Denied. 

54. Denied. 

55. Denied. 

56. Denied. 

57. Denied. 

58. Denied. 

59. Denied. 

60. Denied. 

61. Denied. 

62. Denied. 

63. Denied. 

64. Denied. 

65. Denied. 

66. Denied. 

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COUNT TWO – GROW, LLC AND SEAN MICHAEL HARDER 

(STRICT LIABILITY DESIGN AND MANUFACTURING DEFECT 

PURSUANT TO THE RESTATEMENT SECOND OF TORTS § 402A) 

67. Denied. 

68. Denied. 

69. Denied. 

70. Denied. 

71. Denied. 

72. Denied. 

73. Denied. 

74. Denied. 

COUNT THREE – GROW, LLC AND SEAN MICHAEL HARDER 

(BREACH OF WARRANTY PURSUANT TO FLA. STATE. §§ 672.313; 

672.314; & 672.315.) 

75. Denied. 

76. Denied. 

77. Denied. 

78. Denied. 

79. Denied. 

80. Denied. 

81. Denied. 

82. Denied. 

83. Denied. 

COUNT FOUR – GROW, LLC AND SEAN MICHAEL HARDER 

(FRAUDULENT MISREPRESENTATION) 

84. Denied. 

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85. Denied. 

86. Denied, including all subparts. 

87. Denied, including all subparts. 

88. Denied. 

89. Denied. 

90. Denied. 

91. Denied. 

92. Denied. 

93. Denied. 

COUNT FIVE – GROW, LLC AND SEAN MICHAEL HARDER 

(NEGLIGENCE) 

94. Denied. 

95. Denied. 

96. Denied. 

97. Denied. 

98. Denied, including all subparts. 

99. Denied. 

COUNT SIX – GROW, LLC AND SEAN MICHAEL HARDER 

(NEGLIGENCE PER SE PURSUANT TO VIOLATIONS OF THE FOOD, 

DRUG, AND COSMETICS ACT AND DIETARY SUPPLEMENT HEALTH 

AND EDUCATION ACT) 

100. Denied. 

101. Denied. 

102. Denied. 

103. Denied. 

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104. Denied. 

105. Denied. 

106. Denied, including all subparts. 

107. Denied. 

108. Denied. 

109. Denied. 

110. Denied. 

111. Denied. 

112. Denied. 

113. Denied. 

114. Denied. 

CLAIMS FOR DAMAGES COMMON TO ALL COUNTS 

CLAIM OF PERSONAL REPRESENTATIVE ON BEHALF OF THE 

ESTATE AND SURVIVORS 

115. Denied. 

CLAIM OF PERSONAL REPRESENTATIVE ON BEHALF OF THE 

ESTATE OF KRYSTAL TALAVERA 

116. Denied, including all subparts. 

CLAIM OF PERSONAL REPRESENTATIVE ON BEHALF OF 

SURVIVING CHILDREN 

117. Denied, including all subparts. 

VI. PRAYER FOR RELIEF AND DEMAND FOR JURY TRIAL 

Defendant denies all allegations in this unnumbered paragraph. 

GENERAL DENIAL 

HARDER denies all allegations in the operative complaint not expressly admitted herein 

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AFFIRMATIVE DEFENSES 

 1. For a defense herein, HARDER contends that decedent, by her actions, caused or 

contributed to the loss alleged and hence the Plaintiff may not recover or, alternatively, Plaintiff 

may not recover fully. Accordingly, any award in favor of Plaintiff is barred or must be reduced in 

accordance with the law of comparative fault. 

 2. For a defense herein, HARDER contends that the negligence of another, not of 

this Defendant, caused or contributed to the loss alleged; and that such negligence of another 

was the sole proximate cause, superseding or independent intervening cause of the loss alleged. 

 3. For a defense herein, HARDER contends that joint and several liability has been 

abolished in Florida as of April 26, 2006, and HARDER affirmatively pleads all rights available to 

it under the applicable law set forth in the Tort Act. 

 4. For a defense herein, HARDER contends that this accident gives rise to an 

apportionment of damages, if any, in relation to the degree of fault of the parties, persons, or 

employers, pursuant to the Florida Supreme Court decision of Fabré v. Marin, 623 So. 2d 1182 

(Fla. 1993). In compliance with Nash v. Wells Fargo Guard Services, Inc., 678 So. 2d 1262 (Fla. 

1996), HARDER identifies the following persons or entities as non-party tortfeasors in this case: 

(1) any person/entities that manufactured, imported, or distributed any substance that caused or 

contributed to loss; (2) any person/entity that provided instructed, advised, or communicated to 

decedent how to use any substance that caused or contributed to the loss; (3) other currently 

unidentified parties, persons, firms, or corporations over whom HARDER had no control or duty 

to control, and for whose actions HARDER cannot be held responsible or legally liable. HARDER 

reserves the right to amend this affirmative defense to identify any additional individuals or entities 

responsible, in whole or in part, for the Plaintiffs' damages as they are revealed through 

investigation and discovery in this case. 

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 5. For a defense herein, HARDER contends that the loss alleged resulted from the 

abuse, misuse, or alteration of the product identified in the operative Complaint and/or that it was 

not in substantially the same condition as when it left the custody and control of the manufacturer. 

Hence, the Plaintiff may not recover. 

 6. For a defense herein, HARDER contends that the product identified in the 

operative complaint was manufactured in a reasonably safe manner in full compliance with all 

applicable laws, statutes, and regulations and, hence, Plaintiffs may not recover. 

 7. For a defense herein, HARDER contends that the product in question was not 

unreasonably dangerous, defective, or unsafe, since the product was designed and manufactured 

in accordance with the technical knowledge and published scientific literature available at the time 

of design and manufacture. 

 8. For a defense herein, HARDER contends that Florida does not recognize a postsale duty to warn, and hence any post-sale duty to warn claim is not actionable under Florida law. 

 9. For a defense herein, HARDER contends that it is entitled to a setoff for all 

settlements and compensation that Plaintiffs have received, or may receive, as a result of the 

accident which is alleged to have occurred. 

 10. For a defense herein, HARDER contends that Plaintiff is barred from recovering 

all damages or medical expenses paid or payable from collateral sources. 

 11. For a defense herein, HARDER contends that Plaintiff failed to mitigate the 

damages and, hence, Plaintiff may not recover or, alternatively, may not fully recover their alleged 

damages. 

 12. For a defense herein, HARDER contends that the subject product complied with 

all relevant federal and state statutes or regulations in effect at the time the product was delivered 

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and, therefore, pursuant to Florida Statute §768.1256, there is a rebuttable presumption that the 

product in question was not defective. 

 13. For a defense herein, HARDER pleads and asserts the state-of-the-art defense 

pursuant to Florida Statute §768.1257. 

 14. For a defense herein, HARDER contends that the operative Complaint fails to state 

claims for which relief can be granted under Florida law. 

 15. For a defense herein, HARDER contends that the subject product has a 

reasonably safe design as measured by the Risk Utility Analysis. 

 16. For a defense herein, HARDER contends that it has been prejudiced in its defense 

to the extent that evidence relevant to this case may have been destroyed or altered by others. 

 17. For a defense herein, HARDER contends that the subject action is barred by the 

applicable statute of repose, statute of limitation, doctrine of estoppel and laches, and any other 

applicable limitation based on the age of the product, the date of the accident, and the date the 

subject suit was filed. 

18. HARDER reserves the right to seek leave to amend its Answer and Affirmative 

Defenses as its investigation and discovery in this case proceeds. 

DEMAND FOR JURY TRIAL 

 Defendant, HARDER, demands trial by jury of all issues triable as a matter of right. 

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/s/Justin D. Niznik

Designated email addresses: 

justin.niznik@bowmanandbrooke.com 

kara.thomas@bowmanandbrooke.com 

orfa.diaz@bowmanandbrooke.com 

JUSTIN D. NIZNIK 

Florida Bar No. 774901 

BOWMAN AND BROOKE LLP 

1064 Greenwood Boulevard - Suite 212 

Lake Mary, Florida 32746-5419 

(407) 585-7600 

(407) 585-7610 – Fax 

Attorneys for Defendants 

GROW, LLC and 

SEAN MICHAEL HARDER

CERTIFICATE OF SERVICE 

I HEREBY CERTIFY that on December 27, 2022, a true and correct copy of the 

foregoing was electronically filed with the Clerk of the Court using the CM/ECF system, 

system, which generates a notice of the filing to all attorneys of record. 

/s/Justin D. Niznik

JUSTIN D. NIZNIK 

Florida Bar No. 774901 

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