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Plastic Surgery Associates, SC v. Cynosure, Inc.

United States District Court, D. Massachusetts

August 7, 2019

PLASTIC SURGERY ASSOCIATES, S.C., GREEN CHRYSALIS ENTERPRISE, LLC, RENEW SKIN & LASER CENTERS, LLC, ARIZONA ADVANCE AESTHETICS, PLLC and ADVANCED HEALTH WEIGHT LOSS, on behalf of themselves and others similarly situated, Plaintiffs,
v.
CYNOSURE, INC., Defendant. VITA 4 LIFE, INC., Plaintiffs,
v.
CYNOSURE, INC., Defendant.

          MEMORANDUM AND ORDER

          Denise J. Casper United States District Judge.

         I. Introduction

         Plaintiffs Plastic Surgery Associates, S.C., Green Chrysalis Enterprise, LLC, Renew Skin & Laser Centers, LLC, Arizona Advance Aesthetics, PLLC and Advanced Health Weight Loss (collectively, “Plaintiffs”)[1] have filed this putative class action lawsuit against Defendant Cynosure, Inc. (“Cynosure”) alleging violations of Mass. Gen. L. c. 93A (Count I), breach of the implied warranty of merchantability (Count II) and unjust enrichment (Count III) in connection with the sale of Cynosure's SculpSure Noninvasive Body Contouring System (“SculpSure”). D.I. Plaintiffs have moved for class certification pursuant to Federal Rule of Civil Procedure 23(c)(4). D. 60 (and D. 110 in No. 17-11435-DJC). Cynosure has moved for summary judgment on all claims. D. 55. For the reasons explained below, the Court DENIES Plaintiffs' motion for class certification, D. 60 (and D. 110 in No. 17-11435-DJC), and ALLOWS Cynosure's motion for summary judgment, D. 55.

         II. Standard of Review

         A. Class Certification

         A class action may be certified only if “(1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class.” Fed R. Civ. P. 23(a); see In re New Motor Vehicles Canadian Export Antitrust Litig., 522 F.3d 6, 18 (1st Cir. 2008). “In addition to satisfying Rule 23(a)'s prerequisites, parties seeking class certification must show that the action is maintainable under Rule 23(b)(1), (2), or (3).” Amchem Prods. v. Windsor, 521 U.S. 591, 614 (1997). Plaintiffs bear the burden of proving that class certification is warranted. Makuc v. Am. Honda Motor Co., Inc., 835 F.2d 389, 394 (1st Cir. 1987).

         B. Summary Judgment

         The Court grants summary judgment where there is no genuine dispute as to any material fact and the undisputed facts demonstrate that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). “A fact is material if it carries with it the potential to affect the outcome of the suit under the applicable law.” Santiago-Ramos v. Centennial P.R. Wireless Corp., 217 F.3d 46, 52 (1st Cir. 2000) (quoting Sánchez v. Alvarado, 101 F.3d 223, 227 (1st Cir. 1996)). The movant “bears the burden of demonstrating the absence of a genuine issue of material fact.” Carmona v. Toledo, 215 F.3d 124, 132 (1st Cir. 2000); see Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the movant meets its burden, the non-moving party may not rest on the allegations or denials in her pleadings, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986), but “must, with respect to each issue on which she would bear the burden of proof at trial, demonstrate that a trier of fact could reasonably resolve that issue in her favor, ” Borges ex rel. S.M.B.W. v. Serrano- Isern, 605 F.3d 1, 5 (1st Cir. 2010). “As a general rule, that requires the production of evidence that is ‘significant[ly] probative.'” Id. (alteration in original) (quoting Anderson, 477 U.S. at 249). The Court “view[s] the record in the light most favorable to the nonmovant, drawing reasonable inferences in his favor.” Noonan v. Staples, Inc., 556 F.3d 20, 25 (1st Cir. 2009).

         III. Factual Background

         The following facts are drawn primarily from Cynosure's statement of undisputed material facts in support of summary judgment, D. 57, Plaintiffs' response and additional statement of facts in opposition, D. 111, Cynosure's response, D. 117, Plaintiffs' proffer of evidence in support of class certification, D. 65, Cynosure's declaration in opposition to class certification, D. 83, and supporting documents. The facts are undisputed unless otherwise indicated.

         Cynosure is a medical device company located in Westford, Massachusetts that markets and distributes SculpSure. D. 57 ¶ 1; D. 111 at 19 ¶ 1. SculpSure is a non-invasive (non-surgical) body contouring device intended to reduce fat in specific areas of the body. D. 65 ¶ 1. The device works by delivering laser energy to a patient's subcutaneous fat tissue, which raises the temperature of the patient's fat cells and causes those cells to inflame and die. D. 57 ¶ 2; D. 111 at 2 ¶ 2, see D. 83-31 at 2; D. 93 at 207. The treatment time for patients is twenty-five minutes. D. 65 ¶¶ 17-18; D. 93 at 207. Since 2015, Cynosure has sold SculpSure devices to over 1, 400 customers. D. 65 ¶ 20; D. 82 at 11. The customers are mostly plastics surgeons and medical spas. D. 65 ¶ 9. One SculpSure device costs approximately $165, 000. D. 65 ¶ 20; see D. 82 at 7.

         A. SculpSure Development and Sales

         Cynosure developed SculpSure for approximately four years, beginning in 2011. D. 111 at 20 ¶ 5; D. 117 at 22 ¶ 5. At the time, there were other types of devices in the non-surgical body contouring market, but those devices did not rely on lasers. D. 111 at 19-20 ¶¶ 2-3; D. 117 at 21-22 ¶¶ 2-3. Cynosure considered some of the disadvantages of the other types of devices to be that they required multiple sessions, made it difficult to see results, had low success rates and, for some, that they induced “pain at time of treatment.” D. 111 at 21 ¶ 7; D. 117 at 23 ¶ 7. Cynosure hoped to create a device that would ideally be “[e]asy to use, ” cause “[m]inimal or no pain, ” require “[o]ne treatment session . . . [with] no more than 45 minutes per area” and involve “[m]inimal operator interaction.” D. 111 at 21 ¶ 8; D. 117 at 24 ¶ 8.

         During the development of SculpSure in 2013, Cynosure's Medical Advisory Board conducted a review of then-available fat reduction devices and advised that the Cynosure device should have “[s]cientific support for minimum [fat] reduction of 20-25%, preferably 40-50%” and that “[n]on-invasive patients will tolerate ZERO pain.” D. 111 at 23 ¶ 12; D. 92 at 124. In 2014, Cynosure created a “Product Definition Document” that, under the heading “Tactics, ” indicated that Cynosure would “[c]reate a unique selling proposition with better product and pricing” than its competitors. D. 111 at 24 ¶¶ 13, 15; D. 92 at 14. The selling proposition would include messages that SculpSure would “[a]chieve 2x the results as compared to the leading competitor, ” in part by “treating 2 patients in just one hour with a procedure that [would not] have to be monitored by nursing staff.” D. 92 at 14. Cynosure identified one of the key features and benefits of SculpSure as involving “[v]irtually ‘no pain' or discomfort during treatment and post-treatment.” D. 111 at 24 ¶ 16; D. 117 at 28 ¶ 16. Also in 2014, Cynosure engaged Dr. Lawrence Bass to conduct a study aimed at securing FDA clearance for SculpSure. D. 111 at 25 ¶ 21. Dr. Bass' staff reported that the treatment “hurt[] like hell” compared to a competitor's product. Id.; D. 92 at 167.

         SculpSure launched in 2015 and has since received FDA clearance for five different indications: non-invasive fat reduction of the flanks (May 2015), abdomen (July 2015), thighs and back (June 2017) and chin (September 2017). D. 57 ¶ 3; see D. 56-1; D. 56-2; D. 56-3; D. 56-4. Cynosure sells SculpSure largely through face-to-face transactions between customers and Cynosure's more than one hundred sales representatives. D. 93 at 208. Before purchasing a SculpSure device, prospective customers often communicate with one or more sales representatives through multiple face-to-face meetings, telephone calls, text messages and emails. See, e.g., D. 83-15 at 4-5; D. 83-16 at 7-8; D. 93 at 213, 215. Cynosure also publishes promotional literature and videos about SculpSure and has collaborated with a public relations and marketing company to host events where celebrities and key opinion leaders promote SculpSure. See D. 66-3 at 14, 19; D. 66-48; D. 66-49.

         From 2015 to 2016, the scale by which operators would measure patient feedback during SculpSure treatments changed several times. D. 65 ¶¶ 44-50. As of January 2015, Cynosure envisioned that operators would measure a patient's response to SculpSure using a “patient pain” scale (ranging from one to ten), D. 65 ¶ 44, but by September 2015, all references to “pain” and “sensation” had been removed in favor of a “zone score, ” D. 65 ¶¶ 48-50. A SculpSure operator's goal is to “maintain a client Zone Score of 4, ” which is considered the “Fat Destruction Zone.” D. 63-5 at 66. By November 2016, Cynosure had updated the description of Zone Four in its Clinical Reference Guide from “[l]onger peaks for moderate deep warmth and cooling” to the current description of “[p]rickling, pinching, pressure, longer peaks of moderate deep heat and cooling.” D. 65 ¶¶ 88, 96.

         In February 2016, Cynosure's introduced a multiple-treatment-rather than a one-time treatment-protocol known as “Treat to Complete.” D. 111 at 35 ¶ 47; D. 83-12 at 7. According to Cynosure, after Cynosure introduced “Treat to Complete, ” the messaging by various sales representatives about how many treatments were required for SculpSure still varied “throughout the United States, ” because there were “pockets of areas [where] . . . people [were] better at staying on top of information than others.” D. 83-12 at 7. Cynosure sometimes received feedback about sales representatives “setting false expectations with patients and physicians.” D. 65 ¶ 99. As late as May of 2017, Cynosure received feedback that sales representatives were telling SculpSure customers that they could “set the patient up with the SculpSure and then leave the room for 25 minutes” and noted that “[a]lthough this is possible . . . it is not how [Cynosure] recommend[s] to treat.” D. 65 ¶ 101.

         B. Purchase Agreements

         Each Plaintiff purchased a SculpSure device from Cynosure by signing a purchase agreement from Cynosure. D. 57 ¶ 5; D. 111 at 41 ¶ 69. These purchase agreements provide, in a paragraph above the signature line, that “by signing below, the Customer . . . is entering into a binding agreement . . . and accepts all of the terms and conditions as stated in this document (including the following page(s)).” D. 57 ¶ 6; D. 111 at 3-4 ¶ 6. The second page states in capitalized letters that:

(A) THE OBLIGATIONS OF CYNOSURE UNDER THIS WARRANTY ARE LIMITED, IN ITS EXCLUSIVE OPTION, TO REPAIR OR REPLACE PARTS AND MATERIALS WHICH PROVE TO BE DEFECTIVE.
(B) THE FOREGOING WARRANTIES ARE THE SOLE AND EXCLUSIVE WARRANTY OBLIGATIONS OF CYNOSURE, AND THE REMEDY PROVIDED ABOVE IS IN LIEU OF ANY AND ALL OTHER REMEDIES. THERE ARE NO OTHER AGREEMENTS, GUARANTEES, OR WARRANTIES, ORAL, WRITTEN, EXPRESSED, IMPLIED, OR STATUTORY, INCLUDING, WITHOUT LIMITATION, WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. CYNOSURE SHALL NOT BE LIABLE FOR LOST PROFITS OR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES DUE TO ANY CAUSE WHATSOEVER EVEN IF ADVISED AS TO THE POSSIBILITY OF SUCH DAMAGES. THE CUSTOMER AGREES THAT CYNOSURE'S LIABILITY IS SO LIMITED.

D. 57 ¶ 8; D. 111 at 4-5 ¶ 8. The second page also contains a choice-of-law provision that states that “[the] Agreement shall be governed by and construed under the substantive laws of the Commonwealth of Massachusetts. The Customer agrees to submit all disputes arising out of, or relating to, this Agreement to a court in Boston, Massachusetts.” D. 111 at 41 ¶ 71; D. 117 at 65 ¶ 71.

         C. Plaintiffs

         1. Plastic Surgery Associates, S.C.

         Plaintiff Plastic Surgery Associates, SC (“PSA”) provides cosmetic treatments, plastic surgery and skin care to its patients in Wisconsin. D. 57 ¶ 63; D. 111 at 15 ¶ 63. Christopher Hussussian, one of the owners of PSA, signed a purchase agreement for SculpSure on behalf of PSA on November 23, 2015. D. 57 ¶ 65; D. 111 at 15 ¶¶ 65. Prior to signing the agreement, Hussussian and George Korkos, the founder of PSA, read the agreement, including the warranty limitation section on the second page. D. 57 ¶ 67; D. 111 at 15 ¶ 67.

         In October 2015, Hussussian attended a meeting of the American Society of Plastic Surgeons (“ASPS”) in Boston, Massachusetts, where he learned about SculpSure and was told it would provide results “equivalent to [a competitor's product]” and a “comfortable patient.” D. 57 ¶ 68; D. 111 at 15 ¶ 68. Hussussian was the only member of PSA to attend the ASPS meeting. D. 57 ¶ 69; D. 111 at 16 ¶ 69. At the meeting, Hussussian spoke to Cynosure representatives at their booth and observed a demonstration, but did not attend any presentations related to SculpSure. D. 57 ¶ 70; D. 111 at 16 ¶ 70.

         After the ASPS meeting, Hussussian returned to Wisconsin, where he discussed SculpSure with Korkos and they “decided to investigate possibly bringing [the device] into [their] practice.” D. 57 ¶ 71 (alteration in original); D. 111 at 16 ¶ 71. In November 2015, Hussussian, Korkos and other PSA personnel met with an Illinois-based Cynosure sales representative in Wisconsin, during which the representative displayed before and after photographs and discussed studies that had been done on SculpSure. D. 57 ¶¶ 72-73; D. 111 at 16 ¶¶ 72-73. After this in-person meeting, the sales representative had three or four phone conversations, multiple text messages and approximately ten email communications with Hussussian about SculpSure. D. 57 ¶ 74; D. 111 at 17 ¶ 74. Hussussian testified that he was told SculpSure required only one treatment and was a “hands-free” procedure. D. 65 ¶ 105. Hussussian also communicated with a doctor in New Jersey or New York who owned a SculpSure device about his clinical experiences with the device. D. 57 ¶ 76; D. 111 at 17 ¶ 76. Within PSA, Hussussian was “primarily responsible for the research” about SculpSure. D. 57 ¶ 78; D. 111 at 18 ¶ 78.

         Hussussian testified that if he had known Cynosure would change the SculpSure protocol from one treatment to multiple treatments, it would have affected PSA's decision to purchase SculpSure. D. 65 ¶ 106; D. 65-101 at 14. Hussussian also testified that PSA's local reputation was harmed after and by the purchase of the SculpSure device. D. 57 ¶ 79; D. 111 ¶ 79.

         2. Green Chrysalis Enterprise LLC (d/b/a The Face Place)

         Plaintiff The Face Place is a medical spa in Hurst, Texas. D. 57 ¶ 49; D. 111 at 12 ¶ 49; D. 65 ¶ 107. Donna Green, its founder and owner, signed a purchase agreement for SculpSure on behalf of The Face Place on February 29, 2016. D. 57 ¶¶ 50-52; D. 111 at 12 ¶¶ 50-52. Green testified that the version of the purchase agreement she signed had only one page and did not include the page with the warranty limitations. D. 56-19 at 11. Green has only the first page in her records. D. 111 at 41 ¶ 72; D. 117 at 65 ¶ 72.

         The Face Place became interested in SculpSure when Lance Baird, a Cynosure sales representative based in Arizona, visited The Face Place office in Texas in December 2015. D. 57 ¶¶ 56, 59; D. 111 at 13-14 ¶¶ 56, 59. Green relied upon statements made during two in-person meetings in Texas, one phone call and one email with Baird in deciding to purchase SculpSure and did nothing else to learn about SculpSure before purchasing it. D. 57 ¶¶ 56-57, 60-61; D. 111 at 13-14 ¶¶ 56-57, 60-61. Green testified that she was told SculpSure required only one treatment, would be “painless” or a “warm tingling sensation” and would be “hands-free.” D. 65 ¶ 108; D. 65-103 at 4. Green also testified that if she had known Cynosure would change the SculpSure protocol from one treatment to multiple treatments, it would have changed The Face Place's decision to purchase SculpSure. D. 65 ¶ 109. Finally, Green testified that The Face Place's local reputation was harmed after and by the purchase of the SculpSure device. D. 57 ¶ 79; D. 111 at 18 ¶ 79. No personnel from The Face Place went to Massachusetts at any time in connection with the purchase of SculpSure. D. 57 ¶ 62; D. 111 at 14 ¶ 62.

         3. Renew Skin & Laser Centers, LLC (d/b/a Dermacare)

         Plaintiff Dermacare is a medical spa located in Virginia. D. 57 ¶ 22; D. 111 at 7 ¶ 22. Leon Garber, its owner, signed a purchase agreement for SculpSure on behalf of Dermacare on December 22, 2015. D. 57 ¶¶ 23-25; D. 111 at 7-8 ¶¶ 23-25. Garber does not recall whether he read the contract for SculpSure but believes that, based on his normal practices, he would have read it and wanted to make sure he understood what it said. D. 57 ¶ 27; D. 111 at 8 ¶ 27. The version of the purchase agreement that Dermacare possesses only contains the first page. D. 111 at 42 ¶ 74; D. 117 at 66 ¶ 74.

         Garber learned about SculpSure in the fall of 2015 when a colleague in Florida told him about it and subsequently emailed with him about it. D. 57 ¶¶ 28-29; D. 111 at 8 ¶¶ 28-29. Before purchasing SculpSure, Garber spoke to a Maryland-based sales representative from Cynosure and had an in-person meeting in Virginia with the same representative and one other who was based out of Washington, D.C. D. 57 ¶¶ 30-32; D. 111 at 9 ¶¶ 30-32. Garber was the only person from Dermacare communicating with Cynosure before his company purchased SculpSure and he relied upon the statements of the sales representatives and his Florida colleague in deciding to make the purchase. D. 57 ¶¶ 33-34; D. 111 at 9 ¶¶ 33-34. Garber testified that he was told that SculpSure would require only one treatment, be “uncomfortable but not painful” and that the operator could leave the room after the first five minutes. D. 65 ¶ 111; D. 65-105 at 10.[2] He also testified that Cynosure ...


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