United States District Court, D. Massachusetts
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,
CYNOSURE, INC., Defendant. VITA 4 LIFE, INC., Plaintiffs,
CYNOSURE, INC., Defendant.
MEMORANDUM AND ORDER
J. Casper United States District Judge.
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”) 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.
Standard of Review
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).
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).
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
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.
SculpSure Development and Sales
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
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.
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.
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.
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.
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.
Plastic Surgery Associates, S.C.
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.
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.
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.
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.
Green Chrysalis Enterprise LLC (d/b/a The Face Place)
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.
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.
Renew Skin & Laser Centers, LLC (d/b/a Dermacare)
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.
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. He also testified that