United States District Court, D. Minnesota
Vikram Bhatia, D.D.S., et al. on behalf of themselves and all others similarly situated, Plaintiffs,
3M Company, Defendant.
M. Williams, Esq., Daniel E. Gustafson, Esq., Daniel C.
Hedlund, Esq., David A. Goodwin, Esq., and Eric S. Taubel,
Esq., Gustafson Gluek PLLC; and Korey A. Nelson, Esq., Warren
T. Burns, Esq., and William B. Thompson, Esq., Burns Charest
LLP, co-lead counsel for Plaintiffs.
J. Pizzirusso, Esq., Hausfeld LLP, Plaintiffs' Executive
C. Gudmundson, Esq., Zimmerman Reed, PLLP; Charles D.
Gabriel, Esq., Chalmers Pak & Burch, LLC; Edward Anthony
Wallace, Esq., Wexler Wallace LLP; Jordan M. Lewis, Esq.,
Jordan Lewis, P.A.; Joseph S. Sauder, Esq., McCune Wright
LLP; Paul K. Scarlato, Esq., Goldman Scarlato & Penny,
P.C.; William M. Audet, Esq., Audet & Partners, LLP; and
Yvonne M. Flaherty, Esq., Lockridge Grindal Nauen PLLP,
Plaintiff's Executive Committee.
L. Rosca, Esq., Peiffer Rosca Wolf Abdullah Carr & Kane;
Amanda M. Williams, Esq., Daniel E. Gustafson, Esq., Daniel
C. Hedlund, Esq., David A. Goodwin, Esq., and Eric S. Taubel,
Esq., Gustafson Gluek PLLC; Bradley A. Winters, Esq., David
S. Corwin, Esq., and Vicki L. Little, Esq., Sher Corwin
Winters LLC; Bryan L. Bleichner, Esq., Chestnut Cambronne PA;
Bryce Daniel Riddle, Esq., Zimmerman Reed, LLP; Charles D.
Gabriel, Esq., Chalmers Pak & Burch, LLC; Daniel H.
Charest, Esq., Korey A. Nelson, Esq., William B. Thompson,
Esq., and Warren T. Burns, Esq., Burns Charest LLP; Edward
Anthony Wallace, Esq., Wexler Wallace LLP; Garrett D.
Blanchfield, Jr., Esq., and Roberta A. Yard, Esq., Reinhardt
Wendorf & Blanchfield; James J. Pizzirusso, Esq., and
Katie Rose Beran, Esq., Hausfeld LLP; Jeffrey D. Bores, Esq.,
Chestnut Cambronne, PA; John R. Parker, Jr., Esq., Cutter
Law, P.C.; Joseph G. Sauder, Esq., McCune Wright LLP; Katrina
Carroll, Esq., and Kyle Alan Shamberg, Esq., Lite DePalma
Greenberg LLC; Ling Y. Kuang, Esq., and William M. Audet,
Esq., Audet & Partners, LLP; Marc H. Edelson, Esq.,
Edelson & Associates, LLC; Mark K. Yarnoff, Esq., The
Kehoe Law Firm; and Paul K. Scarlato, Esq., Goldman Scarlato
& Penny, P.C., counsel for individual Plaintiffs.
Reilly, Esq., Tyler A. Young, Esq., and Wendy J. Wildung,
Esq., Faegre Baker Daniels LLP, counsel for Defendant.
MEMORANDUM OPINION AND ORDER
DONOVAN W. FRANK UNITED STATES DISTRICT JUDGE
matter is before the Court on a Partial Motion to Dismiss and
Strike Plaintiffs' Consolidated Amended Complaint (the
“Amended Complaint”) brought by Defendant 3M
Company (“3M” or “Defendant”) (Doc.
No. 87). For the reasons set forth below, the Court grants in
part and denies in part the motion.
case involves a 3M product, the Lava Ultimate CAD/CAM Dental
Restorative (“Lava Ultimate”). Lava Ultimate is a
product designed for dentists to use in making customized
dental restorations, such as veneers, inlays, onlays, and
crowns. A dental crown is a tooth-shaped cap that completely
covers a tooth or a dental implant. (Am. Compl. ¶ 55.) A
crown can be made from Lava Ultimate with a computer-aided
design and computer-aided manufacturing machine
(“CAD/CAM”). (Id. ¶ 60.) A dentist
uses the CAD/CAM machine to take a digital image of the
patient's tooth and mouth and then mill the Lava Ultimate
dental block into a customized crown. (Id.) This
process allows the procedure to take place in a single office
January 2011, the Food and Drug Administration
(“FDA”) approved Lava Ultimate as a Class II
medical device for indicated uses of “inlays, onlays,
veneers, and full crown restorations, including crowns on
implants.” (Id. ¶¶ 69, 71-72.) 3M
then released Lava Ultimate into the market. (Id.
¶ 73.) Plaintiffs allege that 3M marketed Lava Ultimate
as, for example, especially suitable for crowns,
fracture-resistant, durable, aesthetically pleasing,
convenient, and more economical. (Id. ¶¶
73-85.) In addition, 3M represented that Lava Ultimate could
be used for permanent, adhesive, single-tooth restorations,
including crowns. (Id. ¶ 91.)
action, Plaintiffs, who are all dentists or dental practices,
allege that crowns made using Lava Ultimate material suffer
from an inherent defect, namely that they have a propensity
to “debond” from teeth at higher rates than other
crown material. Plaintiffs contend that Lava Ultimate loses
its adhesive properties after being exposed to conditions
normally present in patients' mouths. (Id.
¶ 88.) Plaintiffs also argue that they have shouldered
the costs associated with the defective crowns.
ultimately removed Lava Ultimate from the market for use in
crowns (id. ¶ 96), but it denies any inherent
defect in the product. Instead, 3M contends that the product
worked well for all but a small percentage of dentists. On
June 12, 2015, 3M sent a letter to dentists stating:
“[3M] is removing the crown indication for Lava
Ultimate CAD/CAM Restorative Product because crowns are
debonding at a higher-than anticipated rate.”
(Id.) 3M sent the following warning:
“IMPORTANT: Do not use Lava Ultimate
restorative for any type of crown because there exists a
potential for debonding.” (Id.
(emphasis in original).) The FDA classified 3M's letter
as a Class II recall, which is defined as: “a situation
in which use of, or exposure to, a violative product may
cause temporary or medically reversible adverse health
consequences or where the probability of serious adverse
health consequences is remote.” (Id. ¶
filed their Amended Complaint, seeking a putative nationwide
class action or, in the alternative, thirteen putative
statewide subclasses of dentists and dental practices who
purchased Lava Ultimate and used it to apply dental crowns
between January 1, 2011 and June 12, 2015. In the Amended
Complaint, Plaintiffs bring roughly 70 separate claims for
statutory fraud, breach of express and implied warranties,
unjust enrichment, and common-law fraud under 13 states'
statutory schemes, as well as a claim under the federal
Magnuson-Moss Warranty Act.
general, Plaintiffs allege that they: purchased Lava Ultimate
blocks and seated them for dental crowns (id.
¶¶ 11-49); purchased Lava Ultimate after having
received and reviewed various marketing materials touting
Lava Ultimate's use in crowns (id. & ¶
86); relied on 3M's representations about Lava
Ultimate's suitability for crowns (id.
¶¶ 11-49); reported crowns that debonded to either
3M or a 3M sales representative (id.); and suffered
injury by repairing or replacing the crowns (id.
¶¶ 99-102). Plaintiffs seek compensatory damages
for the repair or replacement costs of Lava Ultimate-based
crowns and for the alleged loss to business reputation and
practice, disgorgement of profits, statutory penalties, an
injunction from “continuing to sell, market, or
distribute Lava products for use in crowns, ” punitive
damages, and attorney fees and costs. (See generally
Am. Compl. and Prayer for Relief.)
allege, among other things, that 3M breached an express
warranty. 3M acknowledges that Lava Ultimate products came
with an express warranty. Specifically, 3M points to a
ten-year express warranty that covers Lava Ultimate-based
restorations, including crowns, and that disclaims other
express or implied warranties. 3M insists that any dispute
between dentists and 3M over the performance of Lava Ultimate
is governed by the express warranty and that Plaintiffs'
other remaining legal theories are red
herrings. In support, 3M points to the following
“10 Year Limited Warranty”:
Limited Warranty and Limited Remedy 3M ESPE
warrants for 10 years from date of placement that
restorations made from Lava™ Ultimate CAD/CAM
Restorative will not fracture if fabricated using a 3M ESPE
recommended milling machine in strict compliance with
approved indications and instructions for use. 3M ESPE makes
no other warranties including, but not limited to, any
implied warranty of merchantability or fitness for a
(Doc. No. 91 (“Wildung Decl.”) ¶ 2, Ex. A
(at Doc. No. 93); see also Am. Compl. ¶ 78
(referencing a “10-year warranty”).) 3M's
webpages, which are cited in the Amended Complaint, also
reference a warranty. (See Am. Compl. ¶ 76 n.3;
¶ 80 n.8; and ¶ 85 n.12; Doc. No. 114 (“2d
Wildung Decl.”) ¶¶ 4, 5, 6 & Exs. C, D,
E.) In addition, 3M submits that the following text was
contained in the original Instruction for Use for 3M's
10 Year Limited Warranty
3M ESPE Lava Ultimate CAD/CAM Restorative
Limited Warranty and Limited Remedy:
3M ESPE warrants for 10 years from date of placement that
restorations made from Lava Ultimate CAD/CAM restorative will
not break if fabricated using a 3M ESPE recommended milling
machine in strict compliance with approved indications and
instructions for use. 3M ESPE makes no other warranties
including, but not limited to, any implied warranty of
merchantability or fitness for a particular purpose.
3M ESPE's sole obligation and the customers' sole
remedy in the event of any breakage of the restoration shall
be limited to the replacement of the Lava Ultimate block used
to fabricate the milled restoration, or at 3M ESPE's
option, reimbursement of Lava Ultimate block purchase price.
This warranty does not cover breakage resulting from accident
Limitation of Liability
Except where prohibited by law, 3M ESPE will not be liable
for any loss or damages arising from this product, whether
direct, indirect, incidental or consequential, regardless of
the theory asserted, including warranty, contract, negligence
or strict liability.
(2d Wildung Decl. ¶ 3, Ex. B.)
moves to dismiss Plaintiffs' implied-warranty, unjust
enrichment, fraud and related statutory claims under Federal
Rule of Civil Procedure 12(b)(6) and to strike
Plaintiffs' punitive-damages allegations under Federal
Rule of Civil Procedure 12(f).
deciding a motion to dismiss pursuant to Rule 12(b)(6), a
court assumes all facts in the complaint to be true and
construes all reasonable inferences from those facts in the
light most favorable to the complainant. Morton v.
Becker, 793 F.2d 185, 187 (8th Cir. 1986). In doing so,
however, a court need not accept as true wholly conclusory
allegations, Hanten v. Sch. Dist. of Riverview
Gardens, 183 F.3d 799, 805 (8th Cir. 1999), or legal
conclusions drawn by the pleader from the facts alleged,
Westcott v. City of Omaha, 901 F.2d 1486, 1488 (8th
Cir. 1990). A court may consider the complaint, matters of
public record, orders, materials embraced by the complaint,
and exhibits attached to the complaint in deciding a motion
to dismiss under Rule 12(b)(6). Porous Media Corp. v.
Pall Corp., 186 F.3d 1077, 1079 (8th Cir. 1999).
survive a motion to dismiss, a complaint must contain
“enough facts to state a claim to relief that is
plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 545 (2007). Although a complaint
need not contain “detailed factual allegations, ”
it must contain facts with enough specificity “to raise
a right to relief above the speculative level.”
Id. at 555. As the United States Supreme Court
reiterated, “[t]hreadbare recitals of the elements of a
cause of action, supported by mere conclusory statements,
” will not pass muster under Twombly. Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (citing
Twombly, 550 U.S. at 555). In sum, this standard
“calls for enough fact[s] to raise a reasonable
expectation that discovery will reveal evidence of [the
claim].” Twombly, 550 U.S. at 556.
addition to the pleading standard explained by the Supreme
Court in Twombly and Iqbal, Federal Rule of
Civil Procedure 9(b) requires “particularity”
when pleading “fraud or mistake.” Fed.R.Civ.P.
9(b). “Malice, intent, knowledge, and other conditions
of a person's mind may be alleged generally.”
Id. The purpose of Rule 9(b) is to provide
defendants with sufficient notice of the allegations so that
they may be able to respond specifically “to
potentially damaging allegations of immoral or criminal
conduct.” Abels v. Farmers Commodities Corp.,
259 F.3d 910, 920 (8th Cir. 2001). The rule must be read in
harmony with the principles of notice pleading. BJC
Health Sys. v. Columbia Cas. Co., 478 F.3d 908, 917 (8th
Cir. 2007) (citation omitted).
satisfy Rule 9(b)'s requirement that the circumstances
constituting alleged fraud be stated with particularity,
“the complaint must plead the ‘who, what, where,
when, and how' of the alleged fraud.” Drobnak
v. Andersen Corp., 561 F.3d 778, 783 (8th Cir. 2009)
(citation omitted); see also Parnes v. Gateway 2000,
Inc., 122 F.3d 539, 549-50 (8th Cir. 1997). The level of
particularity depends upon the nature of the case and the
relationship between the parties. BJC Health Sys.,
478 F.3d at 917. Where, for example, a plaintiff alleges a
systematic practice of fraudulent activities or
representations over an extended period of time, the
plaintiff need not allege the specific details of every
fraudulent act, but must still plead some representative
examples of the allegedly fraudulent conduct with sufficient
particularity. See Allstate Ins. Co. v. Linea Latina De
Accidentes, Inc., 781 F.Supp.2d 837, 846 (D. Minn. 2011)
(finding allegations regarding fraudulently-submitted
insurance claims sufficiently particular where plaintiffs
identified each claim that was allegedly fraudulent, the
claim number, and the date of the claim). “Conclusory
allegations that a defendant's conduct was fraudulent and
deceptive are not sufficient to satisfy the rule.”
Schaller Tel. Co. v. Golden Sky Sys., Inc., 298 F.3d
736, 746 (8th Cir. 2002) (citation omitted).
9(b) pleading requirements apply to all claims premised on
fraud, including “claims of false advertising,
deceptive trade practices, unlawful trade practices, and
consumer fraud.” Select Comfort Corp. v. Sleep
Better Store, LLC, 796 F.Supp.2d 981, 983 (D. Minn.
2011); see also 5A Charles Alan Wright et al.,
Federal Practice & Procedure § 1297 (3d ed. April
2017 update) (“Even when a plaintiff is not making a
fraud claim, courts will require particularity in the
pleading if the cause of action is premised on fraudulent
the Court may strike from a pleading any
“impertinent” matter. Fed. R. Civ. P 12(f). This
includes an improperly pleaded claim for punitive damages.
See Engele v. ...