Plastic Surgery Assocs., S.C. v. Cynosure, Inc.

• Decision Date: 07 August 2019
• Docket Number: Civil Action No. 17-11850-DJC, Civil Action No. 17-cv-11435-DJC
• Parties: 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.
• Court: U.S. District Court — District of Massachusetts

407 F.Supp.3d 59

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.

Civil Action No. 17-11850-DJC

Civil Action No. 17-cv-11435-DJC

United States District Court, D. Massachusetts.

Filed August 7, 2019

Daniel J. Kurowski, Pro Hac Vice, Emily Brown, Pro Hac Vice, Whitney K. Siehl, Pro Hac Vice, Jason A. Zweig, Pro Hac Vice, Whitney K. Siehl, Pro Hac Vice, Hagens Berman Sobol Shapiro LLP, Chicago, IL, Anthea Grivas, Pro Hac Vice Shelby Smith, Pro Hac Vice, Hagens Berman Sobol Shapiro LLP, Seattle, WA, Lauren G. Barnes, Hagens Berman Sobol Shapiro LLP, Cambridge, MA, for Plaintiffs.

Albert Bower, Pro Hac Vice, Eric Samore, Pro Hac Vice, Kathryn Long, Pro Hac Vice, Ronald Balfour, Pro Hac Vice, Yesha Sutaria Hoeppner, Pro Hac Vice, SmithAmundsen LLC, Chicago, IL, Anand Agneshwar, Pro Hac Vice, Kyle D. Gooch, Pro Hac Vice, Lori B. Leskin, Pro Hac Vice, Arnold & Porter Kaye Scholer LLP, New York, NY, Daniel Pariser, Pro Hac Vice, Jocelyn Wiesner, Pro Hac Vice, Arnold & Porter Kaye Scholer LLP, Washington, DC, Ben T. Clements, Michael J. Pineault, Clements & Pineault, LLP, Jessica S. Dormitzer, Ropes & Gray LLP, Boston, MA, Tamar Lanuza Hagopian, Lynnfield, MA, for Defendants.

MEMORANDUM AND ORDER

CASPER, 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. 1. 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, 117 S.Ct. 2231, 138 L.Ed.2d 689 (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, 106 S.Ct. 2548, 91 L.Ed.2d 265 (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, 106 S.Ct. 2505, 91 L.Ed.2d 202 (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, 106 S.Ct. 2505 ). 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 ...