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BALDERSTON v. MEDTRONIC SOFAMOR DANEK

June 11, 2001

RICHARD A. BALDERSTON, M.D.
V.
MEDTRONIC SOFAMOR DANEK, INC., AND ACROMED CORPORATION.



The opinion of the court was delivered by: Surrick, District Judge.

  MEMORANDUM AND ORDER

Plaintiff Richard A. Balderston, M.D., commenced this action by writ of summons in November 1999 in the Philadelphia Court of Common Pleas against Defendants Medtronic Sofamor Danek, Inc. ("Medtronic") and Acromed Corp. ("Acromed").*fn1 On February 28, 2000, Plaintiff filed a one-count Complaint in state court asserting a claim under Pennsylvania's Unfair Trade Practices and Consumer Protection Law ("UTPCPL"), 72 P.S. § 201-1, et seq. On April 4, 2000, Acromed removed the action to this Court on the basis of diversity of citizenship. Medtronic consented to the removal. (Doc. No. 1, Notice of Removal, Exhibit "B").

Presently before the Court are Defendants' Motion to Dismiss Plaintiffs Complaint pursuant to Fed.R.Civ.P. 12(b)(6) and supporting Memorandum (Doc. No. 2), Defendants' Reply (Doc. No. 9),*fn2 and Plaintiffs Response (Doc. No. 8) and Sur-Reply (Doc. No. 10) in opposition to Defendants' Motion. For the reasons that follow, the Court will grant Defendants' Motion and dismiss Plaintiffs Complaint.

I. BACKGROUND

Plaintiff is an orthopedic surgeon whose primary practice is in the field of spinal surgery. Medtronic and Acromed are manufacturers of a device commonly known as a "bone screw" or "pedicle screw." Plaintiff contends that Defendants violated the UTPCPL when they deceptively marketed the pedicle screws for use in spinal fusion surgery.

Plaintiffs Complaint alleges that in or about 1985, Plaintiff and other orthopedic surgeons began to study the use of pedicle screws in spinal fusion surgery, and ultimately determined that the future use of pedicle screws in such procedures would be safe and effective. Plaintiff alleges that Defendants knew of this determination and knew that Plaintiff and other orthopedic surgeons would convince the federal Food and Drug Administration ("FDA") to eventually approve the use of pedicle screws in spinal fusion surgery. Plaintiff asserts that in or about 1986 or 1987, knowing that the FDA had not approved pedicle screws for use in spinal fusion surgery, Defendants "began to market their pedicle screws to plaintiff for use by plaintiff on behalf of his patients for their personal use, and to other physicians for use in spinal fusion surgeries." Defendants marketed the pedicle screws knowing that Plaintiff and other doctors to whom they marketed would rely on Defendants to obtain FDA approval and would assume that the screws had been approved by the FDA for use in spinal fusion surgery. According to Plaintiff, Defendants adopted and carried out a scheme to deceptively market the pedicle screws to Plaintiff for the personal use of his patients and misrepresented the approval status of the screws "by concealing the material information regarding the FDA status of their pedicle screws from plaintiff and his patients until [Defendants] could obtain FDA approval."

Plaintiff contends that Defendants' practices were unfair or deceptive under sections 202-2(4)(ii) and (v) of the UTPCPL because they caused "a likelihood of confusion or of misunderstanding as to the . . . approval or certification of goods or services" and represented that "goods or services have sponsorship, approval . . . that they do not have."

Plaintiff also asserts that Defendants marketed the pedicle screws knowing that "if plaintiff knew that the FDA approval had not been obtained, the plaintiff would have a duty to disclose that information to his patients and that the plaintiff, as well as other surgeons, would delay the designation and purchase of the product for their patients." The Complaint specifically alleges that:

Based on the efforts and misrepresentations of the Acromed and [Medtronic] sales representatives, and as a result of the defendants' deceptive practices to promote the sale of the pedicle screw through plaintiff and other physicians, plaintiff, acting as an agent for his individual patients, was induced to and began to purchase for and use in surgeries for his practice pedicle screws from Acromed in 1986 or 1987 and from [Medtronic] in 1987 or 1988, which screws were designated for personal use by and inserted in plaintiffs patients in the spine fusion surgery he performed on those patients. (Complaint, ¶ 35).

Plaintiff avers that as a result of Defendants' deception, he was exposed to numerous lawsuits by patients claiming that they did not give informed consent for his use of the pedicle screws in their surgeries.*fn3 As a defendant in these lawsuits, he was required to provide uncompensated deposition testimony and to attend court proceedings, during which time he was unable to see patients or perform surgery. In addition, he was required to provide deposition and trial testimony in other cases in which he was not a defendant, but was the physician who performed the surgery at issue. Plaintiff alleges that as a result of Defendants' deceptive acts, he suffered an ascertainable loss of money and property including lost income, a decrease in his patient base, and damage to his professional reputation. Plaintiff's Complaint seeks actual and treble damages pursuant to 72 P.S. § 201-9.2, along with costs, attorneys' fees and prejudgment interest.

II. LEGAL STANDARD

When considering a motion to dismiss under Rule 12(b)(6), the court "must take all the well pleaded allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the pleadings, the plaintiff may be entitled to relief." Colburn v. Upper Darby Township, 838 F.2d 663, 665 (3d Cir. 1988), cert. denied, 489 U.S. 1065, 109 S.Ct. 1338, 103 L.Ed.2d 808 (1989). The court may use Plaintiffs memoranda opposing dismissal "to clarify allegations in the complaint whose meaning is unclear." Maio v. Aetna, Inc., 221 F.3d 472, 485 n. 12 (3d Cir. 2000), citing, Pegram v. Herdrich, 530 U.S. 211, 230 n. 10, 120 S.Ct. 2143, 147 L.Ed.2d 164 (2000). A motion to dismiss may be granted only if the court finds that Plaintiff can prove no set of facts in support of his claim which would entitle him to relief. See Conley v. Gibson, 355 U.S. 41, 45, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957).

III. DISCUSSION

A. Pennsylvania's Unfair Trade Practices and Consumer ...

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