The opinion of the court was delivered by: Surrick, District Judge.
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.
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.
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
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, ¶
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
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
A. Pennsylvania's Unfair Trade Practices and Consumer