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Hildebrand v. Dentsply International

January 25, 2010

CAROLE N. HILDEBRAND, ET. AL., PLAINTIFFS,
v.
DENTSPLY INTERNATIONAL, INC., DEFENDANT.



The opinion of the court was delivered by: Jones II, J.

MEMORANDUM

Contending that named Plaintiffs Dr. Carole N. Hildebrand ("Dr. Hildebrand") and Dr. Robert A. Jaffin ("Dr. Jaffin") practice dentistry in a corporate capacity rather than individually, Defendant Dentsply International, Inc. ("Dentsply") has moved to dismiss Dr. Hildebrand and Dr. Jaffin for lack of standing to bring claims or serve as class representatives in the above-captioned matter. Plaintiffs oppose the Motion on the grounds that Dentsply has long known that Drs. Hildebrand and Jaffin are suing not as individuals but on behalf of their respective periodontal practices. In addition, Plaintiffs have moved for leave to file an amended Complaint, in order to substitute the periodontal practices of Drs. Hildebrand and Jaffin as named Plaintiffs. Presently before the Court is Dentsply's Motion to Dismiss for Lack of Standing (Dkt. No. 63) ("Motion"), Plaintiffs' Opposition thereto and Countermotion for Leave to File an Amended Complaint (Dkt. No. 69) ("Countermotion"), Dentsply's Opposition to Plaintiffs' Countermotion (Dkt. No. 70) ("Dentsply Opp."), and Plaintiffs' Reply in support of their Countermotion (Dkt. No. 71) ("Pls.' Reply"). For the reasons set forth below, Dentsply's Motion to Dismiss will be granted and Plaintiffs' Countermotion will be denied.

In addition, as consequences of these decisions, Counts I and II will be dismissed as to the putative Pennsylvania periodontal class members and as to the putative New Jersey class members; Count III will be dismissed in its entirety; and Dentsply's Motion to Dismiss or for Judgment on the Pleadings on Count II (Negligent Design) as to New Jersey Plaintiffs and Count III (New Jersey Consumer Fraud Act) in Its Entirety Based on New Controlling Authority (Dkt. No. 87) will be denied as moot.

II. BACKGROUND AND FACTS

To the extent that the merits of the pending Motion and Countermotion hinge upon the procedural background of the action, the Court takes this opportunity to set forth the basic history of the case, lengthy and long-standing as it is. This purported class action for breach of warranty and negligent design relates to alleged defects in the Cavitron ultra scaler, a tool which generates a pressured, pulsating water stream through a handpiece at the end of a flexible tube and is used by dental professionals to remove calculus and tartar from teeth, as well as by periodontists to debride subgingival tooth, root and bone surfaces (the "Cavitron").*fn1 Amended Complaint (Dkt. No. 29) ("Am. Compl.") ¶ 20. Dentsply manufactures, markets and sells various versions and models of the Cavitron ultrasonic scaler and distributes them for sale nationwide, including in New Jersey and Pennsylvania. Am. Compl. ¶ 6. On December 12, 2006, Drs. Hildebrand and Jaffin brought this action on behalf of themselves and a putative class against Dentsply,*fn2 claiming that the Cavitron's internal tubing "was hospitable to the formation of biofilm, which created a risk of transmitting pathogens to patients during routine dental prophylaxis and periodontal procedures." Am. Compl. ¶ 47. According to Plaintiffs, "[u]nder all circumstances, the Cavitron was and is unsafe for patient use without the purchase of expensive additional or substitute equipment or systems." Id. This defect, allegedly "known to Dentsply but not disclosed to plaintiffs or plaintiff class members," led Drs. Hildebrand and Jaffin to file claims for breach of warranty and negligent design on behalf of all putative class members. Am. Compl. ¶¶ 42-58.*fn3 In addition, they brought a claim for violation of the New Jersey Consumer Fraud Act, N.J.S.A. §§ 56:8-1, et seq., on behalf of the proposed New Jersey class members. Am. Compl. ¶¶ 59-67. The case was assigned at that time to the Honorable R. Barclay Surrick.

After an initial pretrial conference, the Court issued a scheduling order which held, in part, that the Plaintiffs were free to amend their Complaint to add new parties no later than April 23, 2007 (Dkt. No. 26), a deadline which was extended to May 7, 2007 upon Plaintiffs' unopposed motion (Dkt. No. 28). Plaintiffs then filed their Amended Complaint on May 7, 2007, adding Dr. Mitchell Goldman and Dr. W. Scott Barron as named Plaintiffs and putative class representatives.

On July 30, 2007, Judge Surrick ratified the parties' stipulation to withdraw Dr. Barron and to substitute Dr. Robert P. Forte (Dkt. No. 35). That same day, Plaintiffs moved to certify a class of "all dentists, periodontists, dental and periodontal practices, and dental and periodontal schools and institutions (a) who are citizens of the State of New Jersey or Commonwealth of Pennsylvania, respectively, (b) who purchased Cavitron ultrasonic scalers during the time period from January 1, 1997 to the date of the trial, and c) who were using a public water source for their Cavitrons at the time of installation." Memorandum of Law in Support of Motion of the Plaintiffs for Class Certification (Dkt. No. 36) at 1.*fn4

On August 22, 2007, Judge Surrick granted Plaintiffs' unopposed motion to withdraw Dr. Forte as a named Plaintiff and putative class member (Dkt. No. 40). Following a series of discovery disputes, most of which have since been resolved,*fn5 Dentsply filed this Motion to Dismiss Dr. Hildebrand and Dr. Jaffin for Lack of Standing on January 14, 2008. In addition, on July 31, 2008, Dentsply filed a Motion to Dismiss or for Judgment on the Pleadings on Count II (Negligent Design) as to New Jersey Plaintiffs and Count III (New Jersey Consumer Fraud Act) in its Entirety Based on New Controlling Authority (Dkt. No. 87).*fn6 On April 28, 2009, this case was reassigned from Judge Surrick to the Honorable C. Darnell Jones II for all further proceedings (Dkt. No. 96).

For jurisdictional purposes, the Court notes that Dr. Hildebrand is a periodontist residing in Philadelphia County, Pennsylvania and is licensed by the Commonwealth of Pennsylvania to practice and practices dentistry and periodontics in Philadelphia, Pennsylvania. Am. Compl. ¶ 1. Dr. Jaffin is a periodontist residing in Bergen County, New Jersey and is licensed by the State of New Jersey to practice and practices dentistry and periodontics in Hackensack, New Jersey. Am. Compl. ¶ 2. Dr. Goldman is a dentist residing in Montgomery County, Pennsylvania and is licensed by the Commonwealth of Pennsylvania to practice and practices dentistry in Cheltenham, Pennsylvania. Am. Compl. ¶ 3. Drs. Hildebrand, Jaffin and Goldman all purchased Cavitrons. Am. Compl. ¶ 1-3. Dentsply is a Delaware corporation doing business in the United States, including in New Jersey and Pennsylvania, with its principal place of business in York, Pennsylvania. Am. Compl. ¶ 5. Plaintiffs allege that the matter in controversy exceeds $5,000,000; as such, the Court maintains diversity jurisdiction over this matter pursuant to 28 U.S.C. § 1332(d)(2).

III. Dentsply's Motion to Dismiss

A. Legal Standard

Although Dentsply does not cite to any specific Rule, the Court considers a motion to dismiss for lack of standing under Federal Rule of Civil Procedure 12(b)(1). Ballentine v. United States, 486 F.3d 806, 810 (3d Cir. 2007). "When considering a motion to dismiss for lack of standing, the trial court must accept as true all material allegations in the plaintiff's complaint." Blunt v. Lower Merion School Dist., 559 F. Supp. 2d 548, 565 (E.D. Pa. 2008) (citing Warth v. Seldin, 422 U.S. 490, 501 (1975)). On a motion to dismiss for standing, the plaintiff "'bears the burden of establishing' the elements of standing." Ballentine, 486 F.3d at 806 (citing FOCUS v. Allegheny County Court of Common Pleas, 75 F.3d 834, 838 (3d Cir. 1996)). However, "general factual allegations of injury resulting from the defendant's conduct may suffice." Id. (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992)).*fn7

B. Discussion

Dentsply argues that because Drs. Hildebrand and Jaffin practice dentistry in a corporate capacity rather than as individuals, they lack standing to bring their claims or serve as class representatives. Motion at 1. Dr. Hildebrand is the sole member of Center City Periodontics, P.C., a Pennsylvania professional corporation for which she has practiced since 1984; Dr. Jaffin is one of three members of Affiliated Periodontists of North Jersey, P.A., a New Jersey professional association for which he has practiced since 1976. Id. According to Dentsply:

each corporate entity (and not the periodontist who filed this suit in his or her individual capacity) is the actual litigant seeking damages in this case. Having chosen to do business in the corporate form, these periodontists cannot sue as individuals for alleged damages incurred ...


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