Terasia Provost–Daar et al. v. Merz North America, Inc. fka Merz Aesthetics, Inc. et al. (2014)

MEMORANDUM OF DECISION IN RE DEFENDANT MERZ NORTH AMERICA, INC. F/K/A MERZ AESTHETICS, INC.'S MOTION TO STRIKE COUNT TWO OF PLAINTIFFS' FIRST AMENDED COMPLAINT (# 125)

Pursuant to Connecticut Practice Book § 10–39, defendant Merz North America, Inc. f/k/a Merz Aesthetics, Inc. (“Merz”) moves to strike count two of plaintiffs' first amended complaint, which complaint is dated September 27, 2013.   Count Two alleges a violation of the Connecticut Unfair Trade Practices Act (“CUTPA”) against Merz. The defendant asserts that Count Two violates the exclusivity provision of the Connecticut Product Liability Act, Connecticut General Statutes §§ 52–572m to 52–572r (“CPLA”).   Defendant also claims that Count Two fails to allege the requisite commercial relationship between plaintiffs and Merz.

The plaintiff objects and argues that CUTPA falls outside the scope of the product liability act and is not barred.

Both parties submitted a memorandum, and argument on the motion was heard on November 18, 2013.

Nature of the Proceedings

The plaintiffs, Terasia Provost–Daar and Bradley Daar filed a four-count amended complaint in this action on September 27, 2013, against the defendants, Merz Aesthetics, Merz Pharmaceuticals, LLC, Merz Incorporated, Zachary Klett, and Klett Oculoplastic Surgery P.C. The amended complaint alleges the following facts:  The defendant Merz North America, Inc., f/k/a Merz Aesthetics, Inc.¹ is the manufacturer and distributor of injectable cosmetic gels, including RADIESSE (cosmetic gel), a trademarked volumizing derma filler marketed to be injected into the skin on the face to counter visible wrinkles, facial folds, and signs of skin aging.

On January 17, 2011, Provost–Daar visited Dr. Klett and Klett Oculoplastic Surgery P.C. for an initial consultation to discuss facial wrinkles and skin rejuvenation to slow signs of aging on her face.   Dr. Klett recommended injecting the cosmetic gel into Provost–Daar's face because it was his favorite and longest lasting derma filler gel and would immediately fill in skin wrinkles and lost volume.   Dr. Klett offered to inject Provost–Daar during the initial consultation and she consented to the procedure.

Dr. Klett proceeded to inject Provost–Daar's face with the cosmetic gel that had been shipped to him from the defendant.   Provost–Daar left Klett Oculoplastic Surgery P.C. approximately 45 minutes after her arrival and was in pain and discomfort with a swollen red face.   Four days later, Provost–Daar began to feel worse.   The pain, tingling, swelling, and redness on her face did not dissipate.   On February 16, 2011, she was taken to Yale New Haven Hospital and treated by infectious disease doctors.   The doctors took a CT scan of her face and saw the cosmetic gel deposited throughout her face.   They suspected that bacteria had grown into a biofilm commonly associated with infectious growth on implants placed in the human body.   The doctors then advised her that the biofilm adhered to the cosmetic gel and that the only way to get rid of it was to surgically remove the cosmetic gel.

On May 13, 2011, Provost–Daar had facial surgery to remove beads of the cosmetic gel that were deeply imbedded in the skin tissue.   While much of the cosmetic gel was extracted, several beads of the gel had to remain in her face to avoid risk of permanent nerve damage and deformity that would be caused by excision.   The extracted beads of the cosmetic gel were lab tested and revealed staphylococcus and skin flora.   Her symptoms improved after the surgery.   Less than a year later, however, she suffered a relapse that required hospitalization and heavy intravenous antibiotics.   Her treating physicians have recommended lifelong antibiotic treatment.

In count one of the amended complaint, Provost–Daar alleges a product defect against the defendant for the design, manufacture, inspection, testing, warnings, and distribution of a dangerous product.   Specifically, she alleges that the defendant is liable under the strict products liability doctrine, pursuant to the Connecticut Products Liability Act (CPLA), General Statutes § 52–572m et seq.²  In count two, the plaintiffs allege a violation of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42–110 et seq.,³ against the defendant in that the defendant's deliberate misrepresentation about the safety risks of the cosmetic gel unfairly and deceptively maintained the price of its products, including the cosmetic gel, at an inflated level not otherwise obtainable and caused Provost–Daar and the consuming public generally to pay more for the cosmetic gel than was warranted.

On October 9, 2013, the defendant filed a motion to strike, accompanied by a memorandum of law, count two of the amended complaint.   The plaintiffs filed an objection to the motion to strike on October 28, 2013.   The matter was heard at short calendar on November 18, 2013.

DISCUSSION

“The purpose of a motion to strike is to contest ․ the legal sufficiency of the allegations of any complaint ․ to state a claim upon which relief can be granted.”  (Internal quotation marks omitted.)  Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003).  “A motion to strike challenges the legal sufficiency of a pleading, and, consequently, requires no factual findings by the trial court.”  (Internal quotation marks omitted.)   Simms v. Seaman, 308 Conn. 523, 529, 69 A.3d 880 (2013).  “In ruling on a motion to strike, the court is limited to the facts alleged in the complaint.”  (Internal quotation marks omitted.)  Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997).

“[I]t is fundamental that in determining the sufficiency of a complaint challenged by a defendant's motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted ․ The role of the trial court in ruling on a motion to strike is to examine the [complaint], construed in favor of the [plaintiff], to determine whether the [pleading party has] stated a legally sufficient cause of action.”  (Citation omitted;  internal quotation marks omitted.)  Coe v. Board of Education, 301 Conn. 112, 116–17, 19 A.3d 640 (2011).  “[P]leadings are to be construed broadly and realistically, rather than narrowly and technically ․” (Internal quotation marks omitted.)  Downs v. Trias, 306 Conn. 81, 92, 49 A.3d 180 (2012).   Nevertheless, a motion to strike “does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings.”  (Emphasis omitted;  internal quotation marks omitted.)  Faulkner v. United Technologies Corp., supra, 240 Conn. 588.

The defendant argues that count two of the amended complaint is legally insufficient in that the CUTPA claim is barred by the exclusivity provision of the CPLA. Alternatively, the defendant argues that the plaintiffs have insufficiently alleged a commercial relationship to the defendant to sustain a CUTPA claim.   The plaintiffs counter that the CUTPA claim falls outside the scope of the CPLA and is not barred because the plaintiff has suffered a financial loss and that there was a commercial relationship between the parties.   Preliminarily, the court will address the defendant's claim that plaintiffs have insufficiently alleged a commercial relationship to the defendant to sustain a CUTPA claim.  “CUTPA has its own standing requirements ․ the act recognizes three categories of plaintiffs:  consumers, competitors, and other business persons affected by unfair or deceptive acts ․ [I]t strains credulity to conclude that CUTPA is so formless as to provide redress to any person, for any ascertainable harm, caused by any person in the conduct of any ‘trade’ or ‘commerce.’  ․ In describing the business relationship necessary for a plaintiff to have standing to assert a CUTPA claim, the cases indicate that a business person must have a direct commercial relationship with the defendant, or some other relationship with the defendant in a commercial market place, so that a nexus exists between this relationship and an ascertainable loss caused by the defendant's unfair or deceptive practices.”  (Citations omitted;  internal quotation marks omitted.)   Traylor v. Connecticut, Superior Court, judicial district of New London, Docket no.   CV13–5014624 (January 9, 2014, Devine, J.).

The plaintiff's revised complaint does sufficiently allege a nexus between the consumer relationship and the financial loss suffered by the plaintiff by paying a higher than warranted price for the product.

The dispositive issue is whether the plaintiffs' CUTPA claim falls within the scope of the exclusivity provision of CPLA. “In Gerrity v. R.J. Reynolds Tobacco Co., 263 Conn. 120, 126, 818 A.2d 769 (2003), [the Supreme Court] reiterated that the exclusivity provision of the [CPLA] makes it the exclusive means by which a party may secure a remedy for an injury caused by a defective product ․ The issue in this case, as in Gerrity, therefore, is whether the plaintiffs' CUTPA claim falls within the scope of the [CPLA]. If it does, then it is precluded and may not be asserted in conjunction with the [CPLA] claim.   If, however, the CUTPA claim falls outside the purview of the [CPLA], it may be asserted and the exclusivity provision will not serve as a bar.”  (Citation omitted;  internal quotation marks omitted.)  Hurley v. Heart Physicians, P.C., 278 Conn. 305, 324, 898 A.2d 777 (2006).

“[T]he legislature defined a [CPLA] claim to include all claims or actions brought for personal injury, death or property damage caused by the allegedly defective product ․ The legislature also provided that the damages are caused by the defective product if they arise from the manufacture, construction, design, formula, preparation, assembly, installation, testing, warnings, instructions, marketing, packaging or labeling of any product ․ In addition, a product liability claim is defined broadly to include, but not be limited to, all actions based on [s]trict liability in tort;  negligence;  breach of warranty, express or implied;  breach of or failure to discharge a duty to warn or instruct, whether negligent or innocent;  misrepresentation or nondisclosure, whether negligent or innocent ․ Finally, the legislature defined [h]arm for purposes of the act to include damage to property, including the product itself, and personal injuries including wrongful death.”   (Citations omitted;  internal quotation marks omitted.)  Id., 324–25.

“These definitions must be read together, with the understanding that the [CPLA] was designed in part to codify the common law of product liability, and in part to resolve, by legislative compromise, certain issues among the groups interested in the area of product liability.   The [CPLA], however, was not designed to eliminate claims that previously were understood to be outside the traditional scope of a claim for liability based on a defective product.   Given this contextual framework, [the Supreme Court] conclude[d] that a product liability claim under the [CPLA] is one that seeks to recover damages for personal injuries, including wrongful death, or for property damages, including damage to the product itself, caused by the defective product.”  (Internal quotation marks omitted.)  Id., 325.

“Therefore, the language of the exclusivity provision makes clear that the [CPLA] was intended to serve as the exclusive remedy for a party who seeks recompense for those injuries caused by a product defect.   The language of the exclusivity provision, however, suggests that it was not designed to serve as a bar to additional claims, including one brought under CUTPA, either for an injury not caused by the defective product, or if the party is not pursuing a claim for personal injury, death or property damage.”  (Internal quotation marks omitted.)  Id., 325–26.  “[O]ther statutory remedies are not to be viewed as, per se, falling within the exclusivity provision's bar, solely because they rest in part on the sale of a product.   If, however, a party brings a CUTPA claim and seeks to use that statutory scheme when the claim is, in reality, one falling within the scope of the [CPLA], then the exclusivity provision applies.   This is true ․ not because the legislature enacted the [CPLA] with a mind to preclude all CUTPA causes of action, but because the purported CUTPA claim would be revealed to be nothing more than a [CPLA] claim dressed in the robes of CUTPA.”  Gerrity v. R.J. Reynolds Tobacco Co., supra, 263 Conn. 129.

“In [Gerrity v. R.J. Reynolds Tobacco Co., supra, 263 Conn. 129], the court allowed a CUTPA claim in conjunction with a CPLA claim, which the plaintiff alleged that the defendants' deliberate misrepresentations caused the plaintiff to suffer a financial loss ․ The plaintiff in Gerrity alleged in its complaint that [Reynolds'] deliberate misrepresentations about the health hazards of tobacco use, including its false assertions that there is a bona fide scientific controversy about whether tobacco use [caused] disease was further intended to affect decisions by consumers to buy tobacco products and thereby affect the price of those products ․ Also alleged in the complaint was that the deliberate misrepresentations about the addictive nature of nicotine and about its deliberate undertakings to manipulate the level of nicotine in its tobacco products, including its Winston and Salem cigarettes, was further intended to affect decisions of consumers to buy tobacco products thereby to affect the price of those products.   As a result of [the] defendants' deliberate misrepresentations as aforesaid, [Reynolds] unfairly and deceptively maintained the price of its tobacco products ․ at an inflated level, not otherwise obtainable and caused [the decedent] and the consuming public generally to pay more for the cigarettes they purchased ․ Finally, the plaintiff was further injured as a result of [Reynolds'] wrongful scheme in that she was caused to pay more for the cigarettes she purchased than was warranted by virtue of [Reynolds'] illegal youth targeting, misrepresentations about health hazards and addictive nature of its cigarettes [and] manipulation of the nicotine in its cigarettes which resulted in financial loss to the plaintiff.”  (Citations omitted;  internal quotation marks omitted.)   Dibello v. C.B. Fleet Holding Co., Inc., Superior Court, judicial district of Danbury, Docket No. CV–05–5000276–S, (August 31, 2007, Mintz, J.).

In Dibello v. C.B. Fleet Holding Co., Inc., the court stated that “[t]he plaintiff failed to plead sufficient facts required by Gerrity to allege that the defendants' deliberate misrepresentations [of the cleansing regimen product that harmed the plaintiff] caused the plaintiff to suffer a financial loss.   Specifically, in count four, the plaintiff merely alleged that the defendants failed to warn the plaintiff of the potential harms from the proper use of the product and, as a result, the plaintiff was forced to pay a higher price for the product.   Further, the plaintiff's allegations that the defendants promoted the ․ cleansing regimen without warning of its potential hazards, does not rise to the level of deliberate misrepresentations required under the Gerrity standard.   As it stands, count four is ‘nothing more than a [CPLA] claim dressed in the robes of CUTPA,’ thereby precluded by the exclusivity provision of the CPLA ․ Thus, the plaintiff has not pleaded sufficient facts in regard to any deliberate misrepresentations by the defendants that resulted in a financial loss to the plaintiff in order to establish a CUTPA claim that is separate and distinct from the plaintiff's CPLA claim.”  (Citation omitted;  footnote omitted.)  Dibello v. C.B. Fleet Holding Co., Inc., supra, Superior Court, Docket No. CV–05–5000276–S.   Accordingly, the court held that “the plaintiff did not allege sufficient facts to constitute a cause of action in CUTPA to fall outside of the exclusivity provision of the CPLA.” Id.

The plaintiffs' CUTPA claim in count two incorporates the CPLA claim in count one, which alleges that the “[cosmetic gel] injected into [Provost–Daar's] face leaked from the syringe exposing the gel to environmental bacteria which was then injected into [Provost–Daar's] face ․ As a direct and proximate result of the dangerous defects ․ [Provost–Daar] suffered serious injuries ․” In count two, the plaintiffs allege that the defendant's “deliberate misrepresentations about the safety risks of [the cosmetic gel] unfairly and deceptively maintained the price of its products, including [the cosmetic gel] at an inflated level not otherwise obtainable and caused [Provost–Daar] and the consuming general public to pay more for [the cosmetic gel] than was warranted ․” As a result of the defendant's actions, “[Provost–Daar] suffered and will continue to suffer ascertainable financial loss.”

“A motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged.”  Bridgeport Harbour Place I, LLC v. Ganim, 303 Conn. 205, 213, 32 A.3d 296 (2011).

The court concludes that Count Two is legally insufficient in that the plaintiffs have not pleaded sufficient facts in regard to any alleged deliberate misrepresentations by the defendant that resulted in a financial loss to the plaintiffs that is separate from the CPLA claim.   In particular, the allegations that the defendant misrepresented the safety risk of the cosmetic gel stem from Provost–Daar's CPLA claim that the allegedly defective product caused her injuries.   Unlike the plaintiff in Gerrity, who alleged that she suffered a financial injury that was separate from her personal injuries due to the defendants' deliberate misrepresentations about the health hazards and addictive nature of cigarettes, the defendants' illegal youth targeting, and the defendants' false assertion that there was a scientific controversy about whether tobacco use causes disease, the plaintiffs in this case have not sufficiently alleged any specific actions on the part of the defendant that would amount to a deliberate misrepresentation and that caused Provost–Daar a financial injury that is separate and distinct from her personal injury.

Additionally, the court in Dibello found that the plaintiff's allegation that the defendants promoted the cleansing regimen product without warning of its potential hazards did not rise to the level of deliberate misrepresentations as required under the Gerrity standard.   Similarly here, the plaintiffs' allegation that the defendant misrepresented the safety of the cosmetic gel “with knowledge that [the cosmetic gel] ․ can only be removed by surgical excision if it causes an infection via bacterial biofilm ․” does not rise to the level of deliberate misrepresentaion as required under Gerrity.   Furthermore, Count Two seeks to recover damages for both past and future financial losses.   Provost–Daar has already incurred a financial loss by paying for the allegedly defective cosmetic gel.   Any future financial loss would stem from her ongoing personal injuries to pay for medical treatment.

For the foregoing reasons, the defendant's motion to strike Count Two is granted.

Vitale, J.

FOOTNOTES

FN1. The defendant Merz Aesthetics, Inc. filed this motion to strike and will, hereafter, be referred to as the defendant..  FN1. The defendant Merz Aesthetics, Inc. filed this motion to strike and will, hereafter, be referred to as the defendant.

FN2. General Statutes § 52–572m provides in relevant part that a “ ‘[p]roduct liability claim’ includes all claims or actions brought for personal injury, death or property damage caused by the manufacture, construction, design, formula, preparation, assembly, installation, testing, warnings, instructions, marketing, packaging or labeling of any product.  ‘Product liability claim’ shall include, but is not limited to, all actions based on the following theories:  Strict liability in tort;  negligence;  breach of warranty, express or implied;  breach of or failure to discharge a duty to warn or instruct, whether negligent or innocent;  misrepresentation or nondisclosure, whether negligent or innocent.”.  FN2. General Statutes § 52–572m provides in relevant part that a “ ‘[p]roduct liability claim’ includes all claims or actions brought for personal injury, death or property damage caused by the manufacture, construction, design, formula, preparation, assembly, installation, testing, warnings, instructions, marketing, packaging or labeling of any product.  ‘Product liability claim’ shall include, but is not limited to, all actions based on the following theories:  Strict liability in tort;  negligence;  breach of warranty, express or implied;  breach of or failure to discharge a duty to warn or instruct, whether negligent or innocent;  misrepresentation or nondisclosure, whether negligent or innocent.”

FN3. General Statutes § 42–110b provides in relevant part that “[n]o person shall engage in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce.”.  FN3. General Statutes § 42–110b provides in relevant part that “[n]o person shall engage in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce.”

Vitale, Elpedio N., J.