United States District Court, E.D. Michigan, Southern Division
BEVERLY K. STOREY, and BRENDA L. CARL, Plaintiffs,
ATTENDS HEALTHCARE PRODUCTS, INC., Defendant.
OPINION AND ORDER GRANTING DEFENDANT'S RENEWED
MOTION TO DISMISS (DOC. 24)
CARAM STEEH UNITED STATES DISTRICT JUDGE
Attends Healthcare Products, Inc. sells a variety of adult
incontinence protection products, including extended-wear
incontinence products (Extended Wear Products). According to
named plaintiffs Beverly Storey and Brenda Carl (plaintiffs),
Defendant falsely represented to consumers that its Extended
Wear Products were safe for long-term use (or, alternatively,
failed to warn consumers that the Extended Wear Products were
not safe for long-term use). Plaintiffs allege that
contrary to Defendant's representations/omissions, the
Extended Wear Products were not safe for long-term use
because they “increased the risk of adverse health
consequences” like urinary tract infections (UTIs) and
skin irritation leading to skin ulcers. (Doc. 23, Pls.'
Sec. Am. Class Action Compl. & Jury Demand [hereinafter
SAC] ¶ 2). Plaintiffs state that they purchased the
Extended Wear Products in Arizona and Michigan and assert
numerous causes of action under Michigan and Arizona law: (1)
breach of implied warranty of merchantability, (2) breach of
implied warranty of fitness for particular purpose, (3)
violation of Michigan and Arizona consumer protection acts,
and (4) unjust enrichment. Although plaintiffs have not yet
moved for class certification, they ultimately aspire to
represent a nationwide class of consumers who have purchased
the Extended Wear Products throughout the United States.
Therefore, plaintiffs have also asserted the four causes of
action listed above under the laws of all fifty states and
the District of Columbia.
Court previously granted defendant's Renewed Motion to
Dismiss the First Amended Complaint (FAC) because “a
fundamental flaw permeate[d] all four counts.” (Doc. 21
at 3, Opinion and Order Granting Def's Renewed Mot.
Dismiss). The Court explained that “[a]ll four counts
are premised on Plaintiffs' contention that
Defendant's Extended Wear Products are not safe for long
term use. But Plaintiffs have utterly failed to allege
any facts that would render this contention
plausible, other than a conclusory allegation that use of the
Extended Wear Products” increases the risk of adverse
health consequences. Id.
now moves to dismiss the SAC. The Court heard oral argument
on this motion on November 9, 2016. The Court will grant
defendant's motion for the reasons explained below. In
short, all four counts of the SAC rely on the contention that
defendant's Extended Wear Products present a higher risk
of harm relative to other non-extended wear products, and
plaintiff has failed to state sufficiently particularized
facts to render this contention plausible. Instead, plaintiff
makes a series of conclusory allegations that are not
entitled to weight under the Rule 12(b)(6) standard, as
explicated by the Supreme Court in Bell Atlantic v.
Twombly, 550 U.S. 544 (2007) and Ashcroft v.
Iqbal, 556 U.S. 662 (2009).
party attacks a complaint pursuant to Federal Rule of Civil
Procedure 12(b)(6), the court must decide whether the
complaint states a claim upon which relief may be granted.
Generally speaking, the court must construe the complaint in
favor of the plaintiff, accept the allegations of the
complaint as true, and determine whether the plaintiff's
factual allegations present plausible claims. Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 554-56 (2007).
But there are some allegations that a court need not accept
as true and which are therefore insufficient to allow a
complaint to survive a Rule 12(b)(6) motion. In particular, a
court should not accept “legal conclusions cloaked as
fact.” Haddad v. Randall S. Miller Associates,
PC, 587 F. App'x 959, 963 (6th Cir. 2014)
(unpublished). Similarly, “naked assertions devoid of
further factual enhancement” and “unadorned,
the-defendant-unlawfully-harmed-me accusation[s]” are
insufficient to “state a claim to relief that is
plausible on its face.” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009). This means that to survive a Rule
12(b)(6) motion to dismiss, a complaint must provide
“more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action will not
do.” Ass'n of Cleveland Fire Fighters v. City
of Cleveland, 502 F.3d 545, 548 (6th Cir. 2007) (quoting
Twombly, 550 U.S. at 555) (citations and quotation
marks omitted). Even though a complaint need not contain
“detailed” factual allegations, its
“factual allegations must be enough to raise a right to
relief above the speculative level on the assumption that all
of the allegations in the complaint are true.”
alleges four counts, all of which were also featured in the
FAC. Thus, the Court has already analyzed the prima facie
elements of each claim in its prior opinion and order
dismissing the FAC. (Doc. 21). The Court will not reiterate
this law in full, but rather, focus on the elements that are
dispositive to this motion.
the four courts requires plaintiff to allege facts which
render plausible their contention that defendant's
Extended Wear Products present a higher risk of harm relative
to other non-extended wear products. In Count 1, a showing of
an increased risk of harm makes defendant's product
unmerchantable. Mich. Comp. Laws § 440.2314(2). In Count
2, a showing of increased risk of harm makes the product
unfit for its particular purpose of long-term use. Mich.
Comp. Laws § 440.2315. In Count 3, a showing of
increased risk of harm despite advertisements declaring
suitability of the products for long-term use demonstrates
that defendant misrepresented or omitted a material fact.
Mich. Comp. Laws § 445.903(1)(s), (y), (cc); Ariz. Rev.
Stat. § 44-1521(A). In Count 4, a showing of increased
risk of harm supports the claim that it would be inequitable
for defendant to retain the profits it received from
plaintiffs. Belle Isle Grill Corp v. City of
Detroit, 256 Mich.App. 463, 478 (2003); Freeman v.
Sorchych, 226 Ariz. 242, 251 (Ct. App. 2011). The Court
turns to the factual allegations present in the SAC to
determine whether they render plaintiffs' contention
argue the following series of allegations to support their
contention that defendant's products have an increased
risk of adverse health consequences. Defendant falsely
advertised that its product is safe for long-term use. Adult
incontinence protection products are not safe for long-term
use. Wearing a soiled product creates a risk of UTI and/or
skin ulcer by exposing consumers' urinary tract and skin
to contact with their waste. Multiple medical protocols
recommend changing adult incontinence protection products
after each incidence of voiding. Like other adult
incontinence protection products, defendant's product
includes this risk. However, unlike other adult incontinence
protection products, defendant's product is advertised
for use over longer time periods. This extended wear
increases the amount of time that a consumer's urinary
tract and skin are exposed to contact with waste. Thus,
defendant's product increases the risk of adverse health
consequences when used as advertised and/or directed compared
to other non-extended wear products.
references eight sources which provide medical evidence that
wearing a soiled adult incontinence protection product
creates a risk of UTI and/or skin ulcers. (Doc. 24-2; 24-3;
24-4; 27-7; 24-8; 24-11; 24-12; 24-13). But this evidence
does not specify what types of adult incontinence protection
products are associated with this risk. There are several
different types of adult incontinence protection products
including pads, liners, guards, briefs, and diapers. (Doc.
24-13 at 16; 24-7 at 2). Each type has different absorbing
properties and “ability to minimize or prevent exposure
to urine or feces.” (Doc. 24-13 at 16). Some products
are more “skin friendly” and include multiple
layers and/or breathable backings to reduce contact with
waste. (Doc. 24-13 at 16).
do not provide any evidence regarding the design of
defendant's product and whether it exposes consumers to
waste. While some adult incontinence protection products may
expose users to waste, creating a risk of UTI and skin
ulcers, defendant's product may be a skin friendly design
that does not pose this risk, much less an increased risk
from extended wear. Without such evidence, plaintiffs have
failed to plead sufficient facts to support their contention,
and therein have failed to state a claim upon which relief
may be granted under any of the four Counts.