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Advanced Laparoscopic Surgery, P.C. v. Cynosure, Inc.

United States District Court, E.D. Michigan, Southern Division

May 23, 2019

CYNOSURE, INC., Defendant.



         Before the court is Defendant's motion to dismiss Plaintiff's amended complaint. The court heard oral argument on May 20, 2019, and took the matter under advisement. For the reasons stated below, Defendant's motion is denied.


         Plaintiff Advanced Laparoscopic Surgery, P.C. (“ALS”), is a medical practice in Troy, Michigan, that specializes in surgery for weight loss, hernia, reflux, and gallbladder conditions. Plaintiff is run by David M. Chengelis, M.D., a board-certified surgeon. Defendant Cynosure, Inc., develops and markets medical devices.

         In the summer of 2018, Cynosure approached ALS to pitch its SculpSure device, which was marketed as a painless fat-reducing procedure. Doc. 9 at ¶¶ 24-25. Cynosure's representative told Dr. Chengelis that SculpSure offered a one-time, twenty-five-minute procedure that would reduce fat by 24%. Id. Cynosure's representative stated that Cynosure “had a robust marketing program that would drive patient leads to ALS.” Id. at ¶ 26. The representative also told Dr. Chengelis that ALS would be the only practice “in the area” with a SculpSure device. Id. at ¶ 27. According to Cynosure, the device would “pay for itself quickly because SculpSure would provide 4-5 leads per month and that within six months, ALS would want an additional SculpSure device.” Id. at ¶ 28.

         On July 13, 2018, ALS purchased a SculpSure device for $175, 750. ALS attached the purchase agreement, a one-page document, to the complaint. See Doc. 9 at ¶ 30.

         ALS alleges that after it received the SculpSure device, “interest in the procedure was absolutely non-existent.” Id. at ¶ 32. ALS contends that Cynosure never hosted a SculpSure “kick-off party” at ALS as promised, nor did it direct patients to ALS. Id. at ¶¶ 33-34. ALS further alleges that Cynosure sold SculpSure devices to at least eight medical practices in area communities such as Berkley, Birmingham, Troy, and Southfield. Id. at ¶ 35.

         Dr. Chengelis and members of his staff tested the SculpSure by undergoing the procedure. Dr. Chengelis found the procedure to be “excruciatingly painful, ” as did his staff members. Doc. 9 at ¶¶ 37-39. ALS alleges that no one who underwent the SculpSure procedure experienced any fat loss. Id. at ¶ 42. Given the level of pain he experienced, as well as the lack of results, Dr. Chengelis alleges that he cannot ethically recommend that his patients undergo the SculpSure procedure. Id. at ¶ 43. ALS sought to return the SculpSure device and obtain a refund, but Cynosure refused.

         ALS filed its complaint against Cynosure in state court on December 7, 2018. Cynosure removed the case based upon diversity jurisdiction. In its complaint, ALS alleges the following causes of action: Count I, breach of express and implied warranty; Count II, revocation of acceptance; and Count III, fraud in the inducement. Doc. 9 (amended complaint). Cynosure seeks dismissal of ALS's amended complaint pursuant to Federal Rule of Civil Procedure 12(b)(6).


         I. Standard of Review

         To survive a motion to dismiss, the plaintiff must allege facts that, if accepted as true, are sufficient “to raise a right to relief above the speculative level” and to “state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). See also Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949-50 (2009). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. at 1949. See also Hensley Manuf. v. Propride, Inc., 579 F.3d 603, 609 (6th Cir. 2009).

         II. Breach of Warranty and Revocation of Acceptance

         Cynosure contends that ALS's breach of warranty and revocation of acceptance claims must fail because Cynosure disclaimed all warranties in the purchase agreement. See M.C.L. § 440.2316. Under Michigan law, a seller may disclaim implied warranties if the disclaimer is in writing and is conspicuous. Id. A buyer may revoke acceptance of a “unit whose nonconformity substantially impairs its value to him.” M.C.L. § 440.2608. Revocation of acceptance is a remedy for breach of warranty ...

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