(4) common law fraud, and (5) breach of express and implied warranty. (3) violation of California's Unfair Competition Law ("UCL"), Cal. (2) violation of California's Consumers Legal Remedies Act ("CLRA"), Cal.
(TAC ¶¶ 4, 26.)īased on Breg's alleged misrepresentations and omissions, Plaintiffs' Third Amended Complaint asserts claims for (1) violation of California's False Advertising Law ("FAL"), Cal.
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Plaintiffs allege that hundreds of personal injury actions have been filed against Breg, primarily in California state court, and that Breg is aware of more than 300 injuries resulting from use of the PC 500. Plaintiff Rigoberto Vindiola was dismissed from this case on December 17, 2015.
None of the Plaintiffs suffered bodily injury in connection with their use of the PC 500, but they allege that they never would have purchased, rented, or used the device had they known about the risks associated with continuous use. ¶¶ 25, 31.) Plaintiffs allege that Defendants have known about these risks since introducing the device into commerce yet have refused to warn physicians and consumers.
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¶ 3.) Specifically, Plaintiffs allege that using the PC 500 in accordance with the Use Instruction-that is, continuous use between 45 and 55 degrees Fahrenheit-poses a risk of serious bodily injury, including frostbite and permanent damage to skin and nerve tissue. (TAC 5-9.) Plaintiffs allege that Defendants misrepresented the benefits and concealed the risks associated with using the PC 500 from prescribing physicians and consumers alike.
Named Plaintiffs Stacey Lucas, Tarek Albaba, David Gamma, and Sarah Fisher (collectively, "Plaintiffs") are consumers who purchased or rented the PC 500 following surgery. Over time, Breg has supplemented the Use Instruction with additional information and warnings, but the Use Instruction itself has remained largely unchanged in both form and substance. ¶ 28.) Continuous use for purpose of the Use Instruction is defined as 20 minutes or longer. Since placing the PC 500 on the market, Breg has included with the device a "Use Instruction" that states: "Desired temperature is typically between 45 to 55 degrees Fahrenheit for continuous use and below 45 degrees Fahrenheit for sessions of 20 minutes or less." ( Id. In 2012, Breg renamed the PC 500 the Polar Care Glacier. ¶ 28, 29.)ĭefendants Gary Losse and Mark Howard are former directors of Breg who allegedly played a key role in developing the PC 500. Users set the device to a desired temperature and place the pad on the site of their injury to reduce pain and swelling. (Third Amended Complaint ("TAC") ¶ 23.) The PC 500 is a portable, motorized device-similar in appearance to a small ice cooler-that circulates ice cold water through a pad. Since 1992, Breg has marketed its PC 500 as a prescription-only device particularly suited for orthopedic patients recovering from surgery. BACKGROUNDĭefendant Breg is a California corporation that markets and sells a variety of cold therapy devices throughout the United States. For the reasons that follow, the Court GRANTS IN PART and DENIES IN PART Defendants' motion for summary judgment and DENIES Plaintiffs' motion for class certification. The Court finds the motions suitable for disposition on the papers submitted and without oral argument. 76.) Both motions have been fully briefed. 55.) Defendants oppose and move for summary judgment. Plaintiffs assert claims for violations of California's consumer protection laws, common law fraud, and breach of warranty, and now move to certify a nationwide class and California subclass of consumers who purchased or rented the product. This case arises out of alleged misrepresentations and omissions made by Defendant Breg in connection with the marketing and sale of its Polar Care 500 cold therapy device ("PC 500"). Cynthia Bashant United States District Judge ORDER: (1) GRANTING IN PART AND DENYING IN PART PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT AND (2) DENYING DEFENDANT'S MOTION FOR CLASS CERTIFICATION
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