Madison County Circuit Judge Dennis Ruth denied a combined motion to dismiss a dentist’s suit alleging dental crowns failed to perform properly.
Defendants 3M Company, Henry Schein Inc. and Tamela Dean filed a combined motion to dismiss on Dec. 29 through attorney Kate Middleton of Faegre Baker Daniels LLP in Chicago.
They argue that plaintiff Dr. Richard Boatman Jr.’s claim for breach of implied warranties should be dismissed because no vertical privity exists between 3M and the plaintiffs. Also, they allege 3M and Schein disclaimed any implied warranties.
They argue that Boatman’s claim for fraudulent misrepresentation should be dismissed because his “attempt to substantiate their fraud allegations with little more than legal and factual conclusions and, in doing so, fail to state a claim for fraud as a matter of law.”
Because Boatman’s fraud claim fails, his unjust-enrichment claim fails, the motion states.
They argue that Boatman’s claims for negligent misrepresentation fail because he “cannot recover for economic loss based solely on a theory of negligence,” and “an agent who breaches a duty owed only to her principal is not individually liable to a third party who suffers injuries from her breach.”
They argue that Boatman’s claims for intentional interference of business expectancy fail to allege essential elements.
“Plaintiffs have failed to identify any specific third-party business prospect, much less that Moving Defendants had knowledge of any particular third-party business prospect,” the motion states.
Lastly, they argue that Boatman’s claims for civil conspiracy fail because the plaintiff did not identify any relationship between the defendants beyond a traditional commercial relationship.
Ruth denied the motion on Feb. 10.
Boatman, doing business as Troy Family Dental, filed the complaint on Sept. 13 against 3M Company, D4D Technologies LLC, Schein and Dean.
Boatman alleges the defendants’ dental restorative and cement products were used to make and seat dental crowns. However, he claims the products failed to perform as advertised, represented and warranted.
Boatman alleges he suffered financial and reputation damages. He also claims the defendants’ products caused needless injury, pain, inconvenience and misery to his patients.
Boatman seeks a judgment in excess of $1 million, plus costs and other relief the court deems just.
He is represented by David Corwin and Bradley Winters of Sher Corwin Winters LLC in St. Louis.
Madison County Circuit Court case number 16-L-1296