attorney Michael E. Douglas Attorney at Law
  Personal Injury Attorney
  St. Paul Workers Compensation Lawyer work comp attorney
 > About Me
   :: My Commitment
   :: Our Community
 > Legal Practice Areas
  twin cities comsumer lawPersonal Injury
   :: Traffic Accidents
   :: Medical Malpractice
   :: Social Security Disability
   :: Premises Liability
   :: Wrongful Death
   :: Dog Bite
   :: Back/Spinal/Neck Injuries
   :: Whiplash
   :: Defective Medical Devices
   :: Defective Drugs
  Minnesota Personal InjuryWorkers Compensation
  St. Paul personal injuryConsumer Law
   :: Debt Collection
   :: Repossessions
   :: Foreclosures
   :: Loan, Credit, Banking
   :: Arbitration Agreements
   :: Deception and Fraud
   :: Auto Fraud / Lemon Law
   :: Warranties
   :: Predatory Lending
 > Contact Us
   :: Contact Us

Law Offices of Michael E. Douglas
P.O. Box 251551
Woodbury, Minnesota 55125-6551

 Saint Paul Lawyer


O'Neil v. Simplicity, Inc.: US District Court : TORT - no claim regarding unsafe product without injury; benefit-of-bargain claim fails

John ONeil and Jill ONeil, on behalf of
themselves and all others similarly situated,
Civ. No. 07-4070 (RHK/JJG)
Simplicity, Inc., and Graco Childrens
Products, Inc.,
Elizabeth C. Pritzker, Eric H. Gibbs, Geoffrey A. Munroe, Girard Gibbs LLP, San
Francisco, California, Charles C. Kelly, II, Amy Eskin, Nancy Hersh, Hersh & Hersh,
San Francisco, California, Renae D. Steiner, Lori A. Johnson, Heins Mills & Olson, PLC,
Minneapolis, Minnesota, Michael K. Johnson, Goldenberg & Johnson, PLLC,
Minneapolis, Minnesota, for Plaintiffs.
William K. Hill, Scott N. Wagner, Bilzin Sumberg Baena Price & Axelrod LLP, Miami,
Florida, Blake Shepard, Todd A. Noteboom, Leonard, Street and Deinard, PA,
Minneapolis, Minnesota, for Defendant Simplicity, Inc.
Joseph J. Krasovec, III, Heidi Dalenberg, Holly A. Podulka, Schiff Hardin LLP, Chicago,
Illinois, John Edward Connelly, Jesseca R.F. Cockson, Faegre & Benson LLP,
Minneapolis, Minnesota, for Defendant Graco Childrens Products, Inc.
This action arises out of a recall of childrens cribs by Defendant Simplicity, Inc.
(Simplicity). Plaintiffs John and Jill ONeil purchased a Simplicity crib in 2003, which
bears the name and logo of Defendant Graco Childrens Products, Inc. (Graco). The
crib was recalled in September 2007 due to problems with its drop side; this action was
commenced shortly thereafter, asserting a litany of claims. Simplicity and Graco now
move to dismiss. For the reasons set forth below, the Court will grant the Motions.
Simplicity has manufactured cribs since 1998. (Second Amended Complaint
(SAC) 9.) Simplicity sells its cribs under its own name and under those of several
licensees, including Graco. (Id. 10.) Many of Simplicitys cribs (including the crib at
issue here) include a drop side, which allows one side of the crib to be raised and
lowered to more easily place a child into (or remove a child from) the crib. (Id. 11.)
In 2003, a consumer filed a complaint with the Consumer Product Safety
Commission (CPSC) concerning the drop side of a Simplicity crib. (Id. 20.) In
February 2004, another consumer reported to the CPSC and Simplicity that the drop side
of a Simplicity crib had separated from the crib frame, creating a gap between the frame
and the drop side. Simplicity allegedly told this consumer that it was no big deal and
that there were no problems with the crib. (Id. 21.) Then, on April 11, 2005, a ninemonth-
old boy suffocated while sleeping in a Simplicity crib when he slipped into a gap
between the cribs drop side and its frame. (Id. 22.) The boys parents reported the
problem to the CPSC and sued Simplicity, which resolved the matter in a confidential
settlement. (Id.) The problem kept recurring, however; at least two more infants
suffocated while sleeping in Simplicity cribs due to gaps between the drop sides and the
cribs frames, and the CPSC received reports of at least 63 incidents with Simplicity
cribs, seven of which involved injuries suffered when infants became trapped between a
cribs frame and its drop side. (Id. 23-24.)
In 2007, the Chicago Tribune commenced an investigation into Simplicitys cribs
and shared the results of its investigation with the CPSC and with Simplicity and Graco.
(Id. 25.) On September 21, 2007, the cribs were recalled by the CPSC and Simplicity.
(Id.) As part of the recall, Simplicity is not accepting returns of the cribs. Rather, it is
offering to send new hardware (the Retrofit Kit), along with instructions explaining
how to install it, which can be used to immobilize the drop sides of the cribs. (Id. 30.)
This purported class action was originally filed by Amber Spitzer on September
24, 2007, three days after the recall was announced. Spitzer alleged that she had bought a
defective crib manufactured by Simplicity and bearing the Graco name and logo at a
Target store in April 2006. She named as Defendants Simplicity, Graco, and Target, and
asserted claims arising under contract law (breach of warranty, unjust enrichment) and
tort law (negligence). She also asserted claims under several Minnesota consumerprotection
statutes, alleging that the Defendants were aware of the defects in the cribs but
nevertheless continued to market them as safe. After Target and Simplicity moved to
dismiss, Spitzer moved for and was granted leave to file a Second Amended Complaint.1
The Second Amended Complaint differed greatly from the original Complaint the
ONeils took Spitzers place as the named plaintiffs, and Target was dismissed as a
The ONeils purchased an Aspen 3 in 1 crib manufactured by Simplicity and
bearing the Graco name and logo from a Target store in Virginia, Minnesota in 2003.
(Id. 33.) They purchased the crib for the use of their grandchildren during visits to their
1 Spitzer previously had filed an Amended Complaint, which dropped the negligence claim.
home. (Id.) The ONeils used the crib without problems until September 2007, when
they learned of the recall. (Id. 34.) They have stopped using the crib altogether, and
they have not ordered the Retrofit Kit because the crib is useless to them without a
functional drop side. Ms. ONeil cannot lift an infant up and over the side of the crib
without first lowering the drop side, so could not use the Crib with the retrofit kit
installed and the drop side immobilized. (Id. 35-36.)
Like Spitzer, the ONeils claim that Defendants were aware that their cribs were
unsafe but continued to market and sell them. They also claim that Defendants
unlawfully marketed their cribs as having a functional drop side when they knew that the
cribs could not safely function without the drop side immobilized. They assert eight
claims in the SAC: (1) declaratory judgment, seeking a judicial determination that the
cribs are defective and that Simplicity must repair or replace them with cribs having fully
functional drop sides; (2) violation of the Magnuson-Moss Warranty Act, 15 U.S.C.
2301 et seq. (MMWA); (3) breach of express warranty; (4) breach of the implied
warranty of merchantability; (5) violation of Minnesotas Deceptive Trade Practices Act
(DTPA), Minn. Stat. 325D.44; (6) violation of Minnesotas Consumer Fraud Act
(CFA), Minn. Stat. 325F.68; (7) violation of Minnesotas False Statement in
Advertising Act (FSAA), Minn. Stat. 325F.67; and (8) unjust enrichment. The
ONeils purport to represent a class of all persons in Minnesota who purchased a
Simplicity/Graco crib in several different crib lines manufactured by Simplicity. (Id.
37.) The class expressly excludes any individual who suffered a personal injury while
using an allegedly defective crib. (Id. 38.)
Simplicity and Graco now move to dismiss.2
The recent Supreme Court case of Bell Atlantic Co. v. Twombly, __ U.S. __, 127
S. Ct. 1955 (2007), sets forth the standard to be applied when evaluating a motion to
dismiss under Rule 12(b)(6). To avoid dismissal, a complaint must include enough facts
to state a claim to relief that is plausible on its face. Id. at 1974. Stated differently, a
plaintiff must plead sufficient facts to provide the grounds of his entitle[ment] to
relief, [which] requires more than labels and conclusions, and [for which] a formulaic
recitation of the elements of a cause of action will not do. Id. at 1964-65 (citation
omitted). Thus, a complaint cannot simply le[ave] open the possibility that a plaintiff
might later establish some set of undisclosed facts to support recovery. Id. at 1968
(citation omitted). Rather, the facts set forth in the complaint must be sufficient to
nudge the[] claims across the line from conceivable to plausible. Id. at 1974.
When reviewing a motion to dismiss, the complaint must be liberally construed,
assuming the facts alleged therein as true and drawing all reasonable inferences from
those facts in the plaintiffs favor. Id. at 1964-65. A complaint should not be dismissed
simply because a court is doubtful that the plaintiff will be able to prove all of the factual
allegations contained therein. Id. Accordingly, a well-pleaded complaint will survive a
2 Shortly before oral argument on the instant Motions, Simplicitys counsel informed the Court that (1) Simplicity
had defaulted under a secured-credit agreement with its largest creditor, (2) the creditor had effected a sale of
substantially all of Simplicitys assets, and (3) Simplicity has ceased all business operations. As a result, although
the Court concludes that the ONeils claims must be dismissed, it appears that they (and the class they purport to
represent) would be unlikely to recover from Simplicity even if their claims were able to survive Simplicitys and
Gracos Motions.
motion to dismiss even if it appears that a recovery is very remote and unlikely. Id. at
1965 (citation omitted).
Simplicity and Graco raise a host of arguments in support of their Motions, but the
Court need only address one, which it finds dispositive: have the ONeils asserted a
legally cognizable injury? The Court concludes that they have not.3
The crux of Defendants argument is that the ONeils crib has never
malfunctioned. There is no allegation in the SAC indicating that the ONeils crib has
ever had a problem with its drop side or that it has ever failed to work as intended; they
simply point to the fact that the crib has been recalled because some consumers owning
the same model (or similar models) have experienced drop-side problems. According to
Defendants, these facts bring this case within the line of no injury product-liability
cases where the plaintiff alleges a defect that could cause injury or might create a safety
hazard, but fails to allege any actual harm. (Simplicity Mem. at 7 (emphasis in
original).) In the absence of any such harm, Defendants argue that the ONeils cannot
state a claim under any legal theory advanced in the SAC.4
3 Although it raised several arguments in support of its Motion, Graco did not expressly move to dismiss on this
ground. Nevertheless, the Courts analysis applies with equal force with respect to Graco. Moreover, at the hearing
on the instant Motions, Graco made clear that it was adopting all of Simplicitys arguments, and the ONeils
responded to the no-cognizable-injury argument (at both the hearing and in their Motion papers) as if it had been
brought by both Simplicity and Graco.
4 The ONeils have nowhere argued that they need not prove legally cognizable damages as an element of each of
their claims, and hence they have conceded the point. Other than with respect to the declaratory-judgment claim and
the DTPA claim, the case law supports the ONeils implicit concession. See 15 U.S.C. 2310(d)(1) (MMWA
requires plaintiff to be damaged by the failure of a . . . warrantor); Duxbury v. Spex Feeds, Inc., 681 N.W.2d 380,
393 (Minn. Ct. App. 2004) (breach-of-warranty claim requires damages); LensCrafters, Inc. v. Vision World, Inc.,
943 F. Supp. 1481, 1491 (D. Minn. 1996) (Davis, J.) (claim under FSAA requires damages); Minn. Stat. 8.31,
subd. 3a (private actions for violation of CFA and FSAA require a person to be injured by a violation thereof);
Several cases have adopted the argument pressed by Defendants. For example, in
Rivera v. Wyeth-Ayerst Laboratories, 283 F.3d 315 (5th Cir. 2002), the plaintiff had
ingested Duract, a prescribed non-steroidal anti-inflammatory drug manufactured by the
defendant. Although the plaintiff had used Duract without problems, and although the
plaintiff had nowhere argued that Duract was ineffective as a pain killer or caused future
health consequences for users, she sued the defendant after it removed the drug from the
market due to reports of liver failures among some users. The class-action plaintiff
who, like the ONeils here, expressly disclaimed representing any individuals who had
suffered personal injuries from Duract alleged violations of the Texas Deceptive Trade
Practices Act and the implied warranty of merchantability, as well as a claim for unjust
enrichment. The district court certified the case as a class action under Federal Rule of
Civil Procedure 23, and the defendant took an interlocutory appeal of that decision to the
Fifth Circuit. The appellate court reversed and remanded with instructions to dismiss the
case because the plaintiff had not pleaded damages sufficient to support her claims:
Notably, the wrongs Rivera and the class allege are those suffered by other,
non-class member patients. The plaintiffs claim that Wyeth violated the
implied warranty of merchantability by selling a defective drug, but then
aver that the drug was not defective as to them. Similarly, the plaintiffs
Park-Lake Car Wash, Inc. v. Springer, 394 N.W.2d 505, 514 (Minn. Ct. App. 1986) (unjust enrichment requires
plaintiff to show defendant enriched himself at the expense of another).
As for the declaratory-judgment claim, which seeks a determination that Simplicity is obligated under its
Limited Warranty to repair or replace Class members unsafe and defective Cribs (SAC 50), the Court concludes
that the claim should be dismissed because it is duplicative of the breach-of-warranty claim. See, e.g., Alsager v.
Dist. Court of Polk County, Iowa (Juvenile Div.), 518 F.2d 1160, 1163 (8th Cir. 1975) (district courts have
discretion to decline to hear declaratory-judgment claims; claim should be entertained only when the judgment will
serve a useful purpose in clarifying and settling the legal relations in issue); Ticketmaster L.L.C. v. RMG Techs.,
Inc., 536 F. Supp. 2d 1191, 1199 (C.D. Cal. 2008) (dismissing as duplicative declaratory-judgment claim where
issues raised therein would be resolved in other claims alleged in case). And, with respect to the DTPA claim,
damages are not at issue because the sole statutory remedy for deceptive trade practices is injunctive relief.
Gardner v. First Am. Title Ins. Co., 296 F. Supp. 2d 1011, 1020 (D. Minn. 2003) (Kyle, J.) (citing Dennis Simmons
D.D.S., P.A. v. Modern Aero, Inc., 603 N.W.2d 336, 339 (Minn. Ct. App. 1999)).
claim Wyeth violated the DTPA by failing to issue warnings sufficient to
advise injured users, but then concede they were not among the injured.
Such wrongs cannot constitute an injury in fact.
283 F.3d at 320.5
Similarly, in Briehl v. General Motors Corp., 172 F.3d 623 (8th Cir. 1999), the
Eighth Circuit affirmed the dismissal of a multi-district litigation proceeding concerning
anti-lock brakes on General Motors cars. The Briehl plaintiffs alleged that their brakes
were defective because their brake pedals would fall completely to the floor in hard
braking, which caused drivers to release the pedals due to a perception of total brake
failure. The plaintiffs did not allege that the brakes were incapable of stopping their
vehicles in emergencies, nor did they allege that their brakes had actually caused any
accidents. Indeed, as in Rivera (and as in this case), the named plaintiffs did not seek to
represent any individuals who had sustained personal injuries or property damage as a
result of the alleged defect.
General Motors moved to dismiss, arguing that the plaintiffs had not suffered any
injuries sufficient to support their claims for breach of warranty, violations of various
state consumer-protection statutes, and fraudulent concealment and misrepresentation.
The district court granted that motion, and the Eighth Circuit affirmed, noting:
In this case, the Plaintiffs have not alleged that their ABS brakes have
malfunctioned or failed. In fact, the Plaintiffs affirmatively state that their
purported class excludes any claim for personal injury or property damage
caused by brake failure. The Plaintiffs ABS brakes have functioned
satisfactorily and at no time have the brakes exhibited a defect. Under each
of the theories the Plaintiffs invoke in the Original Complaint, damages
5 Riveras discussion of damages arose in the standing context, but the Court perceives no reason why its analysis is
not equally apt here.
constitutes an essential element of the cause of action. Where, as in this
case, a product performs satisfactorily and never exhibits an alleged defect,
no cause of action lies. Since the Plaintiffs have failed to allege any
manifest defect and their vehicles perform in a satisfactory manner, the
District Court was correct when it dismissed the Plaintiffs Original
172 F.3d at 628 (citations omitted). Numerous other courts have adopted this no injury
rationale and dismissed claims where a product defect was alleged to exist but had not
manifested itself in the plaintiffs products. See, e.g., Harrison v. Leviton Mfg. Co., No.
05-CV-0491, 2006 WL 2990524, at *4-7 (N.D. Okla. Oct. 19, 2006) (concerning
defective electrical outlets that allegedly could overheat and cause fires; Courts do not
allow consumers to bring claims against manufacturers for products that are perceived to
be harmful, but that have not actually cause[d] an identifiable injury.); Feinstein v.
Firestone Tire & Rubber Co., 535 F. Supp. 595, 602-03 (S.D.N.Y. 1982) (no claim under
MMWA where alleged tire defect had not manifested itself; Liability does not exist in a
vacuum; there must be a showing of some damage); Carey v. Select Comfort Corp., No.
27CV 04-15451, 2006 WL 871619, at *2-5 (Minn. Dist. Ct. Jan. 30, 2006) (involving
allegedly defective bed that trapped moisture and caused mold growth; court dismissed
plaintiffs claims for breach of express and implied warranties and violations of the
DTPA, CFA, and FSAA because no mold had grown on the plaintiffs bed).6
The ONeils attempt to evade these holdings by arguing that the crib they
purchased has a serious defect in that the original hardware sold with the crib renders it
unsafe for their grandchildren to sleep in. (Mem. in Oppn to Simplicity Mot. at 7-8.)
6 See also Briehl, 172 F.3d at 627-28 (collecting cases); Heindel v. Pfizer, Inc., 381 F. Supp. 2d 364, 379-81 (D.N.J.
2004); Williams v. Purdue Pharma Co., 297 F. Supp. 2d 171, 176 (D.D.C. 2003); In re Rezulin Prods. Liab. Litig.,
210 F.R.D. 61, 68 (S.D.N.Y. 2002).
This allegation parallels those made in Briehl (faulty brakes rendered cars unsafe),
Harrison (faulty outlets made home unsafe), Feinstein (defective tires rendered cars
unsafe), and the plethora of other no injury cases set forth above and decided by courts
across the country. It is simply not enough for a plaintiff to allege that a product defect
suffered by others renders his or her use of that same product unsafe; the plaintiff must
instead allege an actual manifestation of the defect that results in some injury in order to
state a cognizable claim for breach of warranty, unfair trade practices, or unjust
enrichment. Briehl, 172 F.3d at 628 (Where . . . a product performs satisfactorily and
never exhibits an alleged defect, no cause of action lies.); In re Air Bag Prods. Liab.
Litig., 7 F. Supp. 2d 792, 803-04 (E.D. La. 1998) (even where an alleged defect creates a
life-threatening condition, the absence of a manifestation of that defect causing injury
is so fundamental a deficiency in tort or implied warranty claims that such claims are
more appropriately dismissed than preserved).7
The ONeils apparently believe that the mere fact Simplicity has recalled the cribs,
based on others encountering problems, necessarily means that their crib has a manifest
defect. (See Mem. in Oppn to Simplicity Mot. at 6-7.) The Court does not agree with
7 The Court further notes that the defect in the ONeils crib is one of their own making. Simplicity has made a
Retrofit Kit available to them, but they have opted not to install it. And, there is no allegation in the SAC that the
Retrofit Kit would not completely fix the problem with their crib. The ONeils claim that they have alleged that
the retrofit hardware prevents their safe use of the crib because consumers cannot safely and conveniently lift
children over the full-height side of the crib once the retrofit kit is installed and in place. (Mem. in Oppn to
Simplicity Mot. at 8 (citing SAC 34-36).) A careful review of the cited paragraphs of the SAC, however, reveals
no such allegation.
The ONeils also assert that the Retrofit Kit replaces one defect with another: once the drop side is
immobilized, [the] crib[] [will] no longer function as represented because it will no longer include one of the main
components of its functionality. (Mem. in Oppn to Simplicity Mot. at 2.) Because the ONeils have opted not to
install the Retrofit Kit, however, they cannot assert a claim concerning the loss of drop-side functionality, nor would
they be adequate class representatives for individuals claiming such a defect.
that supposition. In Rivera, Harrison, and Feinstein, for example, persons other than the
plaintiffs had encountered problems with the products at issue. Yet, in each case the
court concluded that the plaintiff did not state a cognizable claim because the named
plaintiffs own product had not manifested any defect resulting in an actual injury.8 The
same is true here, where the ONeils have not alleged that they have encountered any
problems with their cribs functionality. That the crib has been recalled, therefore, does
not ipso facto mean that the crib has a manifest defect sufficient to permit their claims to
The ONeils next argue that they paid for a safe crib with a functioning drop side
and instead got a crib with a drop side that must be locked into place in order to render
the crib safe to use. (Mem. in Oppn to Simplicity Mot. at 8-12.) In other words, they
argue that they have suffered benefit-of-the-bargain damages that is, they were
damaged in an amount equal to the difference between what they bargained for (a safe
crib with a functioning drop side) and what they received (a crib without one). Although
this argument has some superficial appeal, the Court finds that it, too, is unpersuasive.9
It is true that some courts have recognized benefit-of-the-bargain damages as
sufficient to support deceptive-trade-practices and breach-of-warranty claims. For
example, in Coghlan v. Wellcraft Marine Corp., 240 F.3d 449 (5th Cir. 2001), the
plaintiffs had purchased a boat manufactured by the defendant. The plaintiffs
8 Notably, the drug at issue in Rivera had been recalled by the defendant.
9 Although it is not germane to the Courts resolution of the instant Motions, the Court notes that, by seeking
benefit-of-the-bargain damages, the ONeils likely have rendered their case inappropriate for class-action treatment.
In order to prove whether purchasers received the benefit of their bargains, individualized proof would be required
concerning a host of issues, including whether, and to what extent, each purchaser chose a crib solely due to its use
of a drop side, and the amount paid by each purchaser.
motivation for the purchase, in part, was the defendants advertising emphasizing that its
boats were made completely of fiberglass, which were (1) more durable than boats made
of a wood-fiberglass combination and (2) perceived to hold their value better. A few
months after the purchase, however, the plaintiffs discovered that their boat was actually
made of both wood and fiberglass. They sued the manufacturer, asserting inter alia
claims for violations of the MMWA, breach of implied warranty, unfair and deceptive
trade practices, and unjust enrichment. The defendant moved to dismiss certain of the
claims in the complaint, but the district court dismissed the entire complaint for failing to
allege any cognizable damages. The plaintiffs appealed.
The Fifth Circuit reversed. In the portion of its holding most pertinent here, the
court stated:
The key distinction between this case and a no-injury product[s] liability
suit is that the Coghlans claims are rooted in basic contract law rather than
the law of product[s] liability: the Coghlans assert they were promised one
thing but were given a different, less valuable thing. The core allegation in
a no-injury product[s] liability class action is essentially the same as in a
traditional products liability case: the defendants produced or sold a
defective product and/or failed to warn of the products dangers. The
wrongful act in a no-injury products suit is thus the placing of a
dangerous/defective product in the stream of commerce. In contrast, the
wrongful act alleged by the Coghlans is Wellcrafts failure to uphold its end
of their bargain and to deliver what was promised. The striking feature of a
typical no-injury class is that the plaintiffs have either not yet experienced a
malfunction because of the alleged defect or have experienced a
malfunction but not been harmed by it. Therefore, the plaintiffs in a noinjury
products liability case have not suffered any physical harm or out-ofpocket
economic loss. Here, the damages sought by the Coghlans are not
rooted in the alleged defect of the product as such, but in the fact that they
did not receive the benefit of their bargain.
240 F.3d at 455 n.4. Other courts have followed Coghlans approach and permitted
warranty and deceptive-trade-practices claims to proceed based on benefit-of-the-bargain
damages. See, e.g., In re Bridgestone/Firestone, Inc. Tires Prods. Liab. Litig., 155 F.
Supp. 2d 1069, 1102-03 (S.D. Ind. 2001); Microsoft Corp. v. Manning, 914 S.W.2d 602,
607-10 (Tex. App. 1995), abrogated on other grounds by Citizens Ins. Co. of Am. v.
Daccach, 217 S.W.3d 430 (Tex. 2007); Miller v. William Chevrolet/GEO, Inc., 762
N.E.2d 1, 10-11 (Ill. App. Ct. 2001).
Yet, this approach has not been universally adopted indeed, the Fifth Circuit
rejected this theory of damages (and distinguished Coghlan) in Rivera. Noting the
difference between contract-law and tort-law damages discussed in footnote 4 in
Coghlan, the Rivera court stated:
Even if we were to ignore the fact that plaintiffs have no contract, the
general principles they invoke do not help them. By plaintiffs own
admission, Rivera paid for an effective pain killer, and she received just
that the benefit of her bargain. . . . The confusion arises from the
plaintiffs attempt to recast their product liability claim in the language of
contract law. The wrongs they allege failure to warn and sale of a
defective product are products liability claims. Yet, the damages they
assert benefit of the bargain, out of pocket expenditures are contract law
damages. The plaintiffs apparently believe that if they keep oscillating
between tort and contract law claims, they can obscure the fact that they
have asserted no concrete injury. Such artful pleading, however, is not
enough to create an injury in fact.
283 F.3d at 320-21 (citations omitted); accord Carlson v. Gen. Motors Corp., 883 F.2d
287, 297-98 (4th Cir. 1989) (affirming dismissal of MMWA and breach-of-impliedwarranty
claims based on lost resale value of plaintiffs vehicles); Carey, 2006 WL
871619, at *3-5.
More importantly, the Eighth Circuit concluded in Briehl that benefit-of-thebargain
damages do not cut the mustard for the types of claims at issue here. In Briehl,
the plaintiffs claimed that due to the alleged defect, they had overpaid for their vehicles
when they purchased them. 172 F.3d at 626. The court concluded that such damages
were insufficient as a matter of law to plead a claim under any theory the Plaintiffs ha[d]
advanced, including claims for breach of express and implied warranties and deceptive
trade practices under several states laws. Id. at 629. The Court is obliged to follow
Briehl here.10
An additional flaw is evident in the ONeils benefit-of-the-bargain damages
theory. The purported benefit of the ONeils bargain was a crib with a functioning
drop side. However, they cannot complain that they received less than what they
bargained for that is, they cannot claim they received a crib without a functioning drop
side when their drop side has functioned without incident since it was purchased over
four years ago and they have opted not to install the Retrofit Kit to lock the drop side into
place. Simply put, the ONeils bargained for a crib with a functioning drop side, and that
is precisely what they received. [A] plaintiff who purchases a [crib] that never
malfunctions over its ordinary period of use cannot be said to have received less than
what he bargained for when he made the purchase. In re Canon Cameras Litig., 237
F.R.D. 357, 360 (S.D.N.Y. 2006). The ONeils benefit-of-the-bargain damages theory,
10 The ONeils assert that the plaintiffs in Briehl never alleged that [they] received less than they bargained for
(Mem. in Oppn to Simplicity Mot. at 7), but that assertion is inaccurate. The Briehl plaintiffs specifically
claim[ed] damages . . . for (1) lost resale value and (2) overpayment for the vehicles at the time of purchase. 172
F.3d at 626. While perhaps not explicitly stating that they had received less than they bargained for, the plaintiffs
alleged substantively the same thing by asserting that they overpaid as a result of the alleged defect.
therefore, does not aid their cause. And, having failed to allege any cognizable damages,
their claims falter.11
It could be argued that the lack of cognizable damages is not fatal to certain of the
ONeils claims specifically, the DTPA, CFA, and FSAA claims insofar as the
ONeils also seek injunctive relief on those claims. That is of no moment, however,
because the ONeils have not pleaded in the SAC any basis for an award of such relief.12
They argue that injunctive relief is proper to prevent future child injuries or deaths
(Mem. in Oppn to Simplicity Mot. at 26), but there are two flaws with this argument.
First, the ONeils have nowhere pleaded in the SAC that the allegedly defective cribs are
still being marketed or sold. Indeed, the SACs use of past tense in each of the ONeils
claims suggests that Defendants alleged misconduct is not ongoing. (See, e.g., SAC 81
(Defendants . . . made misleading or deceptive representations concerning the Cribs, and
concealed from or failed to disclose the fact that in order to be safe the consumer would
have to lose drop-side functionality.) (emphasis added); id. 91 (Defendants used
misrepresentations, misleading statements, and deceptive practices . . . .) (emphasis
11 Notably, the Court does not believe Briehl stands for the proposition that benefit-of-the-bargain damages are
never sufficient to state a claim under state consumer-protection statutes or for breach of warranty. For example,
imagine a situation in which a seller fraudulently misrepresents that an object is a diamond when it is actually glass.
The buyer in such a situation would have incurred only benefit-of-the-bargain damages he thought he was buying
a valuable diamond, and instead got something worthless and he would likely be able to state a valid claim under
the CFA or the FSAA in such a situation. What distinguishes the case at bar from this hypothetical is that, under the
ONeils theory of damages, a functioning crib is worth less than anticipated only if its purchaser opts to lock the
drop side into place. Insofar as the ONeils have never done so, they cannot claim that they received less than what
they bargained for.
12 It is not entirely clear in the first instance whether the ONeils, as private parties, may seek injunctive relief under
either the CFA or the FSAA, particularly where they have not suffered any cognizable damages. See Lofquist v.
Whitaker Buick-Jeep-Eagle, Inc., No. C5-01-767, 2001 WL 1530907, at *1 (Minn. Ct. App. Dec. 4, 2001)
(expressly declining to answer this question under the CFA). The Court need not address this issue because even
assuming arguendo that injunctive relief is available, Plaintiffs have not pleaded facts indicating that such relief
would be appropriate.
added).) Were it otherwise, the ONeils would have (and should have) alleged that
Defendants made and are continuing to make misleading or deceptive representations
or Defendants used and are still using misrepresentations.13 Second, the ONeils
expressly disclaimed representing any person who has suffered a personal injury as a
result of a defective crib. An injunction intended to prevent future child injuries and
death, therefore, is beyond the scope of the claims asserted in the SAC. Accordingly,
the fact that the ONeils seek injunctive relief on their consumer-protection claims does
not save those claims from dismissal.
For all the foregoing reasons, the Court concludes that the SAC must be
dismissed. That leaves the Court with one additional question: should the dismissal be
with or without prejudice? In answering that question, the Court notes that Plaintiffs
counsel have had three bites at the pleading apple: the original Complaint, followed by
two subsequent Amended Complaints. Moreover, although the original Complaint was
amended before any response was filed, Simplicity moved to dismiss the First Amended
Complaint on the ground that there were no alleged cognizable damages. (See Doc. No.
18 at 7-13.) In other words, the defect that the Court has discussed above which is fatal
to the claims alleged in the SAC was laid bare by Simplicity well before the SAC was
13 The CPSCs recall notice which the Court may consider in ruling on Defendants Motions because it is
referenced throughout the SAC, see Moses.com Sec., Inc. v. Comprehensive Software Sys., Inc., 406 F.3d 1052,
1063 n.3 (8th Cir. 2005) also suggests that the cribs at issue are no longer being sold. See
http://www.cpsc.gov/CPSCPUB/PREREL/prhtml07/07307.html (last visited May 8, 2008) (indicating that recalled
cribs were sold in department stores, childrens stores and mass merchandisers nationwide from January 1998
through May 2007) (emphasis added). And, as noted above, Simplicity apparently is no longer in business.
The claims alleged in this case do not arise out of a complicated area of the law,
such as securities litigation, where the drafting of a cognizable complaint can be a
matter of trial and error. Eminence Capital v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th
Cir. 2003). Rather, this is a straight-forward product-defect case. The Court believes that
there have been ample opportunities to research and plead sufficient claims here. In re
Career Educ. Corp. Sec. Litig., No. 03 C 8884, 2007 U.S. Dist. LEXIS 23635, at *36
(N.D. Ill. Mar. 29, 2007). [A]t some point, a court must decide that a plaintiff has had
fair opportunity to make his case; if, after that time, a cause of action has not been
established, the court should finally dismiss the suit. Schiller v. Physicians Res. Group
Inc., 342 F.3d 563, 567 (5th Cir. 2003) (citation omitted). This is such a case, and that
time has come.
Based on the foregoing, and all the files, records, and proceedings herein, IT IS
ORDERED that Defendants Motions to Dismiss (Doc. Nos. 56, 59) are GRANTED
and Plaintiffs Second Amended Complaint (Doc. No. 46) is DISMISSED WITH
Date: May 12, 2008
s/Richard H. Kyle
United States District Judge


  What day were you injured?

  / /

  What caused your injuries?
Traffic/Bicycle Accident
Work-Related Injury
Wrongful Death
Dog Bite
Slip and Fall

  How have your injuries affected

  your life?


  What kinds of medical care
  professionals have you seen?


  What has your treatment cost?


  Is Insurance Involved?
My insurance may cover

Someone else's insurance
        may cover this.

I already filed a claim.
I rejected a settlement

I accepted a settlement

  Were there any witnesses?
Bystanders Witnessed This.
Police Responded and Filed
        a Police Report

Police Responded but Did
        Not File a Police Report



          By visiting this page or clicking the
  "submit" button above, you agree
  that you have read and accept this   "disclaimer".
Copyright © Michael E. Douglas, Attorney at Law, Saint Paul MN. All Rights Reserved.
Minnesota Law Firm representing Personal Injury, Car / Auto Accident, Workers Compensation, Medical Malpractice, Social Security Disability claims.
Dedicated to Injured Workers, Victims of Negligence, Car Accidents, Victims of Fraud, and those in need of legal assistance.