PRUSHAN et al v. SELECT COMFORT RETAIL CORP. et al

Filing 10

MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE J. CURTIS JOYNER ON 5/30/2017. 6/1/2017 ENTERED AND COPIES E-MAILED.(kp, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

ALAN PRUSHAN, ET AL.,
Plaintiffs,
v.
SELECT COMFORT RETAIL CORP.,
ET AL.,
Defendants.

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CIVIL ACTION
NO. 16-cv-5303

MEMORANDUM
Joyner, J.

May 30, 2017

Before the Court is Defendants’ Motion to Dismiss for
Failure to State a Claim (Doc. No. 2) and Plaintiff’s Response in
Opposition thereto (Doc. No. 9).

For the reasons below,

Defendants’ Motion is granted as to Plaintiffs’ fraud claim and
denied in all other respects.
I.

Facts and Procedural History1
Defendants Select Comfort Retail Corp. and Select Comfort

Corp. (collectively “Select Comfort”) design, manufacture,
advertise, distribute, and sell Sleep Number® beds.

In 1993 or

1994, Plaintiffs Alan Prushan (“Mr. Prushan”) and Carol Prushan

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Unless otherwise noted, the facts are taken from Plaintiffs’
Complaint. (“Compl.,” Doc. No. 1). In line with the standards
governing Fed. R. Civ. P. 12(b)(6), all factual allegations are viewed
in the light most favorable to the non-moving party. Phillips v. Cty.
of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008).

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(“Ms. Prushan”) purchased a Sleep Number bed directly from Select
Comfort.
At some point in time unknown to Plaintiffs, Select Comfort
received complaints about toxic mold growing in Sleep Number
beds.

Select Comfort neither recalled the beds nor provided

notice to purchasers.

Indeed, Plaintiffs cite in their complaint

a 2004 press report in which Select Comfort’s CEO stated that
Select Comfort had “intentionally been selective, rather than
broad, in our public communication of the issue (mold reports)
because we believe it is better for the mattress industry and
ourselves not to keep this topic in the headlines, causing
unnecessary concern for consumers.”

(Compl. ¶ 16).

Plaintiffs allege that they first learned of “the toxic mold
problem,” (Compl. ¶ 12), in November 2014, at which time
Plaintiffs inspected their Sleep Number bed and discovered that
it was contaminated with toxic mold.

Plaintiffs allege that,

since at least 1999, Mr. Prushan suffered from severe and
permanent injuries caused by his exposure to the toxic mold in
his bed and that such injuries are the direct and proximate
result of Select Comfort’s negligence.
Invoking diversity jurisdiction, Plaintiffs filed their
complaint in October 2016.

Plaintiffs allege numerous violations

of state law, in particular strict liability, product liability,
design defect, manufacturing defect, and failure to warn (Count

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I); negligent design and/or maintenance - product liability
(Count II); negligence - defective manufacture - product
liability (Count III); negligence - failure to warn - product
liability (Count IV); loss of consortium (Count V); and fraud
(Count VI).
II.

Standard
Federal Rule of Civil Procedure 12(b)(6) requires a court to

dismiss a complaint if the plaintiff has failed to “state a claim
on which relief can be granted.”

In evaluating a motion to

dismiss, the court must take all well-pleaded factual allegations
as true, but it is not required to blindly accept “a legal
conclusion couched as a factual allegation.”
478 U.S. 265, 286 (1986).

Papasan v. Allain,

Although a plaintiff is not required

to plead detailed factual allegations, the complaint must include
enough facts to “raise a right to relief above the speculative
level.”
III.

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).

Analysis

A. Statute of Limitations
Defendants first argue that all of Plaintiffs’ claims are
barred by the statute of limitations.

The parties are in

agreement that Pennsylvania law applies and that the statute of
limitations for Plaintiffs’ claims is two years.

See 42 Pa.

Cons. Stat. § 5524(2).
According to Defendants, the statute of limitations began to
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accrue when Mr. Prushan’s injury was first sustained in 1999 (or
earlier) and therefore Plaintiffs’ claims have long been timebarred.

Plaintiffs respond that Pennsylvania’s “discovery rule”

exception tolled the statute of limitations because Plaintiffs
were incapable of ascertaining the nature of Mr. Prushan’s
illness and its cause until they discovered the mold in their
mattress in November 2014.

Defendants answer that the discovery

rule is inapplicable to this case.

In the alternative,

Defendants argue that even if the discovery rule does apply,
Plaintiffs’ claims would still be time-barred because the
discovery rule exception would have expired in 2009 when
Defendants created a website dedicated to providing information
concerning mold in Sleep Number beds.

(Doc. No. 2-1, at 9-10).

The statue of limitations period “generally begins to run as
soon as the injury is sustained.”

Davis v. Wells Fargo, 824 F.3d

333, 344 n.13 (3d Cir. 2016) (citation omitted).

“In general,

‘lack of knowledge, mistake or misunderstanding do not toll the
running of the statute of limitations.’”

Id. (citing Pocono

Int’l Raceway, Inc. v. Pocono Produce, Inc., 503 Pa. 80, 84-85
(1983)).

“As an exception to that principle, Pennsylvania

adheres to the ‘discovery rule,’ which can, in limited
circumstances, afford plaintiffs additional time for the filing
of their claims.

But that rule only applies when the plaintiff

is unable, ‘despite the exercise of diligence, to determine the

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injury or its cause.’”

Id.

Plaintiffs allege that they did not learn of the possibility
of toxic mold in their bed until November 2014, at which time Mr.
Prushan checked inside his bed and discovered that it was
contaminated by toxic mold.

(Compl. ¶¶ 12-13).

Based upon these

allegations, a reasonable inference can be made that Plaintiffs
did not have reason to suspect that Mr. Prushan’s injuries were
caused by a defect in their Sleep Number bed until they
discovered the presence of mold in November 2014.

See Simon v.

Select Comfort Retail Corp., No. 4:14-CV-1136 JAR, 2014 WL
5849243, at *3 (E.D. Mo. Nov. 12, 2014); Graveline v. Select
Comfort Retail Corp., 871 F.Supp.2d 1033, 1038 (E.D. Cal. 2012).
At this stage of the litigation, therefore, Plaintiffs have
alleged sufficient facts such that their claims cannot be
dismissed as time-barred.

See Simon, 2014 WL 5849243, at *3;

Graveline, 871 F.Supp.2d at 1038.
B. Injury and Causation
Defendants next argue that all of Plaintiffs’ claims should
be dismissed for failure to plead a legally cognizable injury
caused by Select Comfort’s conduct.

In order to have standing

under Article III of the Constitution, a plaintiff must
adequately plead (1) an “‘injury in fact,’ or an ‘invasion of a
legally protected interest’ that is ‘concrete and
particularized,’” (2) a “causal connection between the injury and

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the conduct complained of,” and (3) a “likelihood ‘that the
injury will be redressed by a favorable decision.’”

In re

Horizon Healthcare Servs. Inc. Data Breach Litig., 846 F.3d 625,
633 (3d Cir. 2017) (citing Lujan v. Defs. of Wildlife, 504 U.S.
555, 560 (1992)).
Defendants argue that Plaintiffs’ complaint fails to
adequately plead injury-in-fact or a causal connection between
that injury and Defendants’ conduct, as the complaint contains
only conclusory statements of injury and causation without any
supporting detail.

Plaintiffs maintain that their complaint

satisfies Rule 8, which requires only “a short and plain
statement of the claim showing that the pleader is entitled to
relief.”

Fed. R. Civ. P. 8(a)(2).

Plaintiffs aver that they

chose not to bolster their complaint with detail regarding Mr.
Prushan’s medical condition and injuries because of privacy
concerns.

Plaintiffs maintain that their complaint should

survive the present Motion, but in the alternative they request
an opportunity to file an amended complaint under seal which
would plead Mr. Prushan’s medical condition and injuries in
detail.

(Doc. No. 9, at 8).

“In the context of a motion to dismiss, . . . the
injury-in-fact element is not Mount Everest.”

Horizon

Healthcare, 846 F.3d at 633 (alterations omitted).

“The contours

of the injury-in-fact requirement, while not precisely defined,

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are very generous, requiring only that claimant allege some
specific, identifiable trifle of injury.”

Id.

“At the pleading

stage, general factual allegations of injury resulting from the
defendant’s conduct may suffice, for on a motion to dismiss we
presume that general allegations embrace those specific facts
that are necessary to support the claim.”

Id. at 633-34.

Plaintiffs have alleged that Mr. Prushan suffered “severe
and permanent injuries” caused by exposure to toxic mold that
appeared in his Sleep Number bed as a result of Defendants’
conduct.

(Compl. ¶¶ 15, 17).

These allegations, though sparse,

are nonetheless sufficient to state a claim upon which relief may
be granted.

This is not a complaint where a plaintiff merely

asserts the presence of some unknown and amorphous injury;
plaintiffs have alleged physical injuries to Mr. Prushan’s person
that were caused by toxic mold.

Defendants are of course

entitled to learn more about Mr. Prushan’s alleged injuries
through discovery, but more detail at this stage is not needed.
C. Tort Claims: Counts I, II, III, and IV
Plaintiffs offer several theories of tort recovery,
including design defect, manufacturing defect, failure to warn,
and negligent maintenance.

Defendants do not meaningfully

distinguish between Plaintiffs’ theories of liability but instead
argue that any tort claims should be dismissed as a matter of law
because they all stem from a purported product defect, which

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Plaintiffs have failed to adequately plead.
The Plaintiffs’ Complaint alleges that the Sleep Number bed
they purchased from Defendants contained a latent defect–namely,
that the bed was susceptible to toxic mold growing inside the
bed.

(Compl. ¶¶ 10-11).

Defendants counter that the presence of

mold does not constitute a defect in design or manufacture;
rather, Defendants say, mold is a naturally occurring organism
that will grow virtually anywhere under the right conditions.2
(Doc. No. 2-1, at 12-14).

Viewing the allegations in a light

most favorable to Plaintiffs, we find that Plaintiffs have
adequately alleged that the Sleep Number bed was manufactured or
designed in such a manner that it was particularly amenable to
mold growth.

We also find that, regardless of any design or

manufacturing flaws, Plaintiffs have adequately stated a claim
that Defendants did not adequately warn Plaintiffs of the
possibility of mold growth or about any maintenance that would
have been required to avert mold growth.

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Defendants invite the Court to take judicial notice of two
environmental studies as well as a public statement made before a
United States House of Representatives subcommittee regarding the
properties of mold and mold growth. (Doc. No. 2-1, at 13 nn. 5 & 6).
Plaintiffs do not dispute the truth of the facts in question and they
have not objected to Defendants’ request that we take judicial notice
of these documents. The Court accordingly takes judicial notice of
the requested documents and finds that mold is a naturally occurring
organism that will grow virtually anywhere when the right conditions
are present. See Fed. R. Evid. 201; Kramer v. City of Jersey City,
455 F. App’x 204, 207 (3d Cir. 2011) (holding that district court did
not err by taking judicial notice of the relationship between high
steroid levels and aggressive behavior on a motion to dismiss).

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D. Loss of Consortium Claim: Count V
Defendants argue that Ms. Prushan’s loss of consortium claim
fails for two reasons.

First, the claim must fail because the

loss of consortium claim is derivative of Mr. Prushan’s tort
claims and thus cannot survive if those claims are dismissed.

We

have already held that Mr. Prushan’s tort claims may proceed to
discovery, and so Defendants’ first argument against the loss of
consortium claim necessarily fails.
Second, Defendants argue that Plaintiffs have failed to
plead facts demonstrating a sufficient impairment of the marital
relationship.

For the reasons discussed above with regard to

injury and causation, see Section III.B, supra, we disagree.
Plaintiffs have alleged that Mr. Prushan suffered severe and
permanent physical injuries as the result of exposure to toxic
mold.

(Compl. ¶¶ 15, 17).

They have also alleged that Ms.

Prushan has suffered the loss of Mr. Prushan’s companionship,
services, society, and ability, and that the Plaintiffs’ marital
association has been altered and impaired.

(Compl. ¶ 48).

At

this stage of the litigation, these allegations are sufficient to
state a claim for loss of consortium.
E. Fraud Claim: Count VI
Finally, Defendants argue that Plaintiffs’ fraud claim
should be dismissed for failure to comport with the heightened

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pleading requirements of Fed. R. Civ. P. 9(b).3

Rule 9(b)

provides: “In alleging fraud or mistake, a party must state with
particularity the circumstances constituting fraud or mistake.
Malice, intent, knowledge, and other conditions of a person’s
mind may be alleged generally.”

Fed. R. Civ. P. 9(b).

At a

minimum, plaintiffs should be able to name the “who, what, when,
where and how” of the fraud.

In re Burlington Coat Factory Sec.

Litig., 114 F.3d 1410, 1422 (3d Cir. 1997) (internal quotation
omitted).

Rule 9(b) gives defendants “notice of the claims

against them, provides an increased measure of protection for
their reputations, and reduces the number of frivolous suits
brought solely to extract settlements.”

Id. at 1418.

Courts

have noted, however, that Rule 9(b) should be applied “with some
flexibility and should not require plaintiffs to plead issues
that may have been concealed by the defendants.”

Rolo v. City

Investing Co. Liquidating Trust, 155 F.3d 644, 658 (3d Cir. 1998)
(abrogation on other grounds recognized by Forbes v. Eagleson,
228 F.3d 471, 483-84 (3d Cir. 2000)).
Plaintiffs’ theory of fraud is not entirely clear from its

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To recover for fraud under Pennsylvania law, a plaintiff must
prove the following elements: “‘(1) a representation; (2) which is
material to the transaction at hand; (3) made falsely, with knowledge
of its falsity or recklessness as to whether it is true or false; (4)
with the intent of misleading another into relying on it; (5)
justifiable reliance on the misrepresentation; and (6) the resulting
injury was proximately caused by the reliance.’” W. Chester Univ.
Found. v. MetLife Ins. Co. of Connecticut, No. CV 15-3627, 2017 WL
1355005, at *3 (E.D. Pa. Apr. 13, 2017) (citing Gibbs v. Ernst, 538
Pa. 193, 207 (1994)).

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Complaint, which at times seems to suggest that Defendants
committed fraud by failing to recall Plaintiffs’ bed.
51-54).

(Compl. ¶¶

We agree with Defendants that such a failure to recall

could not be the basis for a fraud claim, and Plaintiffs appear
to have abandoned that theory.

In their opposition Plaintiffs

clarify that they believe Defendants knew about and concealed the
alleged mold problem at the time Plaintiffs made their purchase
in 1993 or 1994 and that Plaintiffs justifiably relied on
Defendants’ misrepresentations as to safety and concealment of
material facts at the time of purchase.

(Doc. No. 9, at 12).

We find that Plaintiff’s Complaint fails to plead facts
supporting their fraud claim with the requisite specificity
required under Rule 9(b).

The Complaint does not allege any

detail regarding Defendants’ purported misrepresentations as to
safety or who, exactly, made those misrepresentations on
Defendants’ behalf.
state a fraud claim.

Such generalized pleading is insufficient to
See State Farm Mut. Auto. Ins. Co. v.

Stavropolskiy, No. 15-CV-5929, 2016 WL 627257, at *3 (E.D. Pa.
Feb. 17, 2016); Kester v. Zimmer Holdings, Inc., No.
2:10-CV-00523, 2010 WL 4103553, at *3 (W.D. Pa. Oct. 18, 2010).
IV.

Conclusion
For the foregoing reasons, Defendants’ Motion is granted as

to Plaintiffs’ fraud claim and denied in all other respects.
Plaintiffs’ claim for fraud is hereby dismissed without

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prejudice.

An appropriate Order follows.

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