Fashion Model Files Lawsuit Against CoolSculpting, ZELTIQ Aesthetics
A notable fashion model has filed a lawsuit against CoolSculpting manufacturer ZELTIQ aesthetics claiming that the product ended her quality of life and her career and caused her to suffer severe personal injuries and disfigurement. She is seeking over $50 million in damages. She claims the company failed to alert consumers about intrinsic risks associated with the device, false advertising, and willfully misleading customers as to the safety of their device.
CoolSculpting is an alternative to liposuction that allows for contouring small areas of the body. However, in a small number of cases, the treatment results in “paradoxical adipose hyperplasia” which actually increases the mass around the surgical site. The issue was not reported until 2019. Most individuals who had CoolSculpting done on them were not aware at the time that there was a risk associated with it. Nonetheless, the instances of paradoxical adipose hyperplasia are so small that it may have taken a while before anyone knew what was happening.
In a product liability lawsuit like the one described above; it doesn’t matter if the company knew that their device could result in the exact opposite outcome in a small minority of cases because they are liable regardless. However, the plaintiff is taking the position that the company knew about the dangers and then failed to report them to doctors, perhaps forestalling tests that could determine the likelihood that the device would fail or treatments that could be available to those who suffered from the adipose hyperplasia.
If there is evidence that the folks at ZELTIQ hid negative outcomes related to their device or thwarted the process of reporting negative outcomes to regulatory bureaus, then they could be on the hook for punitive damages. The difference between a $1 million verdict and a $50 million verdict will come down to what ZELTIQ knew and when.
Are punitive damages likely?
Punitive damages are never likely and lawyers file lawsuits based on the most aggressive allegations they can support. So, you can accuse CoolSculpting of knowing beforehand about dangers to their clients without necessarily having evidence that they did. Then, in depositions and discovery, you try to find out when the first instance of a CoolSculpting problem was. What did the company do about it? What did their scientists think at the time?
The failure rate of the device remains below 1% meaning that it will be more difficult for the plaintiffs to prove that CoolSculpting knew they had a device-related issue. They can claim that at the time, they were looking at the individual patients for signs that they had a bad reaction to the device. One bad reaction would not immediately cause the device makers to assume the device was at fault.
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