A personal injury and product liability case against AbbVie, the parent company of the manufacturer of CoolSculpting technology, will continue in New Jersey state court, a federal judge decided this week after determining the pharmaceutical company did not prove it had been fraudulently joined with other defendants in the case.
U.S. District Judge Robert Kirsch of the District of New Jersey issued a memorandum opinion July 15 granting plaintiff Kimberly Fenton’s motion to remand her product liability case to New Jersey state court after it had been removed from Monmouth County Superior Court. Fenton brought claims against AbbVie and its subsidiary that markets devices for cryolipolysis procedures, Zeltiq Aesthetics Inc., as well as Velocity Wellness Institute, where she underwent the CoolSculpting cosmetic procedure that freezes fat cells.
Counsel with Sills Cummis & Gross are representing AbbVie.
Kirsch rejected AbbVie’s argument that the Velocity defendants were fraudulently joined, finding that AbbVie did not meet the “heavy burden” of demonstrating that Fenton’s complaint was inadequate or “impossible” under New Jersey’s more lenient pleading requirements, the opinion said.
“The complaint generally alleges the elements for holding a medical provider strictly liable under a defective design theory, and AbbVie has not cited … to a single case which addresses the pleading requirements in state court,” Kirsch wrote. “In order for a court to find fraudulent joinder, ‘it must be impossible for a state court to find that a plaintiff has stated a valid cause of action.’”
Kirsch also pointed to other courts that have reached a similar conclusion in the jurisdiction of the U.S. Court of Appeals for the Third Circuit, such as a 2019 case in the U.S. District Court for the Eastern District of Pennsylvania in Spangenberg v. McNeilus Truck & Manufacturing. In that case, the court rejected the defendants’ argument that the initial complaint “lumped” the nondiverse defendant in with the other defendants. Instead, the removing party has to show that “it is legally impossible” for the plaintiff to prevail against those defendants.
Fenton filed the complaint in the state court action in October 2023 for claims of strict product liability, negligence, medical monitoring, negligent misrepresentation and fraudulent concealment after complications resulted from a CoolSculpting procedure. She filed the complaint against her employer, Velocity Chiropractic and Velocity Wellness Institute, a medical spa with aesthetic and anti-aging services with the same owners and supervisors as Velocity Chiropractic in Oceanport. She also named AbbVie and its subsidiary Zeltiq Aesthetics as defendants.
She received the CoolSculpting treatment after the owners of Velocity Chiropractic asked her to assist its Velocity Wellness employees who were training to perform the procedure. Fenton then developed paradoxical hyperplasia, a rare side effect of the CoolSculpting procedure which causes permanent disfigurement in the form of ”permanent cutaneous and subcutaneous tissue damage,” according to the National Center for Biotechnology Information.
Fenton claims she was never presented with any paperwork, did not sign any documents for informed consent and ”was not aware that by undergoing the CoolSculpting procedure she was subjecting herself to a risk of developing permanent deformities. The condition she developed created damaged fat tissue and skin laxity which requires multiple invasive surgeries to remove,” the opinion said.
AbbVie removed the suit to federal court in December 2023.
Randall Tranger and Thomas J. Mallon, of Mallon & Tranger in Freehold, New Jersey, are representing Fenton.
Jennifer N. Cortopassi, a partner of Ronan, Tuzzio & Giannone in Tinton Falls, New Jersey, is representing Velocity Wellness Institute.
Erin Barrett and Beth S. Rose, of Sills Cummis, are representing AbbVie.
Counsel for the parties did not immediately return requests for comment.
