Products Liability Law Reporter

A federal district court held that remand was warranted in a suit brought against a wellness clinic and the parent company of the manufacturer of CoolSculpting, a treatment for unwanted fat cells.

Kimberly Fenton was an employee of Velocity Chiropractic when its owners allegedly embarked on a separate venture known as Velocity Wellness Institute, which offered aesthetic and anti-aging services, including Coolsculpting. Velocity Chiropractic’s owners allegedly asked Fenton to volunteer to assist other employees who were training to perform CoolSculpting procedures. Fenton underwent a CoolSculpting procedure performed by one of the Velocity Wellness trainees. She developed paradoxical adipose hyperplasia, which led to permanent disfigurement.

Fenton filed suit in New Jersey state court against Velocity Chiropractic, Velocity Wellness, and AbbVie, Inc., the parent company of the manufacturer of the CoolSculpting technology, Zeltiq Aesthetics, Inc. The plaintiff alleged claims for strict liability defective design and failure to warn, negligence, medical monitoring, negligent misrepresentation and concealment, and fraudulent misrepresentation and concealment. AbbVie removed the case to federal court, and Velocity Wellness subsequently moved to dismiss. In a letter, AbbVie asked that the court consider the threshold issue of fraudulent joinder presented in its notice of removal. The plaintiff moved to remand.

Granting the plaintiff’s motion, the court noted that in her complaint, the plaintiff alleged that the defendants knew its CoolSculpting system was unreasonably dangerous and defective. Such a “group pleading” does not generally satisfy federal civil procedure rules because it does not sufficiently place the defendants on notice of the claims against each of them, the court found. Nevertheless, the court noted that the fraudulent joinder analysis does not depend on whether a plaintiff has met the federal pleading requirements. Citing case law, the court said the standard for the court is whether there is even a possibility that the plaintiff’s claim could survive in state court. Moreover, for the 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.

Applying these principles, the court concluded that AbbVie had not met its burden of demonstrating that the plaintiff’s allegations were inadequate under New Jersey’s lenient pleading requirements. The complaint generally alleges the elements for holding a medical provider strictly liable under a defective design theory, the court said, adding that AbbVie has not demonstrated that it would be impossible for a New Jersey court to find a valid cause of action against the Velocity defendants named in the complaint.

Accordingly, the court concluded that in light of AbbVie’s failure to carry its burden of demonstrating fraudulent joinder, and because the parties did not contend there was any other basis for federal jurisdiction, remand was warranted.

Citation: Fenton v. Velocity Wellness Institute, 2024 WL 3415247 (D.N.J. July 15, 2024).

Plaintiff counsel: Randall L. Tranger and Thomas J. Mallon, Freehold, N.J.