CVN screenshot of defense attorney Karin Curtis delivering her closing argument. Click here to see video from the trial.
Los Angeles, CA - A long-running products liability trial ended in a defense verdict Friday, when a California state court jury sided with laser manufacturer Cynosure Inc. in a lawsuit alleging the company’s fat removal device left a woman with permanent pain and scarring.
The Los Angeles County jury returned their verdict following three days of deliberations in a sprawling trial that began in late March. Beverly Hills plastic surgeon Stuart Linder and his patient and office manager Adriana Diaz sought millions in punitive and compensatory damages after Cynosure’s “Cellulaze” device supposedly burned Diaz during its first use in Linder’s office.
However Cynosure, represented by Gordon Rees Scully Mansukhani LLP, successfully fended off claims the company misrepresented the Cellulaze’s approval status with the Food & Drug Administration, and argued that Diaz’s prior history of liposuction treatment made her a poor candidate for Cellulaze treatment.
The trial, believed to be the first involving the Cellulaze device, was webcast and recorded gavel-to-gavel by Courtroom View Network.
Thomas Brown of Brown White & Osborne LLP, who represents the plaintiffs, told CVN he would seek a new trial.
"Our clients are grateful for the opportunity to present their case and are glad that some of the facts about Cynosure’s activities were brought to light," Brown said in an email. "We anticipate filing post-trial motions and future litigation to information discovered mid-trial about Cynosure’s disclosures to the FDA concerning the Cellulaze."
Attorneys for Cynosure did not respond to a request for comment.
Dr. Linder, known for his appearances on several reality and news television shows, and Diaz sued Cynosure, a division of Hologic, in 2013, after a Cellulaze treatment on her leg allegedly left Diaz suffering from chronic pain, swelling and skin deformations.
Linder and Diaz claim Cynosure failed to test whether a temperature sensor on the laser accurately reflects how hot human tissue gets during its use, and that the company’s sales representatives made numerous misrepresentations when pitching the device, including claiming it had FDA approval for cellulite treatment.
Attorney Caleb Mason, also representing Linder and Diaz, told jurors during his closing argument that Cynosure originally designed the Cellulaze as a cutting laser but later decided to market it for cellulite treatment with some modifications.
Mason explained that Cynosure representatives reached out to Linder’s Beverly Hills practice with a pitch claiming the supposedly FDA approved device would generate substantial revenue, inducing him to buy the $200,000+ laser and then use it for the first time on Diaz.
He asked the jury to award Diaz and Linder between 5 and 7 million dollars in compensatory damages and unspecified punitive damages.
Cynosure attorney Karin Curtis countered that the Cellulaze qualifies as a “Type 2” device under FDA regulations and does not require “approval” the way “Type 3” products, which include lifesaving devices, do.
Type 2 products go through a less rigorous “clearance” process, and Curtis told jurors the evidence showed that Cynosure made accurate representations to Linder regarding the FDA’s evaluation of the Cellulaze.
Curtis told the jury that Diaz was exaggerating the supposed side-effects of her elective Cellulaze treatment, noting that she was working out within two weeks of the procedure.
Curtis showed the jury before and after photos of Diaz’s leg, arguing they showed no appreciable difference. She blamed any lingering effects of the Cellulaze treatment on Linder supposedly using it in the same area Diaz previously had liposuction, which Curtis argued Diaz should have known not to do.
Prior to the start of the trial Cynosure filed a motion seeking to bar all members of the news media from attending the public trial proceedings, however Judge Frederick Shaller rejected the request.
“[C]onducting a trial in private will impermissibly infringe on the right of the media to report newsworthy facts to the interested public and the factors in favor of allowing cameras, recording, and broadcasting outweigh any interest in the parties in an order that the proceedings be held in private,” Shaller wrote in his order denying Cynosure’s request.
Judge Shaller also rejected a request for a gag order to bar trial participants from discussing the case publicly.
“Prior restraints, such as the one contemplated by this request, are disfavored and presumptively invalid,” he wrote.
The full proceedings, including testimony from numerous expert witnesses, are available to CVN subscribers along with hundreds of other civil jury trials from throughout California and the rest of the United States.
The case is captioned Adriana Diaz v. Cynosure Inc., case number BC559399, in Los Angeles County Superior Court.
E-mail David Siegel at dsiegel@cvn.com
