Wednesday, October 27, 2021
Sullivan v. O'Connor is an old chestnut of contracts lore, which we have memorialized in prior posts here and here. One of the joys of teaching contracts is that musty old cases turn up periodically in new guises. If none of your students remember Lady Duff, they might remember Maya Angelou or Britney Spears.
Everything old is new again. Musty old Sullivan v. O'Connor is reborn, as according to the New York Times, the former supermodel Linda Evangelista (left) is suing the company behind a cosmetic procedure known as "CoolSculpting," alleging that her experience with the procedure has left her "brutally disfigured." And the great thing for us is that her complaint alleges causes of action sounding not only in tort but also in contracts (sort of)!
Ms. Evangelista alleges that Zeltiq Aesthetics, Inc (Zeltiq) marketed its CoolSculpting System, a non-invasive alternative to liposuction surgery, and failed to warn consumers of serious adverse side-effects associated with CoolSculpting, such as paradoxical adipose hyperplasia (PAH). Rather, Zeltiq claimed that CoolSculpting was "the safe, non-invasive way to reduce fat in common trouble areas that tend to be diet- and exercise-resistant."
CoolSculpting apparently involves killing fat cells in targeted areas by freezing them. The dead cells are then absorbed by the body and excreted in the four-six months following treatment. Ew.
Although Zeltiq disclosed in its SEC filings that PAH was a known side-effect to the CoolSculpting System, Ms. Evangelista alleges that it did not disclose that risk to consumers. She alleges that her career was cut short in 2016 after she underwent seven rounds of CoolSculpting treatments. Some of the treated areas swelled rather than reducing, and Ms. Evangelista was diagnosed as suffering from PAH, a risk about which she claims neither Zeltiq nor her dermatologist warned her.
When Ms. Evangelista complained to Zeltiq about her condition, the company offered to pay for corrective liposuction surgery on condition that Ms. Evangelista sign a confidentiality agreement and release. Ms. Evangelista refused to sign the document but proceeded nonetheless with the corrective surgery, which was painful and required her to wear compression garments for several months, making it impossible for her to work. Despite two rounds of corrective surgery, each of which required "length and painful" recoveries, Ms. Evangelista's condition did not improve. As a result, she claims that she suffered permanent disfiguring injuries that have made it impossible for her to work as a model.
She alleges causes of action sounding in products liability, negligence, breach of express and implied warranties, various types of fraud, and a violation of New York's consumer protection statutes. She also alleges promissory estoppel.
It's hard to see how she gets to her $50 million in alleged damages on a promissory estoppel claim. It seems like the best that would get her would be reimbursement for her medical expenses associated with the corrective surgeries. According to the complaint, that will only get her $38,000. Similarly, while breach of warranty claims can be quite generous, they cannot be speculative. Even if she can show her career was cut short due to the side-effects she suffered after treatments, how can we know that, but for that her disfigurement, she would have earned $50 million. Ms. Evangelista would have to show that the value of contracts that she was forcded to decline due to her condition amounted to $50 million.
More likely, the warranty and promissory estoppel claims are sideshows. The main event will be her products liability and tort claims. She alleges significant mental harms in addition to her physical harms, including severe social anxiety and agoraphobia. The torts claims seem like a more reliable path towards the stratospheric damages that Ms. Evangelista seeks.
H/T David Oedel