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Clayton v. Katz

United States District Court, S.D. New York

March 31, 2015



ANDREW L. CARTER, Jr., District Judge.


This is a medical malpractice action arising out of a cosmetic facial procedure performed by board-certified dermatologist Bruce E. Katz, M.D. ("Dr. Katz") on Plaintiff Nancy Clayton ("Clayton") on May 7, 2008. The procedure was performed using an 18-watt SmartLipo laser (the "SmartLipo") distributed by Cynosure, Inc. Clayton and her husband, Plaintiff Zane A. Miranda, (collectively, "Plaintiffs") allege that Clayton did not give informed consent and that Dr. Katz negligently recommended and performed the procedure, causing Clayton to sustain serious burns to her face. Presently before the Court is Defendants' motion in limine, pursuant to Rule 26 of the Federal Rules of Civil Procedure ("Rule 26") and Rules 104 and 702 of the Federal Rules of Evidence ("Rule 104" and "Rule 702", respectively), to preclude Plaintiffs' proposed expert witness, Dr. Douglas Hendricks, from testifying at trial or, in the alternative, from testifying about any opinions not contained in his expert report. For the reasons described below, that motion is granted in part and denied in part.


A. Factual Background[1]

The SmartLipo is a laser-assisted liposuction ("LAL") system. Use of the device involves the insertion of a cannula (i.e., a tube) that contains a laser fiber which generates energy through a small incision in close proximity to the treatment area. When the laser cannula is moved back and forth, the laser fiber comes into direct contact with fat cells, causing them to swell and rupture, leaving an oily residue which is then absorbed into the lymphatic system or suctioned. LAL is considered to be less invasive than traditional liposuction and purportedly results in less trauma to the surrounding tissue. LAL also stimulates production of collagen, causing tissue contraction or "skin-tightening."

Dr. Katz was one of the first practitioners in the United States to conduct the LAL procedure following its clearance by the Food and Drug Administration, and he participated in the initial clinical trials of the SmartLipo. He has an agreement with the manufacturer of the laser which compensates him for, among other things, travel for attending peer-reviewed medical meetings, speaking at meetings sponsored by Cynosure, demonstrating the use of their products, developing new applications for the use of the SmartLipo, and training new physicians on the SmartLipo.

In December 2007, Miranda, a board certified dermatologist, attended a PowerPoint presentation on the SmartLipo. Dr. Katz described LAL as a relatively new procedure that was "arguably better" than traditional liposuction and which could also be used on individuals with loose skin who wanted to tighten their skin without liposuction. After the lecture, Miranda approached Dr. Katz and they spoke about the prospect of using SmartLipo to eliminate festoons on Miranda's wife, Nancy Clayton. Dr. Katz requested that Miranda send him photographs, which he did, and Miranda then made an appointment for Dr. Katz to see Clayton.

Dr. Katz saw Clayton, who was accompanied by Miranda, on February 7, 2008. Dr. Katz was made aware of Clayton's medical history, including a prosthetic aortic valve, Coumadin use and prior facial cosmetic surgery. The parties dispute whether he was also made aware of Clayton's prior facial silicone injections at this time. Dr. Katz advised Clayton and her husband that she would have much more bruising and swelling due to her Coumadin intake, and his records note that he assessed the fullness and laxity of Clayton's cheeks and that he discussed the risks, benefits, and alternatives to the procedure with Clayton and Miranda. Plaintiffs agreed that Clayton would undergo the procedure. Although Clayton understood that the SmartLipo would not be used to remove fat, she was not aware of how precisely the procedure would remove her festoons. Plaintiffs did not conduct any additional research or discuss the risks of the procedure or laser procedures in general at any time before the procedure in May 2008.

On May 7, 2008, Clayton presented to Dr. Katz's office for the procedure. Clayton did not receive LAL treatment, but rather underwent a skin-tightening treatment using the SmartLipo as a tool. Clayton executed two consent forms, one for liposuction and the other for laser surgery, which expressly noted the risk of objectionable scarring and alterations of skin pigmentation, as well as the possibility that the final results may not be apparent for months postoperatively. These forms also indicated that there were no guarantees to the treatment. Katz utilized the 18-watt SmartLipo machine for the procedure, during which time he delivered a total of 3, 199 joules of energy to her facial tissue. Clayton recalls Katz speaking with his resident or fellow about Clayton's skin temperature while administering the procedure. Katz recalls that there were no complications and that Clayton tolerated the procedure well.

Clayton returned to Dr. Katz's office on May 9, 2008, two days after the procedure, and Katz assessed her as "healing well." On May 28, 2008, however, Clayton, who had returned to her home in California, contacted Dr. Katz about white scabbing with redness in the area of her left eye. Clayton also developed ulcerations on both her cheeks between her May 9, 2008 visit with Dr. Katz and her next visit on June 10, 2008. During that June 10, 2008 visit, Katz debrided Clayton's left cheek ulceration. Clayton also returned to Dr. Katz's office on June 15 and 16, 2008, and on the latter visit, Katz debrided the ulceration and instructed Miranda on how to perform the debridement.

Upon their return home to California, however, Miranda refused to debride Clayton's wounds. On July 1, 2008, Clayton was seen by Dr. Douglas E. Hendricks for an initial consultation. Dr. Hendricks assessed bilateral face lesions on Clayton's cheeks and recommended hyperbaric oxygen treatment for her wounds. Clayton last presented to Dr. Katz on July 14, 2008. According to Hendricks, it took three months for Clayton's ulcers to close, and additional healing and scarring was expected for another 12 months after that.

B. Dr. Douglas E. Hendricks

Dr. Hendricks graduated from University of Louisville's medical school in 1982. ( See July 18, 2014 Wayne E. Cousin Decl., Ex. F, Hendricks Dep. 7:20-25, August 25, 2011 (hereinafter "Hendricks Dep.").) He subsequently completed a one-year internship, and then a five-year residency in general surgery at the University of Louisville's Department of Surgery. (Hendricks Dep. 7:25-8:11.) After his residency, Dr. Hendricks completed a one-year research fellowship in plastic surgery at the University of Pittsburgh, and then a two-year formal residency in plastic surgery also at the University of Pittsburgh. (Hendricks Dep. 8:12-10:8.) The latter involved "head to toe cosmetic procedures, [and] reconstructive procedures" including the face. (Hendricks Dep. 10:12-18.) His clinical work included procedures performed on festoons, including blepharoplasty, which is a surgical procedure that eliminates excess skin of the upper or lower eyelids. (Hendricks Dep. 11:1-14.)

After his residency, Dr. Hendricks served as assistant professor in plastic surgery at Loma Linda University Medical School for approximately 10 years, (Hendricks Dep. 12:16-24; 13:5-11), and later began a private practice concentrated on cosmetic surgery. (Hendricks 13:15-24.) Dr. Hendricks is licensed to practice in California, a member of several medical professional associations devoted to plastic surgery and/or laser medicine, (Hendricks Dep. 48:20-25), and is board-certified in both general surgery and plastic surgery. (Hendricks Dep. 16:8-11.) Dr. Hendricks's publications include articles related to facial surgery. (Hendricks Dep. 17:2-4.)

Dr. Hendricks frequently uses the SmartLipo equipment in the course of his practice. He purchased a SmartLipo machine and underwent a day-long training on the equipment in 2007. (Hendricks Dep. 22:7-17.) He has used the machine to perform surgeries on the face, including approximately 60 to 75 times in the festoon area since 2007, (Hendricks Dep. 46:15-27), and has conducted lipolysis in the facial area approximately 200 times. (Hendricks Dep. 49:15-19.) Dr. Hendricks has conducted research and lectured about the SmartLipo device, ...

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