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Vallbona v. Springer3/11/1996
KREMER, P. J.
Defendants Roy C. Springer et al. appeal a judgment after jury trial favoring plaintiffs Maria Vallbona et al. on their complaint for fraud, negligent misrepresentation, and breach of contract. Defendants attack the propriety and amount of the punitive damages award favoring plaintiffs. Defendants also assert evidentiary and instructional errors. We affirm the judgment.
I.
INTRODUCTION
Knowing the United States Food and Drug Administration (FDA) had not approved use of a low-level laser procedure to remove cellulite, unwelcome lumpy fat deposits especially in the thigh and buttocks, California-licensed physician Dr. Springer opened the Laser Center clinic in Tijuana, Mexico, to perform such procedure. Dr. Springer solicited persons in San Diego to enroll in his Tijuana clinic for laser removal of cellulite. In soliciting plaintiffs, Dr. Springer made various misrepresentations involving past use of the laser procedure in Europe to remove cellulite and the anticipated FDA approval of such procedure for use in the United States. Relying on Dr. Springer's representations, plaintiffs underwent the laser procedure at his Tijuana clinic without significant removal of cellulite. Plaintiffs sued defendants on fraud and contractual theories. By special verdict the jury found for plaintiffs on all causes of action.
II.
FACTS
In 1988 Dr. Springer learned of a procedure using a low-level laser to remove cellulite. Aware that the FDA had not approved the laser procedure for use in the United States in removing cellulite, Dr. Springer contacted the FDA about the approval process. Because of the lack of FDA approval, Dr. Springer did not open a laser therapy clinic in San Diego.
In April 1989 the Springers formed a Mexican corporation, bought four lasers in the corporation's name and established the Laser Center clinic in Tijuana to perform the laser procedure on cellulite. In 1989 and 1990 defendants through advertising solicited San Diego area patients with unwanted cellulite to enroll at the Tijuana clinic for the laser procedure as an alternative to liposuction surgery. Defendants represented that the laser procedure had been used in Europe in the last five years with more than twenty-three thousand people treated for cellulite. Defendants also represented there was little or no reoccurrence of cellulite in the thousands of cases on record since the laser treatment was first used.
In 1989 and 1990 defendants falsely represented to plaintiffs that although the FDA had not yet approved the laser technique used by defendants, an application for approval was pending before the FDA with such approval expected within a few months. Defendants told plaintiffs the new low-level laser technique was the most effective and convenient method developed for removing cellulite. Defendants also represented that at the end of a specified period of treatment plaintiffs would have the legs, hips, or buttocks they wanted.
Relying on defendants' representations, plaintiffs enrolled at defendants' Tijuana clinic for removal of cellulite through the laser procedure. Beginning in September 1989, plaintiff Roosdahl underwent the laser procedure about 80 times over the course of 11 months and was charged at least $2,000. Roosdahl's cellulite condition did not disappear or improve. Beginning in February 1990, plaintiff Hartwigsen underwent the laser procedure about 40 times over the course of 7 months without improvement and was charged $2,000. Beginning in March 1990, plaintiff Vallbona underwent the laser procedure forty-seven times over the course of five or six months and was charged $2,000. Vallb
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