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177

VIEWS: 12 PAGES: 55

									                         IN THE CIRCUIT COURT OF BOONE COUNTY
                                    STATE OF MISSOURI

TREASA FROST, on behalf of herself and all
others similarly situated,
   Plaintiff,

   v.                                               Case No. ____________________________

SKIN RX, L.L.C.,
  (No service required)

LAURA RACKERS,
  (No service required)

   and

VISHNU SUBRAMANI,
  (No service required)

   Defendants.

                                              PETITION

         Plaintiff, individually, and as a representative of the class identified below, states and

alleges as follows.

         1.     This is consumer fraud action and a purported consumer class action under Mo.

Rev. Stat. § 407.025, alleging the use and employment of unlawful methods, acts, and practices

in the sale of cosmetic surgery.

         2.     “Smart Lipo” is a trade name for a cosmetic surgery otherwise known as “laser

lipolysis.”

         3.     Smart Lipo is a service sold primarily for personal use and not for resale or for

use or consumption in a trade or business.

         4.     As defined by Mo. Rev. Stat. § 407.010(4), Smart Lipo is “merchandise.”

         5.     As defined by 15 CSR 60-7.010(K). Smart Lipo is a “product”
                                              Parties

SKIN Rx

       6.      Defendant SKIN Rx, L.L.C. (“SKIN Rx”) is a Missouri limited liability company

that holds itself out to the public as a "MedSpa & Laser Center."

       7.      At all times mentioned in this Petition, SKIN Rx was doing business at 3115

Falling Leaf Court, Columbia, Missouri (the “SKIN Rx office”).

       8.      At all times mentioned in this Petition, SKIN Rx sold and performed Smart Lipo

at the SKIN Rx office, and it offered, advertised, and sold Smart Lipo throughout the State of

Missouri.

       9.      As defined by Mo. Rev. Stat. § 407.010(5) and 15 CSR 60-7.010(I), SKIN Rx is a

“person.”

       10.     As defined by 15 CSR 60-7.010(N), SKIN Rx is a “seller.”

Subramani

       11.     Defendant Vishnu Subramani (“Subramani”) is a natural person.

       12.     At all times mentioned in this Petition, Subramani performed Smart Lipo

procedures at the Skin RX office.

       13.     Subramani performed Smart Lipo at the SKIN Rx office under a regulatory

exception that allows physicians to perform “office-based surgery.”

       14.     (On information and belief) at all times mentioned in this Petition, Subramani

performed Smart Lipo procedures at The Nu You Smart Lipo & Body Sculpting Center in Cape

Girardeau, Missouri.

       15.     At all times mentioned in this Petition, Subramani acted as an agent, employee,

salesperson, and representative of SKIN Rx.
        16.   (On information and belief) at all times mentioned in this Petition, Subramani

acted as an agent, employee, salesperson, and representative of The Nu You Smart Lipo & Body

Sculpting Center.

        17.   At all times mentioned in this Petition, Subramani offered, advertised, and sold

Smart Lipo in the State of Missouri.

        18.   As defined by Mo. Rev. Stat. § 407.010(5) and 15 CSR 60-7.010(I), Subramani is

a “person.”

        19.   As defined by 15 CSR 60-7.010(N), Subramani is a “seller.”

Rackers

        20.   Defendant Laura Rackers (“Rackers”) is a natural person.

        21.    (On information and belief) Rackers is an officer of the corporation that is the

manager of SKIN Rx, and she is the individual who serves as the chief executive officer of SKIN

Rx.

        22.   At all times mentioned in this Petition, Rackers acted as an officer, agent,

employee, salesperson, and representative of SKIN Rx.

        23.   At all times mentioned in this Petition, Rackers offered, advertised, and sold

Smart Lipo in the State of Missouri.

        24.   As defined by Mo. Rev. Stat. § 407.010(5) and 15 CSR 60-7.010(I), Rackers is a

“person.”

        25.   As defined by 15 CSR 60-7.010(N), Rackers is a “seller.”

Frost

        26.   Plaintiff Treasa Frost (“Frost”) is a natural person who resides in Columbia,

Boone County, Missouri.
       27.     Frost purchased and was solicited for the purchase of Smart Lipo by Defendants,

as described more fully below.

       28.     As defined by Mo. Rev. Stat. § 407.010(5) and 15 CSR 60-7.010(I), Frost is a

“person.”

       29.     As defined by 15 CSR 60-9.010(B), Frost is a “consumer.”

The Class of Smart Lipo Patients

       30.     There are numerous persons who purchased and were solicited for the purchase of

Smart Lipo by Defendants (the “Smart Lipo Patients”).

       31.     As defined by Mo. Rev. Stat. § 407.010(5) and 15 CSR 60-7.010(I), the Smart

Lipo Patients are “persons.”

       32.     As defined by 15 CSR 60-9.010(B), the Smart Lipo Patients are “consumers.”

                                     Smart Lipo Outcomes

       33.     Defendants knew, and upon reasonable inquiry would know, each Defendant’s

significant history of negative outcomes for Smart Lipo patients, which include, but are not

limited to, the negative outcomes set forth immediately below.

               A.     Permanent nerve injury in areas where Smart Lipo has been performed,

       causing patients to experience paresthesias, dysthesias, pain, severe itching, and/or

       numbness.

               B.     Mysterious, untreatable draining wounds that will not heal, that cause

       excruciating pain, and that spontaneously erupt, leaving darkly pigmented scars in areas

       where Smart Lipo has been performed.

               C.     The formation of numerous, unexplained pockets of fluid throughout the

       body.
                 D.     Contour deformities in areas where Smart Lipo has been performed,

       including asymmetric contour, lumpiness, and a disfiguring “cobblestone” result.

                 E.     A generally unsatisfactory result, including no weight loss, no appreciable

       reduction in body size, and no improvement in contour or appearance.

                 F.     The necessity for additional surgical procedures to revise and attempt to

       correct contour deformities caused Smart Lipo.

       34.       At least four of Defendants’ patients suffer from the mysterious, untreatable

draining wounds described above.

       35.       At least one of Defendants’ patients has developed more than 70 unexplained

pockets of fluid throughout her body and has submitted samples of the fluid to the Centers for

Disease Control and Prevention (“CDC”) and to the Mayo Clinic. Neither the CDC nor the Mayo

Clinic nor any physician has been able to diagnose or effectively treat her condition, other than

to attribute the cause to Smart Lipo.

       36.       (On information and belief) numerous of Defendants’ patients suffer from the

contour deformities described above.

       37.       (On information and belief) numerous of Defendants’ patients suffer from the

nerve damage described above.

       38.       The facts set forth in paragraphs 33-37 of this Petition (collectively, the “negative

outcome facts”) are facts that are likely to significantly influence a consumer’s decision to

purchase Smart Lipo from Defendants.

       39.       Defendants knew, and upon reasonable inquiry would know, the negative

outcome facts.
       40.     Defendants failed to disclose the negative outcome facts to Frost and (on

information and belief) to numerous Smart Lipo patients, and such conduct was omission of

material facts as defined by 15 CSR 60-9.110(3).

       41.     Defendants engaged in methods, acts, uses, and practices which operated to hide

and keep the negative outcome facts from consumers, and this constituted concealment of

material facts as defined by 15 CSR 60-9.110(1). In the alternative, to the extent that the negative

outcome facts were stated, Defendants engaged in methods, acts, uses and practices which were

likely to curtail and reduce the ability of consumers to take notice of the negative outcome facts,

and this constituted suppression of material facts as defined by 15 CSR 60-9.110(2).

       42.     Defendants omitted the negative outcome facts in their advertisements.

              Defendants’ Qualifications and Competency to Perform Surgery

Subramani

       43.     Subramani is not board certified to perform surgery.

       44.     Subramani is board certified in internal medicine, which is the diagnosis and

treatment of diseases not requiring surgery.

       45.     A board certification in internal medicine is a general one, held by approximately

1/3 of all practicing physicians in the United States, and it does not qualify a physician to

perform surgery.

       46.     (On information and belief) Subramani holds no legitimate professional

certification that encompasses surgical training.

       47.     (On information and belief) Subramani received his training to perform Smart

Lipo from an Arizona gynecologist named Dr. Todd Malan. Dr. Malan is board certified only in

Obstetrics and Gynecology, and not in any surgical specialty; the Arizona Medical Board lists
his specialty as “Obstetrics & Gynecology”; and (on information and belief) Dr. Malan was not

competent to train Subramani to perform surgery, including Smart Lipo, and Subramani knew or

should have known that this was the case.

       48.    Dr. Malan has experienced the same failures and complaints with Smart Lipo as

Subramani, causing his patients to complain publicly about his lack of competency to perform

Smart Lipo, including on the following internet websites:

       http://www.ratemds.com/doctor-ratings/40659/AZ/Scottsdale/Malan;

       http://local.yahoo.com/info-42340671-malan-todd-md-smart-lipo-institute-scottsdale;

       http://www.complaintsboard.com/complaints/dr-todd-malan-c365446.html;

       http://www.scam.com/showthread.php?p=984039;

       http://www.complaintsboard.com/bysubcategory/plastic-surgery.html;

As sample of the public complaints follows.

              A.      “Claims to be the inventor of SmartLipo/Laser Lipo but he left me [sic]

       stomach disfigured with lumps and dents and then tried to convince me that my stomach

       was naturally shaped that way!! Stay away from this monster!”

              B.      “This doctor is a monster. He destroyed my body and now I'm

       permanently scared. My stomach is bumpy and has a long line through it, I can't even

       describe how bad it looks. I was 105 lbs. when I went in there, so no, I wasn't overweight.

       I won't undress in front of my husband now. The only way to repair the damage is with a

       tummy tuck. I've seen 2 plastic surgeons to see what they could do to help, and they have

       both offered to help me with a lawsuit. They say it was malpractice in their options. I can

       tell you one of these dr's is well-known and in Beverly Hills, CA. Dr. Malan didn't numb

       me all the way and started jabbing me with the steel canula and separating [sic] the tissue
        from my abdomen by prying it apart while I was awake and not numb. He said the

        numbing solution was being spraying in the cavity between the skin and abdomen. It was

        barbaric. He is not a plastic surgeon. I am filing a complaint with the AZ medical board. I

        want to make sure this dr never disfigures another person.”

               C.      “had smartlipo done with Dr. Malan on my abdomen and it was the worst

        decision of my life! My tummy is lumpy and uneven and you can see deep dimples. I

        know that this is not normal. I hate the way I look now. I have been researching this on

        the internet and I see that people only have one or two lumpy spots and they are small

        and almost unnoticeable in case they have any. Dr. Malan refuses to see me again. I

        cannot wear a bikini anymore and I don’t even let my husband see me without clothes on.

        I am really angry since I know this cannot be fixed! Christine from MA”

Rackers

        49.    Rackers holds no medical license, and (on information and belief) she has

completed no accredited medical training and holds no legitimate professional certification that

encompasses surgical training or patient care.

SKIN Rx

        50.    At no time has the SKIN Rx office met the requirements for licensure as an

ambulatory surgical center pursuant to 19 CSR 30-30.

        51.    The SKIN Rx office is not accredited by the JCAHO, AAAHC, AAAASF, AOA,

or by a state-recognized entity such as the Institute for Medical Quality, and it is not Medicare-

certified.
         52.     The facts set forth in the paragraphs 43-51 of this Petition (collectively, the

“competency facts”) are facts that are likely to significantly influence a consumer’s decision to

purchase Smart Lipo from Defendants.

         53.     Defendants knew, and upon reasonable inquiry would know, the competency

facts.

         54.     Defendants failed to disclose the competency facts to Frost and (on information

and belief) to numerous Smart Lipo patients, and such conduct was omission of material facts as

defined by 15 CSR 60-9.110(3).

         55.     Defendants engaged in methods, acts, uses, and practices which operated to hide

and keep the competency facts from consumers, and this constituted concealment of material

facts as defined by 15 CSR 60-9.110(1). In the alternative, to the extent that the competency

facts were stated, Defendants engaged in methods, acts, uses and practices which were likely to

curtail and reduce the ability of consumers to take notice of the competency facts, and this

constituted suppression of material facts as defined by 15 CSR 60-9.110(2).

         56.     Defendants omitted the competency facts in their advertisements.

               Violation of “Core Principals” of the American Medical Association

         57.     The American Medical Association has developed certain core principles for

office-based surgery (the “AMA core principles”). These core principles represent a wide

consensus within the medical profession and are intended to promote consistency in the safety

and quality of healthcare services for in-office procedures requiring moderate sedation/analgesia,

deep sedation/analgesia, or general anesthesia. Smart Lipo is such a procedure. A copy of the

AMA core principles is attached as Exhibit A and incorporated herein by reference.
       58.    At all times mentioned in this Petition, the manner in which Defendants

performed Smart Lipo at the SKIN Rx office violated at least five of the AMA core principles, as

set forth immediately below.

              A.      Core Principle #3: The SKIN Rx office was not accredited by the

       JCAHO, AAAHC, AAAASF, AOA, or by a state-recognized entity such as the Institute

       for Medical Quality, and it is not state licensed and/or Medicare-certified.

              B.      Core Principle #4: Subramani had no admitting privileges at any nearby

       hospital, no transfer agreement with another physician who had admitting privileges at a

       nearby hospital, and did not maintain an emergency transfer agreement with a nearby

       hospital.

              C.      Core Principle #7: Smart Lipo is not generally recognized by

       the American Board of Internal Medicine as falling within the scope of training and

       practice of internal medicine, and Subramani maintained no other board certification by

       any board recognized by the American Board of Medical Specialties, American

       Osteopathic Association, or a board with equivalent standards.

              D.      Core Principle #8: Subramani did not maintain core privileges at an

       accredited or licensed hospital or ambulatory surgical center, for the Smart Lipo

       procedure he performed in the SKIN Rx office.

              E.      Core Principle #9: At the SKIN Rx office there was no appropriate

       resuscitative equipment present, and quasi-medical personnel with direct patient contact

       (including Rackers) were not trained in basic life support.

       59.    The facts set forth in paragraphs 57-58 of this Petition, and the fact that

Defendants performed Smart Lipo at the SKIN Rx office in violation of the AMA core
principles, (collectively, the “AMA violation facts”) are facts that are likely to significantly

influence a consumer’s decision to purchase Smart Lipo from Defendants.

         60.   Defendants knew, and upon reasonable inquiry would know, the AMA violation

facts.

         61.   Defendants failed to disclose the AMA violation facts to Frost and (on

information and belief) to numerous Smart Lipo patients, and such conduct was omission of

material facts as defined by 15 CSR 60-9.110(3).

         62.   Defendants engaged in methods, acts, uses, and practices which operated to hide

and keep the AMA violation facts from consumers, and this constituted concealment of material

facts as defined by 15 CSR 60-9.110(1). In the alternative, to the extent that the AMA violation

facts were stated, Defendants engaged in methods, acts, uses and practices which were likely to

curtail and reduce the ability of consumers to take notice of the AMA violation facts, and this

constituted suppression of material facts as defined by 15 CSR 60-9.110(2).

         63.   Defendants omitted the AMA violation facts in their advertisements.

                           Smart Lipo Scientific Research and Facts

Editor of the Journal of the American Society for Dermatologic Surgery

         64.   In March of 2008, in an article published in the Wall Street Journal, the editor of

the JOURNAL OF THE AMERICAN SOCIETY FOR DERMATOLOGIC SURGERY stated that, "Smartlipo is

a marketing gimmick to get people through the door."

Aesthetic Plastic Surgery

         65.   A scientific study first published online in October of 2008 in the journal

AESTHETIC PLASTIC SURGERY (the “APS study”) concluded that, “Laser lipolysis is a new

technique still under development.”
       66.     The APS study reported that 18% of patients “were less satisfied” with the results

of laser lipolysis and that 2% “were not satisfied at all.”

       67.     The APS study reported that pain and discomfort were experienced by 17% of

patients one week after undergoing laser lipolysis.

       68.     The APS study reported that patient recovery required a full day of rest in

addition to the day of surgery: "patients were able to return to normal daily activities after the

first postoperative day.”

Manufacturer’s Study

       69.     In 2007, Cynosure, Inc., the manufacturer of the laser system used by Defendants

to perform Smart Lipo, published a study (the “manufacturer’s study”) that concluded that

“complications” from Smart Lipo included “some cases of asymmetry, hyper and hypo

correction.”

       70.     The manufacturer’s study concluded that “[t]he careful and judicious selection

and preparation of subjects” was “essential for the success and safety of the procedure.”

       71.     The manufacturer’s study reported that patient recovery required a full day of rest

in addition to the day of surgery and then consisted of a gradual return to normal activity: "after

the first post-operative date the patients gradually returned to normal daily activities, typically

with little discomfort."

Journal of Cosmetic and Laser Therapy

       72.     A scientific study published in 2008 in the JOURNAL OF COSMETIC AND LASER

THERAPY (the “JCLT study”) examined laser lipolysis and concluded that, “The safety concerns

that physicians must anticipate when employing new lasers include burns, purpura, scarring,

retinal and corneal damage, hyper- and hypopigmentation, necrosis, and nerve damage.”
        73.     The JCLT study specifically noted that, “[a]n additional safety concern is the

theoretical possibility of nerve damage.”

Expert Reviews of Medical Devices

        74.     A scientific study published in 2009 in the peer-reviewed journal EXPERT

REVIEWS OF MEDICAL DEVICES (the “ERMD study”) concluded that during laser lipolysis, “if the

physician moves too slowly or if the physician delivers the laser energy to a previously treated

location, the accumulated energy will be above the thermal damage threshold.”

        75.     The ERMD study determined that the effectiveness of laser lipolysis varies

according to the area of the body on which it was performed, as follows:

                ● Saddlebags and hips: only “partially effective”;

                ● Lower abdomen: only "partially effective" and “rarely advisable on its own

                because of the size of the area.”

                ● Inner-side of thigh: “partially effective to effective, depending on the type of

                cellulite.”

                ● Inner-thighs and inner-side of arms: “partially effective to very effective” but

                only “if moderate amounts of fat deposit.”

        76.     For the lower abdomen, inner-thighs, and inner-side of arms, the ERMD study

recommended that laser lipolysis be used in combination with traditional liposuction in order to

obtain satisfactory results.

        77.     The ERMD study noted that laser lipolysis patients “are required not to resume

physical activities (especially those involving mechanical shocks) for a minimum of 8 days.”
       78.       The ERMD study concluded that, “More research should be undertaken to

develop new types of monitoring and feedback technology required to optimize treatment safety

and efficacy.”

       79.       The facts set forth in paragraphs 64-78 of this Petition (collectively, the “scientific

research”) were facts that were likely to significantly influence a consumer’s decision to

purchase Smart Lipo from Defendants.

       80.       Defendants knew, and upon reasonable inquiry would know, the scientific

research.

       81.       Defendants failed to disclose the scientific research to Frost and (on information

and belief) to numerous Smart Lipo patients, and such conduct was omission of material facts as

defined by 15 CSR 60-9.110(3).

       82.       Defendants engaged in methods, acts, uses, and practices which operated to hide

and keep the scientific research from consumers, and this constituted concealment of material

facts as defined by 15 CSR 60-9.110(1). In the alternative, to the extent that the scientific

research was stated, Defendants engaged in methods, acts, uses and practices which were likely

to curtail and reduce the ability of consumers to take notice of the scientific research, and this

constituted suppression of material facts as defined by 15 CSR 60-9.110(2).

       83.       Defendants omitted the scientific research in their advertisements.

                                 Subramani’s Internet Advertising

       84.       At all times mentioned in this Petition, Subramani used an internet website (the

“internet advertisement”) to advertise to the general public his purported skill and experience

with Smart Lipo and to solicit Smart Lipo patients. A copy of relevant pages of the website are

attached as Exhibit B and incorporated into this Petition by reference.
       85.     In the internet advertisement, Subramani represented that he was “a Board

Certified Physician & Surgeon.” This was a false representation in that Subramani has never

been a board certified surgeon. Subramani had no reasonable basis to make this representation,

and Subramani was not in possession of information sufficient to form a reasonable belief that

this claim was true.

       86.     In the internet advertisement, Subramani represented that “Smart Lipo (TM) Body

Sculpting is a FDA approved procedure.” This was a false representation.

       87.     Cynosure, Inc., the company that manufactured the medical device used by

Defendants to perform Smart Lipo, had only a “clearance to market” the device based on a

“substantial equivalence determination” under the FDA premarket notification regulations.

Pursuant to 21 CFR 807.97, such a clearance expressly “does not in any way denote official

approval of the device” and “[a]ny representation that creates an impression of official approval

of a device because of complying with the premarket notification regulations is misleading and

constitutes misbranding.”

       88.     Subramani’s representation that Smart Lipo was FDA approved was

“misbranding” in violation of federal law. Subramani had no reasonable basis to make this

representation, and Subramani was not in possession of information sufficient to form a

reasonable belief that this claim was true.

       89.     Subramani intentionally omitted to disclose that Smart Lipo was not an FDA

approved procedure.

       90.     In the internet advertisement, Subramani represented that Smart Lipo has a

“[c]omplication rate of less than 1%.” (On information and belief) this was a false representation,

and it represented, implied, and created the pretense that Subramani’s Smart Lipo patients had a
complication rate of less than 1%. This was a false representation, Subramani had no reasonable

basis to make this representation, and Subramani was not in possession of information sufficient

to form a reasonable belief that this claim was true. Subramani omitted to disclose the actual

complication rate for his Smart Lipo patients, which (on information and belief) was

significantly higher that 1%.

        91.    In the internet advertisement, Subramani represented that Smart Lipo “results in

very smooth skin and permanent skin tightening.” This was a false representation, Subramani

had no reasonable basis to make this representation, and Subramani was not in possession of

information sufficient to form a reasonable belief that this claim was true.

        92.    In the internet advertisement, Subramani represented that Smart Lipo does not

result in “sagging skin” that “necessitates additional surgical procedures.” This was a false

representation, Subramani had no reasonable basis to make this representation, and Subramani

was not in possession of information sufficient to form a reasonable belief that this claim was

true.

        93.    In the internet advertisement, Subramani represented that Smart Lipo results in

“[t]ighter skin.” This was a false representation, Subramani had no reasonable basis to make this

representation, and Subramani was not in possession of information sufficient to form a

reasonable belief that this claim was true.

        94.    In the internet advertisement, Subramani represented that “I have created over

5000 lbs of total patient weight loss and over 1000 inches in total body fat reduction.” (On

information and belief) this was a false representation, Subramani had no reasonable basis to

make this representation, and Subramani was not in possession of information sufficient to form

a reasonable belief that this claim was true.
       95.     In the internet advertisement, Subramani represented that Smart Lipo patients

“[d]on't have to miss any work.” This was a false representation, Subramani had no reasonable

basis to make this representation, and Subramani was not in possession of information sufficient

to form a reasonable belief that this claim was true.

       96.     In the internet advertisement, Subramani included an anonymous testimonial from

a purported Smart Lipo patient (the “testimonial”). The testimonial constituted “assertions” as

defined by 15 CSR 60-9.010(A) and an “advertisement” as defined by Mo. Rev. Stat. §

407.010(1) and 15 CSR 60-7.010(A). The testimonial represented that within six weeks after

surgery, Smart Lipo patients could expect “a totally flattened stomach” with “all of the loose skin

tightened”:

               My lower abdomen was my main concern. I had SmartLipo on both my upper and

               lower abdomen, along with my inner thighs. The day of the procedure, Dr.

               Subramani and his staff made me feel very comfortable, calm, and prepared.

               It was only a short amount of time to see some results. Though, like any

               procedure, it takes a little time to fully heal. After just 4 weeks, the results were

               awesome. At my six week appointment, I could not believe the differences in my

               before and after photos. Dr. Subramani had totally flattened my stomach and

               almost all of my stretch marks were gone. I was amazed on how all of the

               loose skin had tightened.

       97.     The testimonial was a false representation and promise of the results of Smart

Lipo. Subramani omitted to disclose that the results of Smart Lipo vary, and he omitted to

disclaim that the results reported in the testimonial were not typical and were not a guarantee.
       98.     In the internet advertisement, Subramani presented “before-and-after”

photographs that he represented to depict the results of Smart Lipo (the “photographs”). The

photographs constituted “assertions” as defined by 15 CSR 60-9.010(A) and an “advertisement”

as defined by Mo. Rev. Stat. § 407.010(1) and 15 CSR 60-7.010(A).

       99.     The photographs made a false representation and promise of the results of Smart

Lipo, Subramani had no reasonable basis to make this representation and promise, and

Subramani was not in possession of information sufficient to form a reasonable belief that this

claim was true. Subramani omitted to disclose that the results of Smart Lipo vary, and he omitted

to disclaim that the results shown in the photographs were not typical and not a guarantee.

       100.    In the internet advertisement, Subramani represented that after undergoing Smart

Lipo, “[i]f you gain weight it will be distributed over other areas of the body.” (On information

and belief) this was a false representation, Subramani had no reasonable basis to make this

representation, and Subramani was not in possession of information sufficient to form a

reasonable belief that this claim was true.

       101.    In the internet advertisement, Subramani represented that, “Smart Lipo offers the

best body contouring results.” This was a false representation, Subramani had no reasonable

basis to make this representation, and Subramani was not in possession of information sufficient

to form a reasonable belief that this claim was true.

       102.    In the internet advertisement, Subramani represented that, “Smart Lipo (TM) is a

safe, smart, and highly effective alternative to traditional liposuction.” This was a false

representation in that Smart Lipo is neither safe nor highly effective. Subramani had no

reasonable basis to make this representation, and Subramani was not in possession of

information sufficient to form a reasonable belief that this claim was true.
       103.    In the internet advertisement, Subramani represented that, “[t]he procedure is

done under local anesthesia, whereby patients are awake and comfortable free of pain.” This was

a false representation in that Subramani’s patients report experiencing pain during the Smart

Lipo procedure. When this occurs, Subramani states that it is normal and indicates that the

procedure is being done effectively. Subramani had no reasonable basis represent that Smart

Lipo is “free of pain,” and Subramani was not in possession of information sufficient to form a

reasonable belief that this claim was true.

       104.    In the internet advertisement, Subramani represented that Smart Lipo results in

“No stitches, scars, or big incisions.” This was a false representation in that Smart Lipo

sometimes results in scarring, as described more fully above. Subramani had no reasonable basis

to make this representation, and Subramani was not in possession of information sufficient to

form a reasonable belief that this claim was true.

       105.    In the internet advertisement, Subramani represented that, "I was trained under

one of the leading authorities in Smart Lipo, Dr. Todd Malan." The crux of this representation is

that Subramani was trained in liposuction surgery by a surgeon who was competent and qualified

to provide such training. This was a false representation, as described more fully above.

Subramani had no reasonable basis to make this representation, and Subramani was not in

possession of information sufficient to form a reasonable belief that this claim was true.

       106.    In the internet advertisement, Subramani stated that he was a member of the

American Society of Bariatric Physicians, and he represented, implied, and created the pretense

that this membership was a qualification to perform Smart Lipo surgery. In fact, this organization

is not recognized by the American Board of Medical Specialty; it has an open membership and

grants membership without testing or certification; and the organization is self-described as “the
primary source for clinical education and training for the non-surgical medical management of

obesity.” Subramani’s representation that membership in this organization was a qualification to

perform Smart Lipo surgery was a false representation, Subramani had no reasonable basis to

make this representation, and Subramani was not in possession of information sufficient to form

a reasonable belief that this claim was true.

        107.   In the internet advertisement, Subramani represented that he was a member of the

"American Society of Cosmetic Physicians," and he represented, implied, and created the

pretense that this membership was a qualification to perform Smart Lipo surgery. In fact, this

organization is not recognized by the American Board of Medical Specialty, and it is not a

legitimate or recognized medical organization. Subramani’s representation that membership in

this organization was a qualification to perform Smart Lipo surgery was a false representation,

Subramani had no reasonable basis to make this representation, and Subramani was not in

possession of information sufficient to form a reasonable belief that this claim was true.

        108.   In the internet advertisement, Subramani represented that he operated a “Premier

Body Sculpting Center.” This constitutes advertising that claims professional superiority to and

greater skill than that possessed by other physicians. (On information and belief) this was a false

representation, Subramani had no reasonable basis to make this representation, and Subramani

was not in possession of information sufficient to form a reasonable belief that this claim was

true.

                                   SKIN Rx Print Advertising

        109.   At all times mentioned in this Petition, Defendants advertised for Smart Lipo

patients using widely-circulated print media. A copy of one of Defendants advertisements (the

“print advertisement”) is attached as Exhibit C and incorporated into this Petition by reference.
         110.   The print advertisement was published in central Missouri during the third quarter

of 2009 in a magazine that was delivered to 25,000 businesses and individual households.

         111.   (On information and belief) Defendants regularly and repeatedly published

similar advertisements, including advertisements containing “before-and-after” photographs that

Defendants represented to depict the results of Smart Lipo and that made a false representation

and promise of the results of Smart Lipo for which Defendants had no reasonable basis and as to

which Defendants were not in possession of information sufficient to form a reasonable belief of

truth.

         112.   In the print advertisement, Defendants represented that Smart Lipo “is a FDA

approved procedure.” As described above, this was a false representation and a misbranding in

violation of federal law. Defendants had no reasonable basis to make this representation, and

Defendants were not in possession of information sufficient to form a reasonable belief that this

claim was true.

         113.   Defendants intentionally omitted to disclose that Smart Lipo was not an FDA

approved procedure.

         114.   The print advertisement represented that after undergoing Smart Lipo, a patient

will have “[s]mooth skin.” This was a false representation, Defendants had no reasonable basis to

make this representation, and Defendants were not in possession of information sufficient to

form a reasonable belief that this claim was true.

         115.   The print advertisement represented that Smart Lipo “[o]ffers the best body

contouring results." This was a false representation, Defendants had no reasonable basis to make

this representation, and Defendants were not in possession of information sufficient to form a

reasonable belief that this claim was true.
        116.   The print advertisement represented that "[i]f you gain weight it will be

distributed over other areas of the body." (On information and belief) this was a false

representation, Defendants had no reasonable basis to make this representation, and Defendants

were not in possession of information sufficient to form a reasonable belief that this claim was

true.

        117.   The print advertisement represented that "Smart Lipo is a safe, smart, and highly

effective alternative to traditional liposuction." This was a false representation in that Smart Lipo

is neither safe nor highly effective. Defendants had no reasonable basis to make this

representation, and Defendants were not in possession of information sufficient to form a

reasonable belief that this claim was true.

        118.   The print advertisement represented that after undergoing Smart Lipo, a patient

will have “[n]o scars.” This was a false representation, Defendants had no reasonable basis to

make this representation, and Defendants were not in possession of information sufficient to

form a reasonable belief that this claim was true.

        119.   The print advertisement represented that Subramani "has created over 5000 lbs of

total patient weight loss and over 1000 inches in total body fat reduction." (On information and

belief) this was a false representation, Defendants had no reasonable basis to make this

representation, and Defendants were not in possession of information sufficient to form a

reasonable belief that this claim was true.

        120.   The print advertisement represented that Subramani “specializes” in “Body

Sculpting procedures." This was a false representation in that Subramani’s actual specialty was

in non-surgical medicine, and he did not have a surgical specialty. Defendants had no reasonable
basis to make this representation, and Defendants were not in possession of information

sufficient to form a reasonable belief that this claim was true.

                                      Television Advertising

       121.    (On information and belief) Defendants have advertised for Smart Lipo patients

using television advertising that made representations identical to, or substantially similar to, the

representations made in the print advertisement and the internet advertisement (described above).

                                  Unlawful Practices as to Frost

       122.    Initially, Frost was a retail client of SKIN Rx who purchased cosmetic makeup

from SKIN Rx.

       123.    Sometime during the second quarter of 2009, Rackers sold Frost a $1,200 skin

care procedure that required multiple treatments over a period of weeks.

       124.    During one of Frost’s skin care treatments, Rackers began to solicit Frost for

Smart Lipo. Rackers made the same representations to Frost in person as were made in the print

advertisement and the internet advertisement, and Rackers invited Frost to attend a group sales

presentation for Smart Lipo at the SKIN Rx office. Rackers urged Frost to “sign up soon”

because attendance was limited to 25 persons.

       125.    One of Frost’s skin care treatments was cancelled, and the reason given to Frost

was because Rackers had “undergone a procedure” and was recovering at home. At the time,

Frost was unaware that the procedure was Smart Lipo.

       126.    During one of Frost’s facial treatments, Rackers represented to Frost that Rackers

had undergone Smart Lipo and that as a direct result, Rackers lost 20 pounds and “four pant

sizes.” Rackers represented to Frost that Smart Lipo was so minor in nature that Rackers “didn’t
miss a day of work” after the surgery. At the time, Frost failed to recognize that this was a false

representation in that Rackers missed work on the day she cancelled Frost’s treatment.

The Group Sales Presentation

       127.    Eventually, Frost signed up for the group sales presentation, which occurred

sometime in April of 2009. There were more people in attendance than seats available, and

several attendees stood throughout the sales presentation, which consisted of the same

representations as were made in the print advertisement and the internet advertisement, including

that Smart Lipo would produce immediate weight loss and that the weight could not be gained

back. Members of Subramani’s staff from his Cape Girardeau office were in attendance, but

Subramani was not.

       128.    During the group sales presentation, Rackers announced that she had undergone

Smart Lipo, and she repeated her representation that the procedure immediately reduced her

body weight by 20 pounds and her body size by “4 dress sizes.” (On information and belief) this

was a false representation, Rackers had no reasonable basis to make this representation, and

Rackers was not in possession of information sufficient to form a reasonable belief that this

claim was true.

       129.    During the group sales presentation, Rackers represented that a reduction in body

weight by 20 pounds and in body size by “4 dress sizes” was a typical result and that all Smart

Lipo patients could expect a comparable result. This was a false representation, Rackers had no

reasonable basis to make this representation, and Rackers was not in possession of information

sufficient to form a reasonable belief that this claim was true.

       130.    Rackers omitted to disclose that the results of Smart Lipo vary, and she omitted to

disclaim that her results were not typical and not a guarantee.
       131.    During the group sales presentation, Rackers displayed “before-and-after”

photographs that she represented to be her own. The photographs constituted “assertions” as

defined by 15 CSR 60-9.010(A) and an “advertisement” as defined by Mo. Rev. Stat. §

407.010(1) and 15 CSR 60-7.010(A). Rackers represented that the results shown in the

photographs were typical and that all Smart Lipo patients could expect a comparable result. This

was a false representation, Rackers had no reasonable basis to make this representation, and

Rackers was not in possession of information sufficient to form a reasonable belief that this

claim was true.

       132.    During the group sales presentation, Rackers represented that there was “no down

time” after her surgery and that she did not miss a single day of work as a result of the surgery.

This was a false representation in that Rackers missed work on the day that she cancelled Frost’s

facial treatment. Rackers had no reasonable basis to make this representation, and Rackers was

not in possession of information sufficient to form a reasonable belief that this claim was true.

       133.    During the group sales presentation, Rackers represented that Subramani was “an

excellent surgeon.” This was a false representation, as shown throughout this Petition. Rackers

had no reasonable basis to make this representation, and Rackers was not in possession of

information sufficient to form a reasonable belief that this claim was true.

The Private Consultation

       134.    Shortly after the group sales presentation, Frost agreed to a private “consultation”

with Rackers on April 30, 2009, concerning Frost’s suitability for Smart Lipo. In fact, Rackers

had no medical training, no basis to evaluate the suitability of Frost as a candidate for surgery,

and no basis to inform Frost adequately concerning the medical risks, benefits, alternative

treatments, and risk of electing no treatment. The consultation was nothing but a sales pitch for
Smart Lipo, during which Rackers told Frost that on the weekend beginning May 1, 2009,

Subramani would be performing Smart Lipo at the SKIN Rx office and that there were a limited

number of Smart Lipo surgeries available.

       135.    Rackers instructed Frost to bring $5,200 to the consultation, as a non-refundable

payment. When Frost later had second thoughts about proceeding with Smart Lipo, the

purportedly non-refundable nature of her deposit caused her to proceed.

       136.    During the consultation with Rackers, Frost told Rackers that she did not know

what to expect if she underwent Smart Lipo. Rackers replied, “I'll show you what the

expectations are," and then Rackers showed Frost impressive “before-and-after” photographs

that Rackers represented to be patients of SKIN Rx who had undergone Smart Lipo. Rackers

omitted to disclose that the results of Smart Lipo vary, and she omitted to disclaim that the

results shown were not typical and not a guarantee. The photographs constituted “assertions” as

defined by 15 CSR 60-9.010(A) and an “advertisement” as defined by Mo. Rev. Stat. §

407.010(1) and 15 CSR 60-7.010(A). Rackers represented that the results depicted in the

photographs were typical and that Frost could expect a comparable result. This was a false

representation, as shown throughout this Petition. Rackers had no reasonable basis to make this

representation, and Rackers was not in possession of information sufficient to form a reasonable

belief that this claim was true.

       137.    During the consultation, Frost asked Rackers what would happen to her skin if a

significant amount of fat were to be removed. Frost explained that she was concerned that her

skin might remain loose and unattractive. Rackers represented to Frost that this concern was

unfounded and said, “Your skin will tighten right back up.” This was a false representation,
Rackers had no reasonable basis to make this representation, and Rackers was not in possession

of information sufficient to form a reasonable belief that this claim was true.

       138.    During the consultation, Frost expressed interest in undergoing Smart Lipo on her

upper and lower abdomen. Rackers told Frost that if Frost purchased additional Smart Lipo on

other areas of her body, the additional Smart Lipo would be provided at a discount. Rackers said

something to the effect that, “the more you do the cheaper it is,” and she attempted to sell Frost

additional surgery to be performed in the areas of Frost’s chin and bra-line, with a total cost of

$8,500. Frost told Rackers that she could afford to pay no more than $7,200.

       139.    At the conclusion of the consultation with Rackers, Frost agreed to proceed with

Smart Lipo on her upper and lower abdomen at a cost of $5,200, and Rackers scheduled Frost to

undergo Smart Lipo three days later, on the afternoon of Sunday, May 3, 2009. Rackers told

Frost that if she would bring an additional $2,000 on the day of her surgery, SKIN Rx would

open a “Care Credit” revolving credit account for Frost and charge the balance of $1,300 to the

account so that Frost could obtain all of the Smart Lipo that Rackers had recommended to her.

Rackers told Frost that this would, “save you a lot of money.”

       140.    Prior to the date of her surgery, Frost visited Subramani’s internet website and

viewed the information included in Exhibit B.

                                 Frost’s Smart Lipo Procedure

       141.    At the appointed time on May 3, 2009, Frost came to the SKIN Rx office to

undergo Smart Lipo. Approximately five minutes before the surgery, Frost met Subramani for

the first time. Subramani made no attempt to obtain or verify Frost’s informed consent to the

surgery. Instead, when he learned that Frost intend to purchase only the $5,200 of Smart Lipo for
which she had already paid in full, Subramani attempted to “up sell” Frost to the $8,500 surgery

that had been priced by Rackers.

       142.    At Subramani’s insistence, Frost eventually relented and agreed that her husband

would bring an additional $2,000 cash when he came to pick her up after the surgery. When

Frost protested that she could not afford to pay the remaining $1,300, Subramani said, “I’ll do

it—you can pay later.”

       143.    Immediately thereafter, Subramani performed the Smart Lipo surgery on Frost in

a non-sterile room.

       144.    Subramani at all times unequivocally encouraged Frost to undergo Smart Lipo,

and at no time did Subramani make any effort to obtain Frost’s informed consent to the surgery;

instead, Subramani joined in what amounted to a sales pitch for the surgical procedure, in which

he acted as the “closer” and in which he “upsold” Frost additional and more expensive surgery

minutes before the procedure began.

       145.    During the surgery, a machine was used to infiltrate Frost with a solution that (on

information and belief) contained lidocaine.

       146.    Subramani had difficulty operating the machine and as a result, he was unable to

control the amount of solution used to infiltrate Frost. This created a substantial risk of a

potentially lethal lidocaine overdose. Frost experienced a deep chill, and the solution spilled out

onto the operating table, causing Frost to ask, “What’s wrong?” An attendant wrapped a towel

around Frost, which Subramani ordered to be removed because it was not sterile.

       147.    The Smart Lipo performed on Frost was inappropriate, unnecessary, and not

performed in a competent manner.
                                    Frost’s Smart Lipo Results

          148.   The results of Frost’s Smart Lipo were completely unsatisfactory and not in

accord with the representations and promises made by Defendants.

          149.   Frost experienced no improvement in her contour.

          150.   Frost lost no weight.

          151.   Frost experienced no appreciable reduction in body size or clothing size.

          152.   As a direct result of the Smart Lipo, Frost suffered a permanent nerve injury in the

area of her stomach, and as a result Frost experiences continuous numbness in the area of the

injury.

          153.   As a direct result of the Smart Lipo, Frost’s abdomen has a disfigured,

“cobblestone” appearance.

          154.   As a direct result of the Smart Lipo, Frost has a disfigured, asymmetric contour,

particularly at her stomach and hips.

          155.   In order to correct the cosmetic damage caused by Defendants, Frost will require

a revision of her liposuction by a competent plastic surgeon.

          156.   When Frost complained to Rackers that she had experienced a negative outcome

from the surgery, Rackers represented to Frost that Frost needed to “wait three months for a good

result” and that the final result would not be apparent for six months. This was a false

representation, Rackers had no reasonable basis to make this representation, and Rackers was not

in possession of information sufficient to form a reasonable belief that this claim was true.

Furthermore, this representation contradicted Defendants’ prior representations that “[t]he fat

reduction and recontouring of the body is immediate and permanent.” See Exhibit B and Exhibit

C.
       157.    Eventually, Rackers scheduled Frost for a follow up office visit on May 21, 2010,

at which time Subramani examined Frost, took photographs, and admitted to Frost that “it didn't

exactly turn out like we hoped.”

       158.    Subramani suggested that he could “redo” Frost if Frost paid the balance due on

her account, but he said that he needed approval from Rackers. No one from SKIN Rx ever

called Frost back about the matter.

                                   Other Smart Lipo Patients

       159.    For some of the Smart Lipo patients (but, on information and belief, not for

Frost), Rackers prepared a form entitled Recommended Weight Loss and Body Sculpting Plan, on

which Rackers recommended the purchase of Smart Lipo. (On information and belief) Rackers

never recommended simple weight loss through diet and exercise, even where this would have

been medically appropriate, and she regularly recommended Smart Lipo to Smart Lipo patients

who were not good candidates for the procedure.

       160.    Some of the Smart Lipo patients (but, on information and belief, not Frost) were

required by Defendants to sign an information sheet. A copy of the information sheet is attached

as Exhibit D and incorporated herein by reference.

       161.    The information sheet represented that “smart lipo is safer than other liposuction

techniques.” (On information and belief) this was a false representation, Defendants had no

reasonable basis to make this representation, and Defendants were not in possession of

information sufficient to form a reasonable belief that this claim was true.

       162.    The information sheet represented that “[t]here may be minor skin irregularities

initially, but all irregularities improve and diminish by 3 months.” This was a false representation

in that the skin irregularities can be significant and even untreatable, and they can be permanent.
Defendants had no reasonable basis to make this representation, and Defendants were not in

possession of information sufficient to form a reasonable belief that this claim was true.

       163.    The information sheet represented that “[m]ost patients can actually see some

improvement of their silhouette within one week after surgery.” This was a false representation,

Defendants had no reasonable basis to make this representation, and Defendants were not in

possession of information sufficient to form a reasonable belief that this claim was true.

       164.    The information sheet represented that “the results of liposculpture are often quite

spectacular.” This was a false representation in regard to the qualifier “often.” Defendants had no

reasonable basis to make this representation, and Defendants were not in possession of

information sufficient to form a reasonable belief that this claim was true.

       165.    The information sheet represented that “[p]atients who would be satisfied with a

50% improvement would be reasonably good candidates for liposculpture/smart lipo. . . . [t]he

50% improvement. . . indicates a definite perceptible improvement of something.” This was a

false representation in that Smart Lipo, when performed by Defendants, did not reliably produce

either a 50% improvement or a definite perceptible improvement, and Smart Lipo, when

performed by Defendants, frequently produced a negative result, as described more fully above.

Defendants had no reasonable basis to make this representation, and Defendants were not in

possession of information sufficient to form a reasonable belief that this claim was true.
                                        Defined Elements

Materiality – 15 CSR 60-9.010(C) & 15 CSR 60-7.010(G)

       166.    The facts alleged above to have been falsely represented by Defendants (the

“represented facts”) were facts that significantly influenced Frost and (on information and belief)

numerous Smart Lipo patients when making the decision to purchase Smart Lipo.

       167.    The facts alleged above to have been omitted by Defendants (the “omitted facts”)

were facts that, if disclosed, would have significantly influenced Frost and (on information and

belief) numerous Smart Lipo patients when making the decision to purchase Smart Lipo.

       168.    The represented facts were facts that Frost and (on information and belief)

numerous Smart Lipo patients reasonably considered to be important when deciding whether to

purchase Smart Lipo.

       169.    The omitted facts were facts that, if disclosed, Frost and (on information and

belief) numerous Smart Lipo patients would have reasonably considered to be important when

deciding whether to purchase Smart Lipo.

       170.    The represented facts reasonably induced Frost and (on information and belief)

numerous Smart Lipo patients to manifest assent to purchase Smart Lipo from Defendants.

       171.    Defendants knew that the represented facts were likely to induce Frost and all

reasonable Smart Lipo patients to manifest assent to purchase Smart Lipo from Defendants in an

uninformed manner and to undergo Smart Lipo surgery without giving informed consent.

       172.    Defendants knew that the represented facts were likely to induce Frost and all

reasonable Smart Lipo patients not to elect a “no treatment” option and not to elect traditional

liposuction or an alternative treatment to Smart Lipo.
Advertisement – Mo. Rev. Stat. § 407.010(1) & 15 CSR 60-7.010(A)

       173.    As described above, Defendants directly and indirectly engaged in acts of

publication, dissemination, solicitation, circulation, and other means to induce Frost and

numerous Smart Lipo patients to purchase Smart Lipo from Defendants.

       174.    As described above, Defendants made oral, written, graphic, and pictorial

statements in the course of the solicitation of Smart Lipo business.

Sale – Mo. Rev. Stat. § 407.010(6)

       175.    As described above, Defendants sold, offered for sale, and attempted to sell Smart

Lipo for cash and on credit.

Trade and Commerce – Mo. Rev. Stat. § 407.010(7)

       176.    As described above, Defendants engaged in the advertising, offering for sale, sale,

and combination thereof, of Smart Lipo.

Deception – 15 CSR 60-9.020 & 15 CSR 60-9.030

       177.    The Defendants’ methods, acts, uses, practices, advertisements, and solicitations

described above had the tendency and capacity to mislead, deceive and cheat, and tended to

create a false impression; and the Defendants’ advertisements and sales presentations described

above used a format which because of their overall appearance had the tendency and capacity to

mislead Frost and numerous Smart Lipo patients.

False Pretense – 15 CSR 60-9.050

       178.    As described above, Defendants used deception and false and fraudulent

representation, statement, pretense, instrument, and device with the intent to defraud.
False Promise – 15 CSR 60-9.060

         179.   As described above, Defendants’ statements and representations were false and

misleading as to Defendants’ intention and ability to perform their promises regarding Smart

Lipo and as to the likelihood that such promises would be performed.

Misrepresentation – 15 CSR 60-9.070 & 15 CSR 60-9.090

         180.   As described above, Defendants made assertions that were not in accord with the

facts.

         181.   As described above, Defendants, in connection with the advertisement and sale of

Smart Lipo, made statements that were misleading in light of the circumstances under which

they were made and omitted to state material facts necessary to make their statements not

misleading.

Fraudulent Assertions – 15 CSR 60-9.100

         182.   As described above, Defendants made assertions in connection with the

advertisement and sale of Smart Lipo and Defendants intended these assertions to induce Frost

and numerous Smart Lipo patients to purchase Smart Lipo; and Defendants knew and believed

that their assertions were not in accord with the facts and Defendants knew that they did not have

a reasonable basis for the assertions.

Unfair Practice in General – 15 CSR 60-8.020

         All Defendants

         183.   As described above, Defendants’ conduct was unethical, oppressive, and

unscrupulous, and it presented a risk of, and caused, substantial injury to Frost, to other Smart

Lipo patients, and (on information and belief) numerous Smart Lipo patients.
       184.     As described above, Defendants’ misbranding of Smart Lipo as an “FDA

approved procedure” offended public policy as it has been established by 21 CFR 807.97.

       Subramani Only

       185.     As described above, Subramani obtained and attempted to obtain fees, charges,

and other compensation by fraud, deception, and misrepresentation.

       186.     As described above, Subramani willfully overcharged and overtreated Frost; (on

information and belief) Subramani willfully and continually overcharged the Smart Lipo patients

as a group.

       187.     As described above, Subramani attempted, directly and indirectly, by way of

deception, to obtain and retain patients and to discourage the use of a second opinion and

consultation.

       188.     As described above, Subramani performed inappropriate and unnecessary

treatment and medical and surgical services on Frost; (on information and belief) Subramani

willfully and continually performed inappropriate and unnecessary treatment and medical and

surgical services on the Smart Lipo patients as a group.

       189.     As described above (and on information and belief), Subramani delegated

professional responsibility to Rackers for medical consultation, pre-operative care, surgical

assistance, post-operative care, and Rackers was not qualified to carry out such responsibilities

by training, skill, competency, age, experience, or licensure.

       190.     As described above, Subramani conducted advertising that was false and

misleading.

       191.     As described above, Subramani conducted advertising that claimed professional

superiority to and greater skill than that possessed by other physicians.
       192.    (On information and belief) Subramani had a financial interest in SKIN Rx, which

issued and conducted advertising that claimed for Subramani professional superiority to and

greater skill than that possessed by other physicians.

       193.    As described above, Subramani impersonated a person holding a certificate as a

board certified surgeon.

       194.    As described above, Subramani used and permitted the use of his name under the

designation of "Doctor", "Dr.", and "M.D." with reference to the commercial exploitation of

Smart Lipo surgery by SKIN Rx.

       195.    Subramani’s practices, identified in paragraphs 184-190 of this Petition, offended

public policy as it has been established by Mo. Rev. Stat. § 334.100.

Concealment, Suppression, and Omission of Material Facts – 15 CSR 60-9.110

       196.    As described above, Defendants engaged in methods, acts, uses, and practices

which operated to hide and keep material facts from Frost and numerous Smart Lipo Patients.

       197.    As described above, Defendants engaged in methods, acts, uses, and practices

which were likely to curtail and reduce the ability of Frost, and numerous Smart Lipo Patients, to

take notice of material facts which were stated by Defendants.

       198.    As described above, Defendants failed to disclose material facts known to them

and that upon reasonable inquiry would be known to them.

       199.    As described above, Defendants omitted material facts in their advertisements.

Unlawful Practices – Mo. Rev. Stat. 407.020

       200.    As described throughout this Petition, Defendants engaged in the act, use, and

employment of the unlawful practices of deception, false pretense, false promise,

misrepresentation, unfair practices, and concealment, suppression, and omission of material
facts; and such conduct occurred in connection with the sale and advertisement of Smart Lipo in

trade and commerce in and from the state of Missouri.

                           First Claim – Individual Consumer Fraud

       Frost incorporates by reference all preceding paragraphs of this Petition and pleads this

First Claim pursuant to Mo. Rev. Stat. § 407.025.1.

       201.    Frost purchased Smart Lipo primarily for personal purposes.

       202.    The Smart Lipo was worthless, had no value, was not as represented by

Defendants, did not produce the results promised by Defendants, and, in fact, permanently

damaged and disfigured Frost.

       203.    Frost thereby suffered an ascertainable loss of $7,200.

       204.    Frost’s loss was as a result of the use and employment by Defendants of

deception, false pretense, false promise, misrepresentation, unfair practices, and the concealment,

suppression, and omission of material facts, all as set forth more fully above.

       205.    Defendants’ conduct alleged in this First Claim was willful, malicious,

outrageous, and showed an evil motive and reckless indifference to the rights of Frost.

       WHEREFORE, Frost prays that this Court enter judgment in her favor against each

Defendant, in an amount exceeding $25,000, as follows:

               A.      Awarding Frost her actual damages in an amount which is fair and

               reasonable;

               B.      Awarding Frost punitive damages;

               C.      Awarding Frost attorney's fees, based on the amount of time reasonably

               expended;

               D.      Awarding Frost the costs of this action; and
                 E.     Ordering such equitable relief as this Court deems necessary and proper.

                         Second Claim – Special Consumer Class Action

       Frost incorporates by reference all preceding paragraphs of this Petition and pleads this

Second Claim pursuant to Mo. Rev. Stat. § 407.025.2.

       206.      As alleged in the First Claim of this Petition (the “First Claim”), Frost is entitled

to bring an action pursuant to Mo. Rev. Stat. § 407.025.1.

       207.      The unlawful methods, acts and practices alleged in the First Claim to have

caused injury to Frost, have caused similar injury to at least three other Smart Lipo Patients

known to Frost, and (on information and belief) have caused similar injury to numerous Smart

Lipo patients.

       208.      Pursuant to Mo. Rev. Stat. § 407.025.2, Frost institutes this Second Claim as

representative of the class of Smart Lipo Patients.

       209.      Frost has been fairly chosen and will adequately and fairly represented the whole

class of Smart Lipo Patients to recover damages as provided for in Mo. Rev. Stat. § 407.025.1.

       210.      Defendants’ conduct alleged in this Second claim was willful, malicious,

outrageous, and showed an evil motive and reckless indifference to the rights of numerous Smart

Lipo patients.

       WHEREFORE, Frost prays that this Court determine by order that this action is to be

maintained as a class action on behalf of all Smart Lipo patients pursuant to Mo. Rev. State. §

407.025.2 and enter judgment in favor of each member of the class against each Defendant as

follows:

                 A.     Awarding each class member actual damages in an amount which is fair

                 and reasonable;
                 B.     Awarding each class member punitive damages;

                 C.     Awarding each class member attorney's fees, based on the amount of time

                 reasonably expended;

                 D.     Awarding each class member the costs of this action; and

                 E.     Ordering an injunction and such equitable relief as this Court deems

                 necessary and proper.

                                 Third Claim – Ordinary Class Action

        Frost incorporates by reference all preceding paragraphs of this Petition and—in the

alternative to her Second Claim—pleads this Third Claim pursuant to Mo. Rev. Stat. §

407.025.3.

        211.     The class of Smart Lipo Patients is so numerous that joinder of all members is

impracticable.

        212.     There are questions of law common to the class of Smart Lipo Patients

concerning the application of Mo. Rev. Stat. § 407.025.1 to Defendants.

        213.     There are questions of fact common to the class of Smart Lipo Patients

concerning the advertising conducted by Defendants.

        214.     The claims of Frost are typical of the claims of the class of Smart Lipo Patients in

that all members of the class purchased Smart Lipo based on the advertising by Defendants that

is described in this Petition.

        215.     Frost will fairly and adequately protect the interests of the class of Smart Lipo

Patients.

        216.     The prosecution of separate actions by each member of the class of Smart Lipo

Patients would create a risk of inconsistent and varying adjudications with respect to individual
members of the class of Smart Lipo Patients which would establish incompatible standards of

conduct for Defendants.

        217.     Adjudications with respect to Frost would as a practical matter be dispositive of

the interests of the other members of the class of Smart Lipo Patients and substantially impair

and impede their ability to protect their interests.

        218.     Defendants have acted and refused to act on grounds generally applicable to the

class of Smart Lipo Patients.

        219.     The questions of law and fact common to the members of the class of Smart Lipo

Patients predominate over any questions affecting only individual members.

        220.     A class action is superior to other available methods for the fair and efficient

adjudication of the controversy.

        221.     The members of the class of Smart Lipo Patients have little or no interest in

individually controlling the prosecution of separate actions.

        222.     There is limited litigation concerning the controversy already commenced by

members of the class.

        223.     It is desirable to concentrate the litigation of the claims in the Circuit Court of

Boone County, Missouri.

        224.     There are no unusual or burdensome difficulties likely to be encountered in the

management of a class action.

        225.     Defendants’ conduct alleged in this Third claim was willful, malicious,

outrageous, and showed an evil motive and reckless indifference to the rights of numerous Smart

Lipo patients.
       WHEREFORE, Frost prays that this Court determine by order, pursuant to Mo. Rev. Stat.

§ 407.025.3, that this action is to be maintained as a class action in a manner consistent with

Rule 23 of the Federal Rules of Civil Procedure and Missouri rule of civil procedure 52.08 to the

extent such state rule is not inconsistent with the federal rule, and enter judgment in favor of each

member of the class against each Defendant as follows:

               A.      Awarding each class member actual damages in an amount which is fair

               and reasonable;

               B.      Awarding each class member punitive damages;

               C.      Awarding each class member attorney's fees, based on the amount of time

               reasonably expended;

               D.      Awarding each class member the costs of this action; and

               E.      Ordering an injunction and such equitable relief as this Court deems

               necessary and proper.



                                                               Brown Law Office LC


                                                               _____________________________
                                                               David G. Brown #42559
                                                               501 Cherry Street, Suite 100
                                                               Columbia, MO 65201
                                                               Tel: (573) 814-2375
                                                               Fax: (800) 906-6199
                                                               dbrown@brown-law-office.com

                                                               Attorney for Plaintiff
Exhibit   A
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Exhibit   B
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Exhibit   B
Exhibit   B
Exhibit   B
Exhibit   B
Exhibit   B
Exhibit   B
Exhibit   B
Exhibit   C

								
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