Daniel S. Gamer (14652) Geena Arata (17512) THE GARNER LAW FIRM 370 E, South Temple, Suite 200 Salt Lake City, Utah 84111 Telephone: (801) 849-9300 Email: [email protected] ‘[email protected] Attorneys for Plaintiff IN THE THIRD JUDICIAL DISTRICT COURT IN AND FOR SALT LAKE COUNTY, STATE OF UTAH, ALEXIS NELSON, COMPLAINT AND JURY DEMAND Plaintiff, Tier Three vs. DR. CHRISTOPHER KELLY, ELITE BODY Judge SCULPTURE: and JOHN DOES #1-5, Case No, Defendants, Plaintiff Alexis Nelson, by and through her counsel, Daniel S. Gamer and Geena Arata of The Gamer Law Firm, hereby submit this complaint, wherein she alleges against Defendants as follows: PARTIES 1, Plaintiff Alexis Nelson is an individual who resides in Salt Lake County, Utah 2. Defendant Dr. Christopher Kelly, upon information and belief, resides in Salt Lake County, Utah. 3. Defendant Elite Body Sculpture is located in Salt Lake County, Utah.4. Upon information and belief, Defendants John Does #1-5, were employed by. agents of, or contractors of Elite Body Sculpture who reside in Salt Lake County, Utah, JURISDICTION AND VENU 5. This action arose in Salt Lake County, Utah as the alleged negligent actions of Defendants described herein were provided in Salt Lake County, State of Utah. 6. This Court has jurisdiction over the matter pursuant to Utah Code §78A-5-102. 7. Venue is proper in this court pursuant to Utah Code Ann. § 78B-3-304. PROCEDURAL REQUIREMENTS 8 In accordance with Utah Code Ann. §78B-3-412, on or about April 5, 2023, Plaintiff served a written Notice of Intent to Commence Action on Elite Body Sculpture. Similarly, and in compliance with the same statute, Plaintiff served a Written Notice of Intent to Commence Action on Dr. Christopher Kelley on or about July 1, 2023. A prelitigation panel review was held on July 19, 2023. On August 11, 2023, the Department of Occupational and Professional Licensing Division issued Plaintiff a certification that all requirements set forth in Utah Code §78B-3-418 and 78B-3-423 had been satisfied, EACTUAL ALLEGATIONS 9. Plaintiff incorporates by reference all allegations of this complaint as though fully restated herein, 10. Elite Body Sculpture advertised their AirSculpting procedure as less invasive than liposuction, having little down time, no scarring or “only a mark similar to a freckle or natural skin blemish”, with no need for general anesthesia, 11, Defendant Bite Body Sculpture fled to wam Plant of potential side effets of the AirSculping procedure including pernaneat scaring, bums, swelling and pain associated with “the AirScupt procedure, 212. After a consultation on April 7, 2022, Alexis Nelson elected to receive an AirSculpting cosmetic procedure as advertised. effects including permanent scarring, bums, swelling, and pain. 14, On August 8, 2022, Plaintiffreceived AirSculpting procedures on her abdomen, back, and stomach, 15, Upon information and belie ‘hot far above a safe operating temperature, 16. Upon information and belie, Plant was bum “fom the aside out” asthe overty "hot laser moved fat unde he skin, 17, The AirSculpt procedure was performed by Dr. Christopher P. Kelly at Elite Body the laser used to remove fat from these areas was too) Sculptures located at 6640 Wasatch Blvd, Suite 235 Salt Lake City, Utah 84121 18. Defendant Elite Body Sculpture hired or contracted with Defendant Dr. Kelly to perform the AirSeulpt procedure. 19. Defendant Elite Body Sculpture failed to properly monitor Defendant Dr. Kelly’s compliance with the standard of care in his performance of AirSculpt procedures. 20. Defendant Elite Body Sculpture provided the medical equipment for the procedure. 21. Defendant Elite Body Sculpture failed to maintain the equipment used in AirSculpt procedures. 22. Defendant Elite Body Sculpture failed to inspect their equipment regularly for temperature control defects or other failures 23. Defendant Elite Body Sculpture failed to train and manage their medical staff to keep devices, tools, equipment at a safe temperature and properly maintain equipment.24. Defendant Dr. Kelly used the equipment provided by Elite Body Sculpture in the AirSculpting procedure performed on Plaintiff. 25. Defendant Dr. Kelly failed to properly inspect the AirSculpt devices and tools for "proper temperature. 26. Defendant Dr. Kelly failed to prevent injury and bums during the AirSculpt procedure. 27. Defendant Dr. Kelly failed to perform the AirSculpt procedure properly and within the standard of care. 28. Defendant Elite Body Sculpture failed to properly monitor Defendant Dr. Kelly’s compliance with the standard of care in performing the AirSculpt procedure to ensure their clients ‘were protected from injury and burns. 29. The substandard AirSculpt procedure resulted in Plaintiff's large internal bums, a TRS 30. PlaintifY retumed to Defendant Elite Body Sculpture two weeks after her AirSculpting procedure for another appointment. 31. Plaintiff remarked at the irregular healing at her incision points but her concerns were dismissed as a normal reaction to the procedure. 32. Defendant Dr. Kelly failed to properly care for Plaintiff after her injuries and during follow-up appointments. 33. Defendant Elite Body Sculpture failed to properly supervise and monitor Defendant Dr. Kelly in his care for Plaintiff after her injuries and during follow-up appointments. 34. Over several weeks after the procedure, Plaintiff experienced bruising, open wounds, and scabbing at the procedural sites35. Large scars formed over the incision site and are now permanent with uneven skin tone and texture, 36. Plaintiff required additional surgeries to repair the scarring and uneven skin tone left from the AirSculpting procedure bums, 37. Plaintiff experienced immense pain and sickness as she tried to recover from such serious burns. 38. Plaintiff works as a massage therapist and has collapsed at work from the pain, weakness, and illness caused by her burns. 39. Plaintiff has developed chronic fluid retention and swelling as a side effect of the internal burns. 40. Plaintiff has required deep tissue lymphatic massages to drain the excess fluid; procedures that are extremely uncomfortable and painful. 41. Plaintiffhas had to start taking blood pressure medication to compensate for the extra pressure on her circulatory system from the excess swelling. 42. Today, Plaintiff suffers large scars, uneven skin tone and texture, high blood pressure, and chronie fluid retention. 43. Plaintiff injuries from these breaches in the standard of care include burns, permanent scaring, chronic swelling, high blood pressure, economic damages from medical expenses and lost wages, mental and emotional injuries, and future medical expenses. 44. Plaintiff's physical reactions to these procedures included pain, burning, skin damage, changes in skin tone and color, bruising, permanent scarring, chronic swelling, and high blood pressure.45. Plaintiff's economic injuries from these procedures included medical costs, associated with additional cosmetic surgeries to address permanent scarring, regular deep tissue lymphatic massage to assist with draining excess fluid, prescription medication for high blood pressure, and lost wages from employment missed during treatment and recovery. 46. Plaintiff's mental and emotional injuries from these procedures included pain and anguish over permanent scarring and bums, concer over increases in fluid retention and increased blood pressure, worry over continued employment and future medical expenses. 47. Plaintiff may have experienced other deficiencies which may be noted after proper discovery 48. Plaintif¥ suffered damages because of the mismanagement in care including, but not limited to: medical expenses, lost wages, permanent scarring, edema, high blood pressure as a side effect of the lymphedema, extensive pain, remedial cosmetic procedures, future medical care and associated costs, mental and emotional anguish, and other general and special damages to be proven at trial but no less than $300,000.00. NEGLIGENCE ~ AGAINST ALL DEFENDANTS COUNTT 49. Plaintiff incorporates by reference all allegations of this complaint as though fully restated herein. 50. The standard of care required Defendant Dr. Kelly to properly perform the AirSculpt procedure. 51. The standard of care required Defendant Dr. Kelly to inspect the AirSculpt devices and tools to ensure proper temperature during the procedure. 52. Defendant Dr. Kelly breached the standard of care when he failed to properly perform the AirSculpt procedure and instead badly bumed the Plaintiff.53. Defendant Dr. Kelly breached the standard of care when he failed to inspect the AixSculpt devices and tools to ensure proper temperature during the procedure. 54. Defendant Elite Body Sculpture employed or contracted with Defendant Dr. Kelly to perform services to patients at its facility 55. Defendant Elite Body Sculpture maintained the equipment Defendant Dr. Kelly used during medical procedures. 56. The standard of care required Defendant Elite Body Sculpture to monitor and supervise Dr. Kelly’s actions on behalf of their patients. 57. The standard of care required Defendant Elite Body Sculpture to maintain the equipment used in AirSculpt procedures in proper working order and at a correct operating temperature. 38. Defendant Elite Body Sculpture breached the standard of care in failing to monitor and supervise Dr. Kelly’s actions and methods 59. Defendant Elite Body Sculpture breached the standard of care when they failed to maintain the equipment used in AirSculpt procedures in proper working condition and at a safe operating temperature. 60. The breach in care outlined above directly and proximately cansed Plaintiff's injuries. 61. Plaintiff's health outcomes would have been different if Defendant Dr. Kelly had performed the AirSeulpt procedure properly. 62. Plaintiff's health outcomes would have been different if Defendant Dr. Kelly had properly inspected the AirSculpt devices and tools to ensure the proper temperatures during the procedure.63. Plaintiff's health outcomes would have been different if Defendant Elite Body Sculpture had properly monitored and supervised Defendant Dr. Kelly’s actions and methods of performing the AirSculpt procedure. 64. Plaintiff's health outeomes would have been different if Defendant Elite Body Sculpture had properly maintained the equipment used in AirSculpt procedures in proper working condition and at a safe operating temperature. 65. Plaintiff injuries from these breaches in the standard of care include bums, permanent scaring, chronic swelling, high blood pressure, economic damages fom medical expenses and lost wages, mental and emotional injuries, and future medical expenses, 66. Plaintiff's physical reactions to these procedures included pain, burning, skin damage, changes in skin tone and color, bruising, permanent scarring, chronic swelling, and high blood pressure. 67. Plaintiff's economic injuries from these procedures included medical costs associated with additional cosmetic surgeries to address permanent scarring, regular deep tissue lymphatic massage to assist with draining excess fluid, prescription medication for high blood pressure, and lost wages from employment missed during treatment and recovery. 68. Plaintiff's mental and emotional injuries from these procedures included pain and anguish over permanent scarring and burns, concer over increases in fluid retention and increased blood pressure, worry over continued employment and future medical expenses. 69. Plaintiff may have experienced other deficiencies which may be noted after proper discovery 70. Future medical treatment for the symptoms and conditions listed above include future scar revision surgeries, lymphatic treatment, and high blood pressure treatment.TL. Plaintiff suffered damages because of the mismanagement in care including, but ot limited to: medical expenses, lost wages, permanent scarring, edema, high blood pressure as a side effect of the lymphedema, extensive pain, remedial cosmetic procedures, future medical care and associated costs, mental and emotional anguish, and other general and special damages to be proven at trial but no less than $300,000.00. COUNT I 72. Plaintiff incorporates by reference all allegations of this complaint as though fully restated herein, 73. The standard of care required Defendant Dr. Kelly to wam Plaintiff of potential side effects including permanent scarring, bums, swelling, and pain. 74. The standard of care required Defendant Dr. Kelly to prevent injury and burns during the AirSculpting procedure. 75. The standard of care required Defendant Dr. Kelly to properly care for Plaintiff's injuries during follow up appointments. 76. Defendant Dr. Kelly breached the standard of care when he failed to warn Plaintiff of potential side effects from the AirSculpting procedure included permanent scarring, burns, swelling, and pain. 77. Defendant Dr. Kelly breached the standard of care when he failed to prevent injuries and burns during the AirSculpting procedure. 78. Defendant Dr. Kelly breached the standard of care when he failed to properly care for Plaintiff after injury and during follow up appointments. 79. Defendant Elite Body Sculpture employed or contracted with Defendant Dr. Kelly to perform services to patients at its facility.80. Defendant Elite Body Sculpture maintained the equipment Defendant Dr. Kelly used during medical procedures. 81. The standard of care required Defendant Elite Body Sculpture to monitor and supervise Dr. Kelly’s actions on behalf of their clients/patients, 82. The standard of care required Defendant Elite Body Sculpture to maintain the equipment used in AirSculpt procedures in proper working order and at a correct operating temperature. 83. Defendant Elite Body Sculpture breached the standard of care in failing to monitor and supervise Dr. Kelly’s actions and methods 84. Defendant Elite Body Sculpture breached the standard of care when they failed to maintain the equipment used in AirSculpt procedures in proper working condition and at a safe operating temperature. 85. The breach in care outlined above directly and proximately cansed Plaintiff's injuries. 86. The breach in care outlined above was reckless conduct rising to a thoughtless disregard for Plaintiff's safety and wellbeing. 87. Defendants failed to use slight care to avoid harming Plaintiff, 88. Plaintiff's health outcomes would have been different if Defendant Dr. Kelly had wamed Plaintiff of the potential side effects associated with AirSculpt including permanent scarring, burns, swelling, and pain. 89. Plaintiff's health outcomes would have been different if Defendant Dr. Kelly had prevented injury and burns during the AirSculpt procedure. 1090. Plaintiff's health outcomes would have been different if Defendant Dr. Kelly had properly cared for Petitioner's injuries during follow up appointments. 91. Plaintiff's health outcomes would have been different if Defendant Elite Body Sculpture had properly monitored and supervised Defendant Dr. Kelly’s actions and methods of performing the AirSculpt procedure. 92. Plaintiff's health outeomes would have been different if Defendant Elite Body Sculpture had properly maintained the equipment used in AirSculpt procedures in proper working condition and at a safe operating temperature. 93. Plaintiff injuries from these breaches in the standard of care include burns, permanent scaring, chronic swelling, high blood pressure, economic damages from medical expenses and lost wages, mental and emotional injuries, and future medical expenses, 94. Plaintiff's physical reactions to these procedures included pain, burning, skin damage, changes in skin tone and color, bruising, permanent scarring, chronic swelling, and high blood pressure. 95. Plaintiff's economic injuries from these procedures included medical costs associated with additional cosmetic surgeries to address permanent scarring, regular deep tissue lymphatic massage to assist with draining excess fluid, prescription medication for high blood pressure, and lost wages from employment missed during treatment and recovery. 96. Plaintiff's mental and emotional injuries from these procedures included pain and anguish over permanent scarring and bums, concer over increases in fluid retention and increased blood pressure, worry over continued employment and future medical expenses. 97. Plaintiff may have experienced other deficiencies which may be noted after proper discovery cr98. Future medical treatment for the symptoms and conditions listed above include future scar revision surgeries, lymphatic treatment, and high blood pressure treatment. 99, Plaintiff suffered damages because of the mismanagement in care including, but ot limited to: medical expenses, lost wages, permanent scarring, edema, high blood pressure as a side effect of the lymphedema, extensive pain, remedial cosmetic procedures, future medical care and associated costs, mental and emotional anguish, and other general and special damages to be proven at trial but no less than $300,000.00. NEGLIGENT SUPERVISION — AGAINST ELITE BODY SCULPTURE ‘COUNT I 100, Plaintiff incorporates by reference all allegations of this complaint as though fully restated herein, 101. Defendant Elite Body Sculpture employed Defendant Dr. Kelly as a contractor or agent 102. Defendant Elite Body Sculpture maintained the equipment Defendant Dr. Kelly used during medical procedures. 103, The standard of care requited Defendant Elite Body Sculpture to monitor and supervise Dr. Kelly’s actions on behalf of their clients/patients, 104, The standard of care required Defendant Elite Body Sculpture to maintain the equipment used in AirSculpt procedures in proper working order and at a correct operating temperature. 105. Defendant Elite Body Sculpture breached the standard of care in failing to monitor and supervise Dr. Kelly’s actions and methods 2106. Defendant Elite Body Sculpture breached the standard of care when they failed to maintain the equipment used in AirSeulpt procedures in proper working condition and at a safe operating temperature. 107. The breach in care outlined above directly and proximately caused Plaintiff's injuries, 108, Plaintiff's health outcomes would have been different if Defendant Elite Body Sculpture had properly monitored and supervised Defendant Dr. Kelly’s actions and methods of performing the AirSculpt procedure. 109. Plaintiff's health outcomes would have been different if Defendant Elite Body Sculpture had properly maintained the equipment used in AirSculpt procedures in proper working condition and at a safe operating temperature. 110, Plaintiff injuries from these breaches in the standard of care include burns, permanent scaring, chronic swelling, high blood pressure, economic damages from medical expenses and lost wages, mental and emotional injuries, and furure medical expenses. 111. Plaintiff's physical reactions to these procedures included pain, burning, skin damage, changes in skin tone and color, bruising, permanent scarring, chronic swelling, and high blood pressure. 112. Plaintiff's economic injuries from these procedures included medical costs associated with additional cosmetic surgeries to address permanent scarring, regular deep tissue lymphatic massage to assist with draining excess fluid, prescription medication for high blood pressure, and lost wages from employment missed during treatment and recovery. B113. Plaintiff's mental and emotional injuries from these procedures included pain and anguish over permanent scarring and burns, concer over increases in fluid retention and increased blood pressure, worry over continued employment and future medical expenses. 114, Plaintiff may have experienced other deficiencies whieh may be noted after proper discovery 115. Future medical treatment for the symptoms and conditions listed above include future scar revision surgeries, lymphatic treatment, and high blood pressure treatment. 116, Plaintiff suffered damages because of the mismanagement in care including, but not limited to: medical expenses, lost wages, permanent scarring, edema, high blood pressure as a side effect of the lymphedema, extensive pain, remedial cosmetic procedures, future medical care and associated costs, mental and emotional anguish, and other general and special damages to be proven at trial but no less than $300,000.00, VICARIOUS LIABILITY-AGAINST ELITE BODY SCULPTU COUNT IV 117, Plaintiff incorporates by reference all allegations of this complaint as though fully restated herein. 118, As alleged above, Defendant Dr. Kelley was acting as an actual, apparent, or ostensible agent of Elite Body Sculpture. Therefore, Elite Body Sculpture is vicariously liable for the acts and omissions of Defendant Dr. Kelley. 119. Elite body Sculpture maintains a non-delegable duties including the safety and wellbeing to its patients including Plaintiff Alexis Nelson. 120, Each member of the Elite Body Sculpture medical staff was acting in the course and scope of their employment with Elite Body Sculpture at the time of the aets referenced 4herein, Therefore, Elite Body Sculpture is vicariously liable for the acts and omission of the Elite Body Sculpture medical staff. 121. The breaches in care attributed to Defendant Dr. Kelly, and outlined above, directly and proximately caused Plaintiff's injuries. 122. Defendant Elite Body Sculpture is vicariously liable for Defendant Dr. Kelly's breaches of the standard of care. 123. Elite body Sculpture is liable for the breach in non-delegable duties including the safety and wellbeing to its patients including Plaintiff Alexis Nelson. 124, Plaintiff’s health outcomes would have been different if Defendant Elite Body Sculpture’s agent, Defendant Dr. Kelly, had not breached the standards of care outlined above. 125. Plaintiff's health outcomes would have been different if Defendant Elite Body Sculpture had not breached the standards of eare outlined above 126, Plaintiff's health outcomes would have been different if members of the Elite Body Sculpture medical staff, acting within the scope and course of their employment, had not breached the standards of care outlined above. 127. Plaintiff injuries from these breaches in the standard of care include burns, permanent scaring, chronic swelling, high blood pressure, economic damages from medical expenses and lost wages, mental and emotional injuries, and future medical expenses, 128. Plaintiff’s physical reactions to these procedures included pain, burning, skin damage, changes in skin tone and color, bruising, permanent scarring, chronic swelling, and high blood pressure. 129, Plaintiff's economic injuries from these procedures included medical costs associated with additional cosmetic surgeries to address permanent scarring, regular deep tissuelymphatic massage to assist with draining excess fluid, prescription medication for high blood pressure, and lost wages from employment missed during treatment and recovery. 130, Plaintiff's mental and emotional injuries from these procedures included pain and anguish over permanent scarring and bums, concern over increases in fluid retention and increased blood pressure, worry over continued employment and future medical expenses. 131. Plaintiff may have experienced other deficiencies whieh may be noted after proper discovery 132. Future medical treatment for the symptoms and conditions listed above include future scar revision surgeries, lymphatic treatment, and high blood pressure treatment. 133. Plaintiff suffered damages because of the mismanagement in care including, but not limited to: medical expenses, lost wages, permanent scarring, edema, high blood pressure as a side effect of the lymphedema, extensive pain, remedial cosmetic procedures, future medical care and associated costs, mental and emotional anguish, and other general and special damages to be proven at trial but no less than $300,000.00, JURY DEMAND Plaintiff hereby demands a trial by jury on all issues so triable PRAYER FOR RELIEF 1, Based on the Plaintiffs’ first cause of action for negligence, the Plaintiff asks the court for a monetary judgment in favor of the Plaintiff and against Defendant Dr. Kelly and Defendant Elite Body Sculpture, in an amount to be proven at trial for medical expenses, lost wages, mental and emotional anguish, and other general and special damages to be proven at trial. 2. Based on Plaintiffs" second cause of action for gross negligence, the Plaintiff asks the court for a monetary judgement in favor of the Plaintiff and against Defendant Dr. Kelly and 16Defendant Elite Body Sculpture, in an amount to be proven at trial for medical expenses, lost wages, mental and emotional anguish, and other general and special damages to be proven at trial. 3. Based on Plaintiff's third cause of action for negligent supervision, the Plaintiff asks the court for a monetary judgment in favor of the Plaintiff and against Defendants Elite Body Sculpture in an amount to be proven at trial for medical expenses, lost wages, mental and emotional anguish, and other general and special damages to be proven at trial. 4, Based on Plaintiff's fourth cause of action for vicarious liability, the Plaintiff asks the court for a monetary judgment in favor of the Plaintiff and against Defendants Elite Body Sculpture in an amount to be proven at trial for medical expenses, lost wages, mental and emotional anguish, and other general and special damages to be proven at trial. 5. For general, special, or consequential damages in an amount to be proven at trial: 6. For pre-and post-judgment interest; 7. Foran award of attorney fees and costs; 8. For punitive damages for reckless and reprehensible actions based in gro: negligence; 9, For all other relief, the court finds just and proper. DATED this 21* day of August, 2023. THE GARNER LAW FIRM {s/ Geena Arata Daniel S. Garner Geena Arata Attorneys for Plaintiffs v7