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Charleston v. Salon Secrets Day Spa

June 1, 2009

DEBORAH CHARLESTON AND LARRY CHARLESTON (W/H), PLAINTIFFS,
v.
SALON SECRETS DAY SPA, INC., ET AL., DEFENDANTS.



The opinion of the court was delivered by: Robert F. Kelly, Sr. J.

MEMORANDUM

Presently before the Court are Motions to Dismiss and Motions to Strike filed by Defendants Salon Secrets Day Spa, Inc. ("Salon Secrets"), Pamela A. Troyan ("Troyan"), and Dr. Thomas J. Burke, D.O. ("Dr. Burke") (collectively "Defendants"). For the following reasons, the Motions to Strike will be granted and the Motions to Dismiss will be denied.

I. FACTS

Plaintiffs Larry and Deborah Charleston ("the Charlestons") claim that on February 10, 2007, Deborah Charleston suffered disfiguring facial burns as a result of a laser hair removal procedure performed at Salon Secrets by Defendant Barbara Lindner ("Lindner"), a salon aesthetician. Defendant Troyan is the owner of Salon Secrets. The Charlestons aver that Defendant PT Lasers, a limited liability company that leased the laser, is co-owned by Defendants Troyan and Dr. Burke.

The Charlestons allege that Troyan partnered with Dr. Burke to acquire a prescription medical device to provide laser hair removal services at Salon Secrets. The Charlestons assert that the device can only be sold to or on the order of a licensed physician. The Charlestons further contend that laser hair removal is a medical procedure which, under Pennsylvania law, requires a licensed physician to either perform the procedure himself or delegate the procedure to a trained technician. The Charlestons assert, however, that Lindner was unsupervised when she performed the laser hair removal procedure.

The Charlestons' Complaint alleges two different factual scenarios. Under one set of alleged facts, after Troyan used Dr. Burke's license as a means to acquire the laser device for Salon Secrets in 2004, Dr. Burke resigned from his position at Salon Secrets in 2006, allowed his Pennsylvania medical license to lapse, and cancelled his malpractice insurance. Troyan nonetheless continued to allow her employees to use the medical laser to treat clients without any medical supervision. The Charlestons further allege that Dr. Burke knew or should have known of this improper use of his laser, as he continued to pick up and drop off the laser at Salon Secrets even after his resignation.

Under an alternative set of alleged facts, based on verified information obtained from Troyan, Dr. Burke did not resign from Salon Secrets, but continued to serve as Salon Secrets's medical director, and was employed in that capacity at the time of Charleston's injury in February 2007. The Charlestons claim that Dr. Burke's Pennsylvania medical license had expired months before in October 2006, and thus, if it is true that he served as Salon Secrets's medical director and supervising physician at the time of the accident, then he is responsible for the harmed caused to Charleston by his agent, Lindner, as well as for the consequences of practicing medicine in this Commonwealth without a license and without insurance.

On December 19, 2008, the Charlestons filed a Complaint in this Court, alleging that Defendants are liable for the burns caused to Charleston's face when Lindner disregarded the instruction manual for the laser and used it on a dark-skinned patient without first testing the laser's strength. They further argue that by failing to wait the mandatory twenty-four to forty-eight hours to complete the skin test required for dark-skinned patients like Charleston, Linder's use of the laser caused second-degree burns on her face. The Charlestons assert that if Linder had been working under the supervision of a licensed physician, she would have first performed a skin test in a small, unnoticeable area, and then two days later, the area would have been inspected to determine if Charleston was even a candidate for the procedure. However, because Linder was unsupervised, these procedures were not followed. The Charlestons also claim that because Charleston had grey and white hair, she was probably not even a candidate at all, according to the black box warnings contained in the instruction manual.

On March 16, 2009, the Charlestons filed a Motion to Amend the Complaint. On March 30, 2009, Dr. Burke filed a Motion to Strike and a Motion to Dismiss. On March 31, 2009, Salon Secrets filed a Motion to Strike and a Motion to Dismiss. On April 3, 2009, this Court granted the Charlestons' Motion to Amend the Complaint, and the Charlestons filed their Amended Complaint on that same date. The amendments essentially corrected the paragraph numbering, and did not substantively alter the nature of the allegations which remain in dispute. Defendants renewed their objections to the Amended Complaint by filing their respective Motions to Strike and Motions to Dismiss the Amended Complaint. To date, Lindner has filed an Answer to the Complaint, and PT Lasers has not answered.

II. STANDARDS OF REVIEW

A. Motion to Strike

Federal Rule of Civil Procedure 12(f) states in relevant part: "The court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." FED. R. CIV. P. 12(f). "Immaterial matter is that which has no essential or important relationship to the claim for relief." Del. Health Care. Inc. v. MCD Holding Co., 893 F. Supp. 1279, 1291-92 (D. Del. 1995). "Impertinent matter consists of statements that do not pertain, and are not necessary, to the issues in question." Id.

District courts are afforded "considerable discretion" when addressing a motion to strike. See Woods v. ERA Med LLC, No. 08-2495, 2009 U.S. Dist. LEXIS 3965, at *32 (E.D. Pa. Jan. 21, 2009). Generally, motions to strike are not favored and "usually will be denied unless the allegations have no possible relation to the controversy and may cause prejudice to one of the parties, or if the allegations confuse the issues." River Rd. Dev. Corp. v. Carlson Corp. - Ne., No. 89-7037, 1990 U.S. ...


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