Lasik Eyes Surgery - Failed LASIKs - Details of Civil Action Against Alcon

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Failed LASIKs - Details of Civil Action Against Alcon

gospa68@aol.com

2005-01-27, 8:51 am

UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

GE HEALTHCARE FINANCIAL SERVICES, a component of GENRAL ELECTRIC COMPA

Plaintiff,
v=2E
Civil Action No. 1:03CV0051
EBW Laser, Inc.

Defendant.
Third Party Plaintiff,
v=2E
ALCON LABORATORIES, INC., and REFRACTIVE HORIZONS, L.P.

Third Party Defendants.

THIRD PARTY COMPLAINT OF EBW LASER, INC.

Defendant, complaining of the Third Party Defendants, alleges and says:

1=2E Defendant EBW Laser, Inc., (hereinafter EBW Laser) is a
corporation duly formed and operating in North Carolina.

2=2E Third Party Defendant Alcon Laboratories, Inc.,
(hereinafter "Alcon") is a Delaware corporation with substantial
business dealings in North Carolina.

3=2E Third Party Defendant Refractive Horizons, L.P.
(hereinafter "Refractive") is a Texas limited partnership with
substantial dealings in North Carolina.

4=2E The Defendant asserts that the actions of the Third Party
Defendants complained of in this Third Party Complaint directly relate
to the Complaint filed by Plaintiff GE Healthcare Financial Services
(hereinafter "GE") on June 30, 2003, 1:03CV00514. Defendants in this
action are cited by name as the reason the debt was not paid in the GE
action and the debt as may be found to be owed by EBW Laser in that
action is owed by the Third Party Defendants for reasons hereinafter
stated.

5=2E Jurisdiction of this action is founded upon 18 U.S.C.
=A7=A71961 1968 and pursuant to 28 U.S. C. =A71441 and venue is founded
upon 28 U.S.C. =A71391. The matter in controversy exceeds, exclusive of
interest and costs, the sum specified by 28 U.S.C. =A71332.

6=2E On March 30 2000, Defendant EBW Laser executed a contract
with Summit Technology, Inc., to obtain through third party leases a
number of Autonomous LadarVision Systems, highly sophisticated machines
designed to correct vision in human eyes. Among these third party
leases are the same leases being sued upon by GE in the original
complaint. On information and belief, later that same year, Defendant
Alcon purchased the assets and liabilities of Summit Technologies,
Inc., including the aforementioned contract. Alcon divided the rights
and responsibilities of that contract so that they were partially
performed or intended to be performed by Alcon and other portions were
partially performed or intended to be performed by Refractive.

7=2E During the remainder of 2000 after the purchase of Summit
Technologies, Inc., and into 2001, Third Party Defendant Alcon became
aware of extremely serious problems with the Autonomous LadarVision
Systems which it had purchased as a part of the deal with Summit
Technologies, Inc. Reports began to come in from doctors around the
nation through Third Party Defendant Refractive and Alcon's repair
personnel and other sources that the Autonomous LadarVision Systems, or
some of them, were badly malfunctioning. The machines were designed to
automatically calculate the depth and type of laser cut on the eye
which could not be independently verified and in truth, on some
machines, the results were wildly erratic. Sometimes when the machines
indicated a sufficient laser cut would be made, no laser cut would be
made at all. At other times the cut would be, in any case, greatly
different than the machine indicated. This necessitated thousands of
patients to have their eyes redone, often multiple times, and some
patients to have uncorrectable, terrible results."

8=2E The existence of these malfunctioning machines caused a
conundrum for Third Party Defendant Alcon and Third Party Defendant
Refractive. It they reported these numerous malfunctioning to the
Federal Drug Administration as required by law and notified doctors
around the country to look out for this possibility, then the sales of
the Autonomous LadarVision Systems for which Third Party Defendant
Alcon had just paid a premium might crash. The FDA might well force a
recall and review the entire design of the machine and thousands of
patients might well sue Alcon for product liability. To avoid those
eventualities, Third Party Defendants Alcon and Refractive entered into
a criminal enterprise to defraud and deceive the doctors and the
companies who used the machines (9 of which EBW Laser, Inc., was one).
The deception operated in this fashion. Each time a doctor or company
reported one of these widespread malfunctions, the Third Party
Defendants would pretend it was the first they had heard of it. The
Third Party Defendants would then suggest all sorts of fanciful and
untrue possible causes for the malfunction, having full knowledge that
the known malfunction was common with the machine. The Third Party
Defendants would then feign an "inspection" of the patient records to
"discover" the cause of the problem when they already knew they already
knew the cause. Much or all of the deception perpetrated on the doctors
or companies took place through the United States mails, over United
States wires, and inside the territorial boundaries of the United
States. In the second phase of the deception, if any doctor and/or
company became suspicious or uncooperative, the Third Party Defendants
intimated and threatened said doctors or companies and induced fear of
economic hard so said doctors and/or companies who suspected a
malfunction of the machine would not disseminate their suspicion to the
Federal Drug Administration or in doctor conferences.

9=2E The acting agents for the Third Party Defendants, Alcon
and Refractive, were the President and officers of Alcon, the employees
who dealt with the doctors and companies who owned Autonomous
LadarVision Systems. All actions of the criminal enterprise were taken
on behalf of participants,. Third Party Defendants Alcon and
Refractive."

10. The criminal enterprise had as its purpose to avoid the
legally required reporting of malfunctioning machines to the Food and
Drug Administration, to continue to deceive the doctors and
corporations who had the malfunctioning machines and to deceive the
makers of new contracts with the Third Party Defendants so that they
would have no knowledge of the malfunctioning machines. Third Party
Defendant Alcon also wished to do a stock issue and it wished not to
make otherwise required disclosures to the Securities and Exchange
Commission and to the public so that its stock issue would be
successful and raise more money. All of these goals of the criminal
enterprise depended on the continued denial that the machines were
malfunctioning even though the Third Party Defendants knew or should
have known that they were. In the event any doctor or company being
deceived suggested consulting the Federal Drug Administration or
bringing up the p4roblem at doctor conventions, the goal of the
criminal enterprise then continued in the form of defeating any
widespread dissemination of the truth by intimidation and inducements
of fear of economic harm.

11. The Defendant EBW Laser first became the target of the
Third Party Defendants' criminal enterprise because it had two of the
defective machines. When the Defendant EBW Laser and the doctors with
whom they had contracted first reported the wildly erratic results,
Third Party Defendants, as was their deceptive practice, made no
disclosure that they had received essentially the same reports from
doctors around the nation including from some of the nation's most
respected surgeons. The Third Party Defendants instead by mail and
telephone inside the boundaries of territorial United States, told the
Defendant and the contracted doctors that there must be something wrong
with their techniques or perhaps there was too much humidity in the
room. They deceptively failed to disclose that they had had the same
reports from other doctors and they had given them the same false
explanations. The Third Party Defendants then through a sham of
reviewing patient records reported false conclusions instead of
attributing the results to the malfunctioning machines.

12. The Third Party Defendants had in January 2001,
negotiated a contract with Defendant whereby Defendant would pay per
procedure fees such that for each person on whose eyes surgery was
performed, the Defendant would pay a fee to the Third Party Defendants.
This contract was negotiated and was transmitted through the United
States mails or telephonically and was wired all in the territorial
United States. The malfunctioning machines necessitated repeated
surgical procedures on the same person either to perform the task
originally attempted which was not done because of the malfunctioning
machine or to correct damage done at the other extreme by the
malfunctioning machine. All of this was well-known to the Third Party
Defendants because of repeated complaints by respected doctors around
the United States and from records of their own maintenance personnel.
They nevertheless deceptively failed to disclose these facts to
Defendant EBW Laser and negotiated the contract intentionally keeping
the EBW Laser in the dark. The negotiation of the contract which took
place in December 200 and January 2001 was deceptive in that it failed
to disclose serious continuing malfunctions of the machine well-known
to the Third party Defendants which would necessitate many more repeat
procedures than could reasonably be expected and which the Third Party
Defendants led the Defendant to believe would be expected.

13. During 2001, two of the Defendant's machines began to
seriously malfunction. One of those two is the subject of the
complaint filed by Plaintiff GE. In the case of the GE machine, the
subject of the original lawsuit located in Maryland, the machine
performed erratically. The machine's settings would always indicate
that everything was in good order, but at times the laser would not cut
at all. At other times it would perform erratically and vary wildly
from patient to patient and even from eye to eye on the same patient.
Repeatedly, maintenance personnel were called in and in numerous phone
conversations, the Third Party Defendants always repeated the same
deceptive statements similar to what had been repeated around the
country to a number of doctors and companies reporting similar problems
with the machine. EBW Laser was told telephonically within the
territorial United States as was the doctor with whom they were
contracting that perhaps the doctor needed to work on her technique or
humidity problems might be causing it. Always carefully and
intentionally omitted was the true state of affairs which was known and
appreciated by the Third Party Defendants that a number of machines
were malfunctioning the same way around the country which could only
reasonably indicate a machine problem and not a wide-spread doctor
problem.

14. Defendant EBW Laser became extremely concerned about the
number of repeat surgeries and the fact it was having to pay procedure
fees for these repeated surgeries. EBW Laser was also concerned that
the medical practice in Maryland had been severely damaged and the
medical practice in Albuquerque, New Mexico, where the other
malfunctioning machine was located had also been badly hurt because of
the machine's down time and repetitive problems. In telephonic
conversations in the territorial United States, the Defendant EBW Laser
confronted the Third Party Defendants with their suspicions that the
machines were malfunctioning, and that some kind of mitigation of the
fees needed to be made. The Third Party Defendants continued their
deceptive behavior and insisted that these problems were unique and
that they had not heard of anything else like this occurring. In fact,
the Third Party Defendants were by 2001 already dealing legally with
the problem and had had repeated conversations about the malfunctioning
machines. The criminal enterprises goal of cover-up by deception and
intimidation was well under way and their deceptive actions toward
Defendant were only a relatively small part of it. The Third Party
Defendants agreed to defer the disputed procedure fees while
negotiations were ongoing as to how much the procedure fees would be
mitigated. In March 2003, Defendant EBW Laser through J. Mark McDaniel
communicated telephonically to the Third Party Defendants that he would
like to bring the negotiation to a conclusion because he wished to
transfer service contracts into a different corporate name and he was
both clearing that with the Third Party Defendants, as was required,
and wrapping up all unfinished business. McDaniel on behalf of the
Defendant EBW Laser then communicated that he had heard rumors that
Alcon had had the same sort of problems with other machines that
doctors were being bought out, and that machines were being replaced or
substantially rebuilt as the machines for EBW Laser had been. He
wanted to know if those rumors were true. McDaniel had unknowingly
triggered the other technique of the criminal enterprise. The first
technique was to hide the problem by deception: the other part of the
technique was to keep the problem from official disclosure or
acknowledgement by economic intimidation and threats.

15. Alcon responded to EBW Laser's inquiries by false and
deceptive denials, but also by a lawsuit demanding all the disputed
money upfront. Even though Third Party Defendants obtained a Court
Order so that any further procedures fees would be paid directly to
them and the disputed fees would be determined by a Court, the Third
Party Defendants then proceeded with a massive economic intimidation
campaign. First, they called the doctors with whom EBW Laser had
contracts and told them that they would be cutting off the machines so
that the doctors could no longer perform surgery on EBW Laser machines.
When the doctors attempted to make arrangement to pay both procedure
fees and maintenance directly to the Third Party Defendants, they
offered the doctors only one alternative - cease doing business with
EBW Laser and allow the Third Party Defendants to substitute the
machines with new contracts for them or else they would cut them off.
All of these contracts were made with the full knowledge that EBW Laser
was in a contractual relationship with these doctors and that the Third
Party Defendants were tortuously interfering with those third party
relationships. These contacts wee made both telephonically and written
offers were made through the mail and th4rough the wires.

16. Third Party Defendants had as its purpose to further the
criminal enterprise so that EBW Laser would cease discussing the
malfunctioning of the machines, pay the Third Party Defendants
every5hing without negotiation, and have no risk of disclosure of the
Third Party Defendants' criminal enterprise. The Third Party
Defendants meant to and did put the Defendant in fear of economic harm
by eliminating their ability to pay their leases knowing that some
leases had personal guarantees, eliminating their source of income from
doctors with whom the Defendant had contracts, and virtually destroying
the economic integrity of the Defendant. Numerous acts were taken to
forward this criminal enterprise in the mail, telephonically, and over
the wires within the territorial United States.

17. As a direct and proximate result of the Third Party
Defendants' deception conducted through the mails and wires of the
United States and as a victim of the Third Party Defendants' criminal
enterprise, the Defendant has suffered actual damages both present and
legally recognized prospective damages in the millions of dollars with
the exact amount to be proven at trial.

SECOND CAUSE OF ACTION

18. Numbers 1-17 are hereby replead.

19. The actions of the Third Party Defendants in failing to
disclose critical information known to it of widespread malfunctioning
machines and failing to disclose that numerous extra follow-up
procedures would be needed because of those malfunctions while at the
same time establishing a payment schedule for those same procedures was
deceptive within the meaning of the North Carolina Unfair Trade
Practice Act and constituted an unfair trade practice.

20. The actions of the Third Party Defendants in repeatedly
making false and/or deceptive statements to Defendant and its
representatives concerning the cause of the problems with procedures
that the Defendant was experiencing when the Third Party Defendants
were responsible for the maintenance and upkeep of the machines was
deceptive within the meaning of North Carolina's Unfair Trade Practice
Act and would constitute unfair trade practice.

21. As a direct proximate result of the Third Party
Defendants' deceptive conduct in violation of the North Carolina Unfair
Trade Practice Act, the Defendant has suffered actual and legally
allowable prospective damages in an exact amount to be proven at trial.

22. The Defendant asserts that the issues raised and the
evidence necessary to prove the Unfair Trade Practice claim would be
similar to and would tend to duplicate the evidence put forth in the
Federal RICO claim in this complaint and it would be proper to append
this matter.

Trial by jury on all factual matters is hereby demanded.

WHEREFORE, the Defendant prays that the following damages be
awarded from the Third Party Defendants jointly and severely:

1=2E That the Defendant be granted damaged (sic) for actual
and (sic) legally allowable prospective damages in an amount to be
proven at trial.

2=2E That the amount of said damages be trebled pursuant to
RICO and/or the North Carolina Unfair Trade Practice Act.

3=2E That the Defendant be granted an award of reasonable
attorney's fees pursuant to RICO and/or the North Carolina Unfair Trade
Practice Act.

4=2E For such other and further relief as the Court deems just
and proper.

This the ____ day of July, 2003

Douglas S. Harris
Attorney for Third Party Plaintiff/Defendant
State Bar Number 9843
1698 Natchez Trace
Greensboro, NC 27455
Telephone: (336) 288-0284

Glenn - USAEyes.org

2005-01-27, 8:52 am

The accusations have been all over the place. In the interest of
balance and full disclosure, why don't you publish Alcon's responses
to the allegations? Also, why don't you publish why Alcon sued them
in the first place?

Glenn Hagele
Executive Director
Council for Refractive Surgery Quality Assurance

Email to glenn dot hagele at usaeyes dot org

http://www.USAEyes.org
http://www.ComplicatedEyes.org

I am not a doctor.

Pimp in a Pimpmobile

2005-01-27, 8:52 am

Glenn - USAEyes.org wrote:
> The accusations have been all over the place. In the interest of
> balance and full disclosure, why don't you publish Alcon's responses
> to the allegations? Also, why don't you publish why Alcon sued them
> in the first place?

Brave! Well said!

It really is not sufficient that Alcon, its lawyers, its PR team, its
crisis management firm, its paid consultants, and you and I are doing
all we can to either prevent the facts from becoming public or
discredit or distract attention from what becomes public and from any
attempt to call for more investigation. Everyone should join in this
humanitarian effort to save Alcon, including all the people who
stumbled across the dirt in the first place. Who's more important here,
anyway, a company or consumers?

Kisses

Pimp in a Pimpmobile
Council for Refractive Surgery Quality Prevention

Email to pimp in a pimpmobile at yahoo dot com

http://www.alconlasersaregreat.com
http://www.soarealltheothers.com

I am not a liar.