Lasik Eyes Surgery - Alcon sued by Dr. Sandra Brown for damage by Forrest Gump laser

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Alcon sued by Dr. Sandra Brown for damage by Forrest Gump laser

Brent Hanson - LasikFraud.com

2005-03-19, 6:22 pm

CAUSE NO. 236 209603 05SANDRA BROWN,
Plaintiff,
vs.

ALCON MANUFACTURING, L.T.D.,
and ALCON LABORATORIES, INC.

IN THE DISTRICT COURT OF
TARRANT COUNTY, TEXAS

PLAINTIFF'S ORIGINAL PETITION, MOTION FOR LEVEL THREE DISCOVERY PLAN AND
REQUEST FOR DISCLOSURE

TO THE HONORABLE JUDGE OF SAID COURT:

COMES NOW, SANDRA BROWN (hereinafter referred to as "Plaintiff"),
and makes and files this her Original Petition, Motion for Level Three
Discovery Plan and Request for Disclosure, complaining of Defendants ALCON
MANUFACTURING, L.T.D. and ALCON LABORATORIES, INC. (hereinafter referred to
as "Alcon"), and in support thereof would respectfully show unto the Court
as follows:

I.
MOTION FOR LEVEL THREE DISCOVERY PLAN

Plaintiff hereby moves to conduct discovery in accordance with a
discovery control plan tailored to the circumstances of this specific suit.
In the interest of judicial economy and equity, Plaintiff moves to conduct
discovery By Order (Level Three) pursuant to Rule 1904 of the Texas Rules of
Civil Procedure. Such a plan would provide all parties adequate time for
oral depositions, interrogatories and other necessary states of discovery.
All discovery will be conducted pursuant to Rule 192 of the Texas Rules of
Civil Procedure, which requires that all discovery be relevant to the
subject matter of the pending action. As a complicated product liability
case is being alleged extensive expert testimony and review of records will
be required. More time is necessary in order to fairly and adequately
prepare for an efficient trial of the case. Furthermore, Plaintiff requests
thirty (30) days from the filing of the last Defendants' Original Answer to
prepare a written proposal for a discovery control plan.

II.
PARTIES

Plaintiff Sandra Brown is a resident of Lubbock County and is a
citizen of the State of Texas.

Defendant Alcon Manufacturing, Ltd. is a Texas Corporation and may
be served through its Registered Agent CT Corporation System, 350 N. St.
Paul Street, Dallas, Texas 75201.

Defendant Alcon Laboratories, Inc., is a Texas corporation which may
be served through its Registered Agent CT Corporation System, 350 N. St.
Paul Street, Dallas, Texas 75201.

III.
VENUE

Venue is proper in Tarrant County, Texas pursuant to § 15.002, et.
seq., of the Texas Civil Practice and Remedies Code, as the Defendants have
their principal place of business in Tarrant County, Texas and the acts and
omissions made the basis of this lawsuit occurred in Tarrant County, Texas.

IV.
JURISDICTION

This Court has jurisdiction over this cause because the amount in
controversy is within the jurisdictional limits of the Court.

V.
STATEMENT OF FACTS

On or about April 27, 2001 Sandra Brown had LASIK surgery performed.
During the procedure, the LASIK surgeon used the Alcon LADARVision Excimer
Laser System (hereinafter referred to as "the Product").

During the procedure, the Product failed resulting in injury, harm
and/or damage to Sandra Brown.

Prior to this failure, Alcon was on notice that the Product was
defective by design, unreasonably dangerous, and likely to cause injury,
harm and/or damage to patients.

Additionally, Alcon knew that prior to Sandra Brown's procedure with
the Product, the retreatment rates for patients who had procedures with the
Product were excessive; incidents of adverse events occurred more frequently
with the Product including, but not limited to over-corrections,
decentrations, small effective optical zones, systematic under-ablations
and/or epithelial ingrowth; and ophthalmologists notified Alcon about poor
performance of the Product resulting in an excess number of adverse events.

Further, Alcon was on notice in August, 2004 that the London Times
reported that the Product failed in an excessively high percentage of
patients who required additional surgeries and/or sustained damage to their
eyesight. Surgical enhancement and/or repair to patients increased by more
than 20 percent for surgeons using the Product between 2000 and 2002.

Further, Alcon actively and fraudulently concealed the danger of the
Product for use on the general public.

VI.
CAUSE OF ACTION

A. Negligence

At all times relevant to this cause of action, Alcon had a duty to
act as a reasonably prudent company would have acted under the same or
similar circumstances. Alcon breached this duty by, among other acts and/or
omissions:
Defectively designing the Product;

Failing to correct defects which it knew or should have known would cause
injury, harm and/or damage to patients;

Failing to notify the FDA of adverse outcomes and/or incidents;

Failing to notify the physicians using the product of its defective
condition.

B. Strict Products Liability

At all times relevant to this cause of action, Defendants were in
the business of designing, testing, manufacturing, marketing, distributing,
selling and/or supplying the Product for use in Texas and throughout the
United States. Therefore, Defendants placed the Product into the stream of
commerce where it ultimately was used on the Plaintiff who was a foreseeable
user and/or beneficiary of the Product. At all times relevant to the cause
of action, the Product remained in substantially the same condition as when
it was designed, manufactured, sold, and/or distributed by Defendants into
the stream of commerce. This product was used as intended in its ordinary
and customary use. At the time the Product left the control of Defendants,
it was defectively designed and/or unreasonably dangerous for the following
reasons which include but are not limited to:

- the Product would remove too much eye tissue;
- the Product would perform sporadically and/or erratically;
- the Product had a high risk of failure and/or adverse incidents which were
not disclosed to the public and/or FDA.

The above described acts and/or omissions were singularly and/or
severally a proximate and/or producing cause of the occurrence in question
and the resulting injuries and/or damages to Plaintiff.

C. Manufacturing Defect

Defendants are strictly liable for designing the Product that was
unreasonably dangerous as designed, taking into consideration the utility of
the Product and the risk involved in its use. The Product's design defect
existed at the time it left Alcon's control and placed into the stream of
commerce. The design defect was a producing cause of the occurrence in
question and the resulting injuries and/or damages to the Plaintiff.
Defendants are strictly liable for selling, manufacturing, designing, and/or
placing the defective product into the stream of commerce when there was a
safer alternative design which would have prevented and/or significantly
reduced the risk of the occurrence and damages in question without
substantially impairing the Product's utility. The safer alternative design
was both economically and technologically feasible at the time the Product
left the control of Defendants by the application of existing and reasonably
achievable scientific knowledge. The design defect was producing cause of
the occurrence in question, and the resulting damages sustained by
Plaintiff.

D. Malice

The negligent acts and/or omissions of defendants as set out above
constitute an entire want of care so as to indicate that the acts and/or
omissions in question were the result of conscious indifference to the
rights, welfare or safety of the Plaintiff, or that they constitute malice,
as that term is defined by law, so as to give rise to an award of exemplary
damages. Plaintiff would show that the acts and/or omissions of Defendants
which, when viewed objectively from the standpoint of Defendants at the time
of the occurrence, involved an extreme degree of risk, considering the
probability and magnitude of the potential harm to others; and of which
Defendants had actual, subjective awareness of the risk involved but,
nevertheless proceeded with conscious indifference to the rights, welfare
and safety of others. Plaintiff would show that the acts and/or omissions
of the Defendants as set out above, constitute malice as that term is
defined by law, so as to give rise to an award of exemplary damages against
Defendants Alcon.

E. Aggravated Assault

Defendants, by and through their employees, agents, vice-principals,
knowingly engaged in conduct which resulted in Plaintiff's injuries; placed
Plaintiff at risk for serious injuries; and/or were reasonably certain that
their conduct would cause serious injury to Plaintiff. Accordingly,
Defendants knowingly committed acts of aggravated assault which caused
serious bodily injury to Plaintiff in violation of Penal Code Section 22.01.

VII.
DAMAGES

As a direct and/or producing cause of Defendants' acts and/or
omissions, Plaintiff has and will sustain permanent injuries including but
not limited to:

- Past and future medical expenses;
- Past and future disfigurement;
- Past and future lost earning capacity;
- Past and future mental anguish;
- Past and future physical pain and suffering, and
- Exemplary or punitive damages.

IX.
EXEMPLARY DAMAGES

The negligent acts and/or omissions of all Defendants as set out
above constitute an entire want of care so as to indicate that the acts
and/or omissions in question were the result of conscious indifference to
the rights, welfare, and safety of Sandra Brown, or that they constitute
malice or gross neglect, as those terms are defined by law, so as to give
rise to an award of exemplary damages. Plaintiff would show that the
negligent acts and/or omissions of Defendants which, when viewed objectively
from the standpoint of the Defendants at the time of the occurrence,
involved an extreme degree of risk, considering the probability and
magnitude of the potential harm to others and of which Defendants had
actual, subjective awareness of the risk involved but, nevertheless
proceeded with conscious indifference to the rights, welfare and safety of o
thers. Plaintiff would show that the negligent acts and/or omissions of
the Defendants, as set out above, constitute gross neglect as that term is
defined by law, so as to give rise to an award of exemplary damages against
Defendants. The court should assess exemplary damages against Defendants
in an amount that will punish Defendants and deter others from engaging in
similar malicious conduct.

Further, since Defendants engaged in conduct which amounts to
Aggravated Assault; in violation of Penal Code Section 22.01, then the Texas
Legislature has abrogated all caps on exemplary damages for this case. Upon
entry of judgment, the "so called limitations on caps" on exemplary damages
shall not apply and the court can grant judgment for the entire amount of
exemplary damages found by the jury.

X.
PRE-JUDGMENT INTEREST

Plaintiff seeks recovery for pre-judgment interest at the highest
legal rate allowed by law.

XI.
REQUEST FOR DISCLOSURE AND PRIVILEGE LOG

Pursuant to Rule 194, you are hereby requested to disclose, within
fifty (50) days of service of this request, the information or material
described in Rule 194.2 (a)-(k). Also, pursuant to Rule 193.3, you are
hereby requested to produce a privilege log setting forth all documents you
are withholding from production based upon privilege.

XII.
DOCUMENTS TO BE USED

Pursuant to Rule 193.3(d) of the Texas Rules of Civil Procedure,
Plaintiff intends to use all documents exchanged and produced between the
parties including, but not limited to, correspondence and discovery
responses, during the trial of the above-entitled and numbered cause.

XIII.
JURY DEMAND

Plaintiff hereby requests a trial by jury and tenders herewith her
jury fee.
XIV.
PRAYER

WHEREFORE PREMISES CONSIDERED, Plaintiff prays that Defendants be
cited to appear and answer herein, and that on final hearing, Plaintiff
recover her damages from Defendants, including but not limited to all
compensatory and actual damages, punitive damages, court costs, attorney's
fees, pre-judgment and post-judgment interest at the highest legal rate and
for such other and further relief to which Plaintiff may show herself justly
entitled.

Respectfully Submitted
BOEHME & MOORE, L.L.P.
_________________________
RANDALL MOORE
1824 Eighth Avenue
Fort Worth, Texas 7610
(817) 207-9300
(817) 207-9400 (fax)
JOEL M. FINEBERG
Texas State Bar No. 07008520
R. DEAN GRESHAM
Texas State Bar No. 24027215
LAW OFFICES OF JOEL M. FINEBERG, P.C.
3811 Turtle Creek Blvd., Suite 1900
Dallas, Texas 75219
(214) 219-8828 (telephone)
(214) 219-8838 (facsimile)
ATTORNEYS FOR PLAINTIFF

serebel

2005-03-19, 6:22 pm

One lawsuit vs many thousands of happy consumers. Odds anyone?

SErebel

Glenn - USAEyes.org

2005-03-19, 6:22 pm

Since the allegations of inferior product exist, it seems to me that
it would almost be attorney malpractice to NOT include Alcon as a
defendant.

This is a particularly unusual case because the patient's doctor is
the patient's medical practice associate. She could not very easily
sue her own associate claiming medical malpractice, since that would
not bode too well for the quality of the doctors in her own clinic.
She can, however, litigate against the laser manufacture and escape
pointing the finger at her own doctor/associate.

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.

serebel

2005-03-19, 6:22 pm

Glenn - USAEyes.org wrote:
> Since the allegations of inferior product exist, it seems to me that
> it would almost be attorney malpractice to NOT include Alcon as a
> defendant.
>
> This is a particularly unusual case because the patient's doctor is
> the patient's medical practice associate. She could not very easily
> sue her own associate claiming medical malpractice, since that would
> not bode too well for the quality of the doctors in her own clinic.
> She can, however, litigate against the laser manufacture and escape
> pointing the finger at her own doctor/associate.
>

Amazing how this tidbit of info is left out at Rebecca's and all the
other loonie sites.

SErebel