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ASCRS motion to quash subpoenas on hold

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SAN FRANCISCO — The American Society of Cataract and Refractive Surgery has postponed filing a motion to quash subpoenas issued by Nidek to more than 600 Visx excimer laser surgeons.

John Ciccone, a spokesman for ASCRS, told Ocular Surgery News that several proposals for a resolution of the situation were discussed by Visx and Nidek last week, causing ASCRS to hold off on filing its motion to quash the subpoenas.

The subpoenas request information on the numbers and types of refractive procedures the surgeons performed using Visx lasers. Nidek issued the subpoenas to build evidence of damages for a patent infringement lawsuit it brought against Visx in 2001. Unless an agreement is reached, surgeons who have not already responded to the subpoenas are required to do so by Jan. 31, 2003.

Jackie Cossman, a spokesperson for Visx, said the companies were progressing in the discussions.

“We are working with Nidek to resolve this, to involve the physicians as little as possible to get the information Nidek needs,” she said.

Lawyers for ASCRS lawyers are monitoring the discussions. If ASCRS agrees that a deal reached between the two companies is reasonable, its motion to quash the subpoenas will be dropped. ASCRS remains prepared to file its motion 5 days after cessation of talks should the two companies be unable to reach an agreement, Mr. Ciccone said.

“It’s kind of a floating date at this point,” he said.

ASCRS has offered a possible resolution to the situation, according to Mr. Ciccone. The organization has offered to gather the necessary information from a significantly smaller number of surgeons.

“This would be done on a voluntarily basis. Essentially, we would be using a sampling technique to project the whole,” Mr. Ciccone said.

Until an official deal is reached, surgeons should continue to expect to respond, Mr. Ciccone said. If a settlement is not reached between the companies the response date would likely be moved back to allow surgeons additional time to gather the requested information.

For more information about this late-breaking story, see the Jan. 15, 2003 issue of Ocular Surgery News.