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Associations join forces to quash laser subpoenas
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Three major U.S. ophthalmic organizations have joined forces to attempt to quash subpoenas issued to almost 600 ophthalmologists in a patent infringement suit between laser manufacturer rivals Nidek and Visx.
The American Academy of Ophthalmology (AAO), the Ophthalmic Mutual Insurance Company (OMIC) and the American Society of Cataract and Refractive Surgery (ASCRS) have joined in an effort to prevent Nidek from issuing the third-party subpoenas. Should the initiative fail, the groups hope to significantly reduce the number of physicians who will be required to respond or the burden that the response entails.
Stephen Lane, MD, president-elect of ASCRS, noted all three organizations have received complaints from members (or, in the case of OMIC, insured parties) about the subpoenas. The main complaint has been that the subpoenas are excessively burdensome on the physicians' staff time and costs.
“We are deeply troubled by what the evidence would suggest is a legal strategy to use our physician members as pawns in this seemingly endless legal battle between competitive commercial interests. It is wrong. We oppose it,” the three groups said in a joint statement issued yesterday.
OMIC president Timothy Padovese went as far as to call the subpoenas “not only unwarranted, but also truly reprehensible.”
Nidek issued a statement earlier this week clarifying its position in the matter.
According to Nidek, the subpoenas the company issued to Visx's physicians are not without precedent. In 2000, Visx similarly subpoenaed “virtually all Nidek users,” in a patent infringement lawsuit Visx brought against Nidek. Nidek’s actions in the present lawsuit thus mimic Visx’s actions, the company said.
The subpoenas issued to users in both the Visx and Nidek suits are meant to gather information on laser use in order to calculate damages.
Nidek claims to have paid all the legal fees associated with the subpoenas issued to its users by Visx in the earlier suit. That lawsuit is still pending.
Nidek also notes that Visx actually sued some of its laser users for patent infringement and says the company itself is representing its physician-users in those cases.
ASCRS is not becoming directly involved in the patent infringement lawsuit, the association stressed. John Ciccone, a spokesperson for ASCRS, said the organization obtained the services of the law firm Ferralla Brown and Martel in San Francisco for the purpose of attempting to either quash the subpoenas or secure a protective order against the subpoenas for those Visx surgeons served.
Visx and Nidek are currently engaged in discussions over the subpoenas. Should the companies fail to reach an agreement, ASCRS plans to file a motion to quash the subpoenas in Federal District Court on Dec. 13.