January 25, 2005

Alcon Sued by Dr. Sandra Brown for Damage by Malfunctioning LadarVision Laser

CAUSE NO. 236 209603 05

SANDRA 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 others.  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

Posted by Admin at January 25, 2005 12:54 PM