Anger as surgeons are ‘used as pawns’ in Nidek US legal action

By Sean Henahan

FAIRFAX, VA — Hundreds of US refractive surgeons received unexpected mail recently that had nothing to do with the holiday season.
On the contrary, the envelopes contained subpoenas relating to an ongoing legal dispute between global ophthalmic surgical giants Nidek and VISX.

The subpoenas were a gift from lawyers representing Nidek in its long-running patent litigation with VISX regarding the excimer lasers used by both companies.
The subpoenas are seen as a legal manoeuvre to gain access to refractive surgeons’ records involving the use of the VISXlaser. Subpoenaed surgeons would be required to go through a costly and time-consuming process of assembling and delivering the records.
“It is unconscionable that businesses would involve their current and future customers in these types of corporate disputes. It adds unnecessary burdens to already overworked physicians and creates antagonism toward the companies. Nothing good can come from it,” said Executive Vice President of the American Society of Cataract and Refractive Surgery (ASCRS), H. Dunbar Hoskins Jr MD.

The reaction from the ophthalmic surgery community was prompt and furious. Three major US ophthalmic organisations entered an unprecedented alliance to respond to the move by Nidek.
The American Academy of Ophthalmology (AAO), the Ophthalmic Mutual Insurance Company (OMIC) and the ASCRS all joined in an effort to prevent Nidek issuing the third-party subpoenas. The groups joined forces following complaints from their respective members.

“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.
The coalition of professional organisations has hired legal representation. The goal is either to block the subpoenas completely or to otherwise protect surgeons who favour the VISX system.

“These subpoenas are not only unwarranted, but also truly reprehensible,” commented Timothy Padovese, President of OMIC.
Nidek responded to the uproar with a statement of its own. The company claimed that VISX made a similar move in 2000 when it subpoenaed Nidek users in a patent infringement lawsuit. Moreover, Nidek said it had paid the legal fees associated with the subpoenas issued to its users by VISX in that case which is still pending.

The current legal squabble concerns alleged infringement of patents covering excimer laser calibration, blend and/or transition zones and the treatment of mixed astigmatism.
Nidek asserted that it needed the information surgeons could provide on the number and types of procedures performed in order to assess the amount of damages Nidek could collect from VISX, and noted that it does not intend to sue physicians for patent damages it might collect.
“That the AAO and OMIC have joined ASCRS in this action acknowledges that we all see putting our members in the middle of corporate disputes as a serious policy concern,” said ASCRS President-elect, Stephen S. Lane MD.

Nidek recently suffered a major legal setback in a patent infringement suit brought by Alcon. The court held that Alcon, which bought Summit Technologies, was entitled to receive lost profits approaching $15 million from Nidek.
The court also held that Alcon was entitled to treble damages because of willful actions on the part of Nidek. Nidek has appealed the decision.

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