The LASIK industry & the FDA have conspired since LASIK's inception to purposely withhold information vital to the public in making a truly informed LASIK decision. With Lasikdecision.com, The hope is to show you what the industry and FDA would not and did not even think of doing until LASIK casualties started speaking out, and yet, they still did NOTHING.
Litigation


Some In The LASIK Industry Don't Want The Truth Out There! PDF Print E-mail
Wednesday, 11 December 2013 15:45

This is an enquiry e-mail on Dec. 4, 2013 via http://www.lasikdecision.com/ from:
Mike Hart <mhart@digourideas.com>

Dom Morgan,

I'm reaching out to you regarding the press releases you have on your site from the Krouner Law office.

This claim has or will be settled out of court. One of the conditions in the settlement requires Krouner to redact his published press releases.  Would you be open to the idea of removing those releases from the following page, assuming we sent some form of legal documentation?

This is the page on your site where the releases are:
http://www.lasikdecision.com/index.php?option=com_content&view=section&layout=blog&id=6&Itemid=32

Please let me know if this is something you are open to doing, and if it is, what sort of legal document would you need to see from me?

Sincerely,

Mike Hart

Although Mr. Morgan no longer operates his websites, he responded:

Yesterday I received an email (see below) from Mike Hart asking to remove information from websites. Mr. Hart works not as a representative of legal counsel, but for an advertising and marketing firm:
 
What and Who is Blue Onion? Organizationally, We are a full service digital advertising and marketing agency located near Denver, Colorado. Individually, we are a team of experienced, web savvy, internet gurus who are here to help you get found on the internet, plain and simple. We provide a complete package of services: web development, total search engine marketing (paid and organic), social media, as well as traditional print, TV, radio, and video advertising production. Anything and everything you might need to help your brand get found. One could say there are many layers to the service we provide — that would be correct! Why Should I Choose Blue Onion ? We are a results focused agency that utilizes tried and true marketing tactics to help get your business found on the internet. We don’t chase the newest shining object or marketing ploy (though we do pay attention to Google algorithm updates). Plus, we take care of everything. We design your logos, produce your TV, tweet your twitter, and e- your commerce — all in one building. We prove our efforts to you through clear and concise reporting, on a schedule that works best for you. How Can I Contact Blue Onion ? We would love to put together a package and a quote to fit whatever your specific needs are. Please get in touch with us in whatever way is most convenient to you. You may fill out a form here , send us a TWEET , send us a message on Facebook , send us an e-mail at info@digourideas.com, or via the good ol’ fashion telephone at : 303-232-1100
 
Please pass this information along as no one is obligated to remove the information requested.

 

 
Nevyas v Morgan PDF Print E-mail
Saturday, 18 February 2012 09:15

Drs. Herbert Nevyas, Anita Nevyas-Wallace, & Nevyas Eye Associates

Bala Cynwyd, PA / Philadelphia, PA / Marlton, NJ

(The dates are links to the referenced documents provided)

In April, 2000 Morgan filed a medical malpractice lawsuit against Herbert Nevyas and his daughter Anita Nevyas-Wallace, two Philadelphia area LASIK doctors and their practice, Nevyas Eye Associates.

In 2002, he put up a website, LASIKsucks4u.com, to warn others of the risks of LASIK surgery. Morgan found out he was not alone. At the time he started his website, there had been multiple cases of medical malpractice (including his) filed against these doctors and their business, as listed in the Philadelphia Civil Docket Access System.

000402621 or 031100946

In response to posting this website and, after the medical malpractice lawsuit, including the Nevyases names, Morgan was sued. Through threats of lawsuit, intimidation, and (he believed) violation of his First Amendment rights, his website was shut down three times previously, the 2nd time after a temporary restraining order was sought, and denied (by the courts). Because of the way Morgan's medical malpractice lawsuit was handled through the courts, he believed it necessary to document this case in its entirety.

Below is a chronology of Morgan's litigation with Drs. Herbert Nevyas, Anita Nevyas-Wallace, and Nevyas Eye Associates (Nevyases), Bala Cynwyd, PA (They could not be named previously due to litigation).  All of the documents are filed with the courts, and are public record:

Dates are separated to reduce page load times due to volume. Click date to view date filings in new window:

July/August 2003

Morgan updated his website to include information obtained about Drs. Herbert Nevyas and Anita Nevyas-Wallace, and Nevyas Eye Associates.

After receiving a cease and desist (PAGE 1, PAGE 2) letter from Nevyases attorney, Morgan put his website back to its original state and responded with a letter of intent. In the course of a week, his website was shut down after YAHOO also received a letter. After hosting with a new company and determining the legal extent of their threat and making changes to the site, Morgan posted new information with documents to support.

November 2003

On November 7th, the Nevyases filed a lawsuit against Morgan for defamation (PART_1, PART_2, PART_3), also claiming he broke an agreement with them. They were asked numerous times by Morgan's (then) attorney and also filed with the courts, to state what they felt were legally objectionable with his website. They refused, and filed an emergency petition for a Temporary Restraining Order (TRO), which was denied. On November 26th, Nevyases filed a motion for reconsideration (TRO), which was also denied.

November 26, 2003 (PART1, PART2) - Plaintiffs filed for Reconsideration.

In December, Morgan filed an answer to a complaint, with New Matter and a Counterclaim.

2004

After the Nevyases were denied reconsideration for TRO, they withdrew the lawsuit against Morgan in Philadelphia Court, and filed in Federal Court (Nevyas v. Morgan, Case 2:04-cv-00421-JCJ, Document 16 (E.D. Pa., March 12, 2004)) . This time Nevyases tried for subject matter jurisdiction by claiming the content on Morgan's site violated the Lanham Act, and also joined his attorney for letters written to the FDA on Morgan's behalf which Morgan posted on his site. Morgan published those letters believing they supported all of the other documents on his site, and the documents on the site supported those letters. The Nevyases also attempted another restraining order, which they never got. This action was dismissed for failure to state a federal claim.

The Nevyases again brought suit against Morgan in Philadelphia court using the same method as federal court, by joining his attorney as a defendant. The court filings listed below are by the Nevyases, and Morgan's responses:

2005

January 18, 2005 (PART1, PART2) - Amended Preliminary Objections To Plaintiff's Amended Complaint

The case went to trial on July 26, 2005 on the claim for specific performance, and the court ruled in the Nevyas' favor. It found that both parties entered into an agreement whereby in exchange for the Nevyases not filing a lawsuit against Morgan, that Morgan would remove all defamatory statements about the Nevyases from the site and refrain from defaming them in the future. But the trial court's order went a bit further -- it forbid Morgan from mentioning the Nevyases at all, on lasiksucks4u.com which was the only site mentioned up to trial, or any other website.

Morgan believed that Judge Eugene Maier erred in his ruling, and sought the help of  Public Citizen for appeal. The ACLU also helped obtain local counsel for Morgan (Appellant Brief - Superior Court). After Morgan appealed Judge Maier's ruling with the help of Public Citizen, parts of the case were still before Judge Maier. As shown on the case docket (partial listing of docket below), everything filed on Morgan's behalf since filing his appeal was DENIED by Judge Maier!

 

11-MAY-200703:27 PM ORDER VACATED BY APPELLATE CT 11-MAY-200712:00 AM
DOCKET ENTRY: ORDER OF THE SUPERIOR COURT AT 3084 EDA 2005 THAT THE ORDER
OF THE COURT OF COMMON PLEAS IS VACATED AND CASE IS REMANDED FOR
PROCEEDINGS. JURISDICTION RELINQUISHED……3/9/07 RECORD RETURNED.
21-MAY-200702:27 PM MISCELLANEOUS MOTION FRIEDMAN, STEVEN A 23-MAY-200712:00 AM
DOCKET ENTRY: 76-07051276 RESPONSE DATE 6-11-07. MOTION TO RECUSE
05-JUN-200709:58 AM ANSWER (MOTION/PETITION) FILED 07-JUN-200712:00 AM
DOCKET ENTRY: 76-07051276 ANSWER OF PLAINTIFF’S HERBERT J. NEVYAS, M.D.,
ANITA NEVYAS-WALLACE, M.D. & NEVYAS EYE ASSOCIATES, P.C. TO MOTION TO RECUSE.
15-JUN-200711:01 AM MOTION ASSIGNED 15-JUN-200711:01 AM
DOCKET ENTRY: 76-07051276 MOTION TO RECUSE ASSIGNED TO JUDGE MAIER ON
6-18-07.
11-JUL-200710:20 AM ORDER ENTERED/236 NOTICE GIVEN MAIER, EUGENE E 11-JUL-200710:21 AM
DOCKET ENTRY: 76-07051276 IT IS ORDERED THAT DEFT, STEVEN FRIEDMAN’S
MOTION TO RECUSE IS DENIED. BY THE COURT …MAIER,J 7/2/07
12-JUL-200712:19 PM MISCELLANEOUS MOTION MORGAN, DOMINIC 13-JUL-200712:00 AM
DOCKET ENTRY: 02-07070902 RESPONSE DATE 8-1-07 (PRO SE DEFENDANT DOMINIC
J. MORGAN’S MOTION TO RECUSE JUDGE EUGENE MAIER FILED).
18-JUL-200702:02 PM ANSWER (MOTION/PETITION) FILED SILVERMAN, LEON W 18-JUL-200712:00 AM
DOCKET ENTRY: 02-07070902 ANSWER OF PLAINTIFFS’ HERBERT J. NEVYAS, M.D.,
ANITA NEVYAS-WALLACE, M.D. AND NEVYAS EVE ASSOCIATES, P.C. TO MOTION TO
RECUSE.
23-JUL-200711:37 AM MOTION FOR SUMMARY JUDGMENT MORGAN, DOMINIC 24-JUL-200712:00 AM
DOCKET ENTRY: 97-07071697 RESPONSE DATE 8/22/07
30-JUL-200710:31 AM MOT-PROCEED IN FORMA PAUPERIS MORGAN, DOMINIC 02-AUG-200712:00 AM
DOCKET ENTRY: 45-07072345 RESPONSE DATE 8-20-2007:
30-JUL-200705:08 PM MISCELLANEOUS MOTION MORGAN, DOMINIC 13-AUG-200712:00 AM
DOCKET ENTRY: 45-07072345 CROSS MOTION FOR DECLARATORY JUDGMENT FILED.
RESPONSE DATE: 08/20/07.
03-AUG-200710:18 AM MOTION ASSIGNED 03-AUG-200710:18 AM
DOCKET ENTRY: 02-07070902 MOTION TO RECUSE ASSIGNED TO JUDGE MAIER ON
8-6-07.
06-AUG-200702:13 PM MOTION-JUDGMENT ON PLEADINGS MORGAN, DOMINIC 20-AUG-200712:00 AM
DOCKET ENTRY: 54-07080054 RESPONSE DATE 8-27-07.
10-AUG-200703:10 PM ANSWER (MOTION/PETITION) FILED 13-AUG-200712:00 AM
DOCKET ENTRY: 97-07071697 ANSWER OF PLAINTIFFS’ HERBERT J. NEVYAS, M.D.,
ANITA NEVYAS-WALLACE, M.D. AND NEVYAS EYE ASSOCIATES, P.C. TO MOTION FOR
SUMMARY JUDGMENT.
13-AUG-200705:06 PM CORRECTIVE ENTRY 13-AUG-200712:00 AM
DOCKET ENTRY: 45-07072345 PLEASE NOTE THE MOTION DOCKETED ON 07/30/07
SHOULD READ AS A MOTION FOR DECLARATORY JUDGMENT FILED NOT AS A MOTION FOR
INFORMA PAUPERIS. MXG@CIVIL.
14-AUG-200703:10 PM MOTION FOR SUMMARY JUDGMENT MORGAN, DOMINIC 15-AUG-200712:00 AM
DOCKET ENTRY: 35-07080835 RESPONSE DATE 9/13/07
17-AUG-200710:33 AM ANSWER (MOTION/PETITION) FILED 21-AUG-200712:00 AM
DOCKET ENTRY: 54-07080054 ANSWER OF PLAINTIFFS’ HERBERT J. NEVYAS, M.D.,
ANITA NEVYAS-WALLACE, M.D. AND NEVYAS EYE ASSOCIATES, P.C. TO MOTION FOR
JUDGMENT ON THE PLEADINGS.
22-AUG-200710:59 AM REPLY FILED MORGAN, DOMINIC 23-AUG-200712:00 AM
DOCKET ENTRY: 45-07072345 REPLY FILED TO MOTION FOR DECLARATORY JUDGMENT.
22-AUG-200711:01 AM REPLY FILED MORGAN, DOMINIC 23-AUG-200712:00 AM
DOCKET ENTRY: 97-07071697 REPLY FILED TO MOTION FOR S.J.
22-AUG-200711:02 AM REPLY FILED MORGAN, DOMINIC 23-AUG-200712:00 AM
DOCKET ENTRY: 54-07080054 REPLY FILED TO MOTION JOUDGMENT ON THE
PLEADINGS.
23-AUG-200702:29 PM MOTION ASSIGNED 23-AUG-200702:29 PM
DOCKET ENTRY: 45-07072345 MOTION FOR DECLARATORY JUDGMENT ASSIGNED TO
JUDGE GREENSPAN ON 8-24-07.
24-AUG-200703:02 PM MOTION ASSIGNED 24-AUG-200703:02 PM
DOCKET ENTRY: 97-07071697 MOTION FOR SUMMARY JUDGMENT ASSIGNED TO JUDGE
MAIER ON 8-27-07.
24-AUG-200703:03 PM MOTION ASSIGNMENT UPDATED 24-AUG-200703:04 PM
DOCKET ENTRY: 97-07071697 MOTION FOR SUMMARY JUDGMENT MOTION ASSIGNMENT
DATE UPDATED UNTIL 9-13-07.
24-AUG-200703:04 PM MOTION ASSIGNMENT UPDATED 24-AUG-200712:00 AM
DOCKET ENTRY: 45-07072345 MOTION FOR DECLARATORY JUDGMENT RE-ASSIGNED TO
JUDGE MAIER ON 8-27-07.
30-AUG-200702:05 PM MOTION ASSIGNED 30-AUG-200702:05 PM
DOCKET ENTRY: 54-07080054 MOTION FOR JUDGMENT ON PLEADINGS ASSIGNED TO
JUDGE MAIER ON 8-31-07.
11-SEP-200702:30 PM ANSWER (MOTION/PETITION) FILED NEVYAS MD, HERBERT J 13-SEP-200712:00 AM
DOCKET ENTRY: 45-07072345 ANSWER OF PLAINTIFF TO MOTION FOR DECLARATORY
JUDGMENT.
12-SEP-200711:44 AM ANSWER (MOTION/PETITION) FILED MORGAN, DOMINIC 13-SEP-200712:00 AM
DOCKET ENTRY: 02-07070902 REPLY OF DEFENDANT TO PLAINTIFF’S RESPONSE TO
MOTION TO RECUSE.
19-SEP-200702:11 PM MOTION ASSIGNED 19-SEP-200702:11 PM
DOCKET ENTRY: 97-07071697 MOTION FOR SUMMARY JUDGMENT ASSIGNED TO JUDGE
MAIER ON 9-20-07.
19-SEP-200702:16 PM MOTION ASSIGNED 19-SEP-200702:16 PM
DOCKET ENTRY: 35-07080835 MOTION FOR SUMMARY JUDGMENT ASSIGNED TO JUDGE
MAIER ON 9-20-07.
12-OCT-200710:37 AM ORDER ENTERED/236 NOTICE GIVEN MAIER, EUGENE E 12-OCT-200710:37 AM
DOCKET ENTRY: 45-07072345 IT IS ORDERED THAT DEFT, DOMINIC MORGAN’S MOTION
FOR DECLARATORY JUDGMENT IS DENIED. BY THE COURT …MAIER,J 10/4/07
12-OCT-200710:39 AM ORDER ENTERED/236 NOTICE GIVEN MAIER, EUGENE E 12-OCT-200710:39 AM
DOCKET ENTRY: 02-07070902 IT IS ORDERED THAT DEFT, DOMINIC MORGAN’S MOTION
TO RECUSE IS DENIED. BY THE COURT …MAIER,J 10/4/07
12-OCT-200710:39 AM ORDER ENTERED/236 NOTICE GIVEN MAIER, EUGENE E 12-OCT-200710:40 AM
DOCKET ENTRY: 97-07071697 IT IS ORDERED THAT DEFT, DOMINIC MORGAN’S IN
FORMA PAUPERIS CROSS-MOTION FOR DECLARATORY JUDGMENT IS DENIED. BY THE COURT
…MAIER,J 10/4/07
12-OCT-200710:40 AM ORDER ENTERED/236 NOTICE GIVEN MAIER, EUGENE E 12-OCT-200710:42 AM
DOCKET ENTRY: 54-07080054 IT IS ORDERED THAT DEFT, DOMINIC MORGAN’S IN
FORMA PAUPERIS CROSS-MOTION FOR DECLARATORY JUDGMENT IS DENIED. BY THE COURT
…MAIER,J 10/4/07
12-OCT-200710:42 AM ORDER ENTERED/236 NOTICE GIVEN MAIER, EUGENE E 12-OCT-200710:43 AM
DOCKET ENTRY: 35-07080835 IT IS ORDERED THAT DEFT, DOMINIC MORGAN’S MOTION
FOR SUMMARY JUDGMENT IS DENIED. BY THE COURT …MAIER,J 10/4/07
16-OCT-200709:23 AM ORDER ENTERED/236 NOTICE GIVEN MAIER, EUGENE E 16-OCT-200712:00 AM
DOCKET ENTRY: 45-07072345 IT IS ORDERED THAT THE CROSS-MOTION FOR
DECLARATORY JUDGMENT IS GRANTED. SEE ORDER FOR TERMS. BY THE COURT …MAIER,J
10/4/07
16-OCT-200709:24 AM ORDER ENTERED/236 NOTICE GIVEN MAIER, EUGENE E 16-OCT-200712:00 AM
DOCKET ENTRY: 45-07072345 IT IS ORDERED THAT THE ORDER GRANTING
CROSS-MOTION FOR DECLARATORY JUDGMENT WAS SIGNED IN ERROR AND IS THEREFORE
RECONSIDERED AND DENIED. BY THE COURT …MAIER,J 10/15/07
16-OCT-200704:16 PM MOTION FOR JUDGMENT 17-OCT-200712:00 AM
DOCKET ENTRY: 61-07101461 RESPONSE DATE 11-5-07. (PLFS, HERBERT J. NEVYAS,
M.D., ANITA NEVYAS WALLCE, M.D. AND NEVYAS EYS ASSOCIATES, P.C.)
02-NOV-200711:17 AM ANSWER (MOTION/PETITION) FILED MORGAN, DOMINIC 05-NOV-200712:00 AM
DOCKET ENTRY: 61-07101461 ANS FILED TO MOTION FOR JUDGMENT FOLLOWING
REMAND.
08-NOV-200709:51 AM MOTION ASSIGNED 08-NOV-200709:51 AM
DOCKET ENTRY: 61-07101461 MOTION FOR JUDGMENT ASSIGNED TO JUDGE MAIER ON
11-9-07.
31-DEC-200701:53 PM ORDER ENTERED/236 NOTICE GIVEN MAIER, EUGENE E 31-DEC-200701:54 PM
DOCKET ENTRY: 61-07101461 AND NOW, THIS 28TH DAY OF DECEMBER, 2007, UPON
CONSIDERATION OF PLAINTIFFS’ MOTION FOR JUDGMENT ON REMAND AND DEFENDANT
MORGAN’S RESPONSE, THE MOTION IS DENIED. BY THE COURT: HON. EUGENE EDWARD J.
MAIER, 12-28-07.
09-JUN-200811:50 AM MISCELLANEOUS MOTION NEVYAS MD, HERBERT J 13-JUN-200812:00 AM
DOCKET ENTRY: 66-08060766 MOTION FOR EVIDENTIARY HEARING ON REMAND IN
ACCORD WITH THE ORDER OF THE SUPERIOR COURT. RESPONSE DATE 06-30-08.
30-JUN-200804:09 PM ANSWER (MOTION/PETITION) FILED MORGAN, DOMINIC 07-JUL-200812:00 AM
DOCKET ENTRY: 66-08060766 PRO SE DEFENDANT DOMINIC J. MORGAN’S RESPONSE TO
PLAINTIFFS NEVYASES’ MOTION FOR AN EVIDENTIARY HEARING FILED.
16-JUL-200812:31 PM MOTION ASSIGNED 16-JUL-200812:31 PM
DOCKET ENTRY: 66-08060766 MOTION FOR AN EVIDENTIARY HEARING ON REMAND IN
ACCORD WITH THE ORDER OF THE SUPERIOR COURT ASSIGNED TO JUDGE MAIER ON
07-17-2008.

2007

THE OPINION OF THE SUPERIOR COURT OF PENNSYLVANIA AS OF MARCH 09, 2007

In his 2009 run for Pennsylvania Supreme Court Justice, the Honorable Judge Panella answers to questions posed by the Pennsylvania State Education Association in their 2009 Supreme Court Questionnaire. He cites this case as one of his most important:

SOURCE

11. What are the most important cases you have handled as an attorney or as a Judge?

"In my private practice as an attorney, and as a judge, I have always considered family law cases as the most important because the personal lives of the litigants are at stake. Custody, divorce, support and related issues affect the welfare, living conditions and wellbeing of all of our citizens. However, these cases are highly fact driven, and it is impossible to classify them into groups.

In addition to these family law cases, I have always been very sensitive to First Amendment issues. I strongly believe that our democratic system in America would not continue to exist without a free press to report on the dealings of government. The following cases, from my career as an appellate and trial judge, represent my approach when freedom of speech and freedom of the press are involved:

1. Nevyas v. Morgan, 921 A.2d 8 (Pa.Super. 2007).
First Amendment Rights - Internet Users

A Pennsylvania resident left legally blind after lasik eye surgery created a website which included criticism of his doctors. Under threat of suit, he agreed to eliminate certain statements the doctors alleged were defamatory. He later added new material criticizing the doctors. The doctors sued, claiming that because they had agreed not to sue him if he removed the initial defamatory allegations, the agreement was binding in perpetuity, and he could not comment negatively on them.

I authored an Opinion which upheld the patient's freedom of speech rights. Speech on the internet receives First Amendment protection. There was no agreement to withhold assertions which were not libelous although critical of the doctors' performance."

August 14, 2007 - (PART1 , PART2, PART3, PART4, PART5, PART6, PART7, PART8, PART9, PART10) - Defendant Morgan's Motion For Summary Judgment - Nevyases never produced documents until Apri-May 2005 (2 years AFTER Morgan's Medical Malpractice Lawsuit Ended)

 

2008

June 09, 2008: “Plaintiffs Herbert J, Nevyas, M.D., Anita Nevyas-Wallace, M.D. and Nevyas Eye Associates, P.C., by and through their undersigned counsel, hereby Motion this Honorable Court to order an evidentiary hearing to determine whether Morgan’s website postings violate his contractual agreement with Plaintiffs and whether any new postings are false and defamatory. In support of their petition, Plaintiffs aver as follows:”

2009

June 17, 2009:  "Before this court can rule on the merits of the defamation claim, it must first determine the Public Figure status of  Plaintiffs. This determination of a plaintiff’s public figure status is a particularized and fact sensitive analysis, but it is also a question of law to be determined by the court."

July 09, 2009: “PRO SE DEFENDANT MORGAN’S RESPONSE TO DEFENDANT FRIEDMAN’S MOTION TO DETERMINE PLAINTIFFS’ PUBLIC FIGURE STATUS, AND CROSSMOTIONS FOR COMPULSORY NONSUIT OR JUDGMENT OF NON PROS, AND/OR JUDGMENT ON THE PLEADINGS; AND/OR SUMMARY JUDGEMENT TO COUNTS I AND II OF PLAINTIFFS’ AMENDED COMPLAINT. 1. The Nevyas plaintiffs ignored Judge Sylvester’s instructions. See Section 1 of the Factual and Procedural History in the attached Memorandum. 2. The Nevyas plaintiffs filed an erroneous federal lawsuit. See Section 2 of the Factual and Procedural History in the attached Memorandum. 3. The Nevyas plaintiffs failed to properly transfer their federal action back to this court. See Section 3 of the Factual and Procedural History in the attached Memorandum. 4. The Nevyas plaintiffs exceeded the one-year statute of limitations against defendant Morgan’s pro bono attorney. See Section 4 of the Factual and Procedural History in the attached Memorandum. 5. The Nevyas plaintiffs improperly claimed that Morgan conspired with Friedman, in their reinstated claim. See Section 5 of the Factual and Procedural History in the attached Memorandum. 6. There were motions decided while the case was officially in abeyance. See Section 6 of the Factual and Procedural History in the attached Memorandum. 7. There was a motion decided while the case was officially in stay. See Section 7 of the Factual and Procedural History in the attached Memorandum. 8. The Superior Court’s Remand. See Section 8 of the Factual and Procedural History in the attached Memorandum. (This quotes from the Superior Court’s Remand - there is no question presented and no argument for this section.) 9. The Nevyas plaintiffs fail to allege that defendant Morgan re-posted the same statements that had been on his website as of July 30, 2003. See Section 9 of the Factual and Procedural History in the attached Memorandum. 10. The Nevyas plaintiffs try to excuse and exclude their failure to allege that defendant Morgan re-posted the same statements that had been on his website as of July 30, 2003. See Section 10 of the Factual and Procedural History in the attached Memorandum. 11. The Nevyas plaintiffs failed to honor their contract with defendant Morgan. See Section 11 of the Factual and Procedural History in the attached Memorandum. 12. The statements posted on Morgan’s website are not defamatory because they are true. See Section 12 of the Factual and Procedural History in the attached Memorandum. 13. The statements on Morgan’s website are either fact or opinion. See Section 13 of the Factual and Procedural History in the attached Memorandum. 14. The Nevyas plaintiffs are at least limited purpose public figures. See Section 14 of the Factual and Procedural History in the attached Memorandum. 15. If the Nevyas plaintiffs had not sworn falsely, and had produced the documents they withheld, this instant case would not exist. See Section 15 of the Factual and Procedural History in the attached Memorandum. 16. The above are relevant to defendant Morgan’s counter-suit. See Section 16 of the Factual and Procedural History in the attached Memorandum. WHEREFORE defendant Morgan moves this Honorable Court enter a suitable order granting the Motion of defendant Friedman and the instant Cross Motions of defendant Morgan.

July 17, 2009: “Plaintiffs deny that the outcome of the surgery was poor and further deny that Morgan is legally blind.

 

July 20, 2009: “PRO SE DEFENDANT MORGAN’S REPLY TO “PLAINTIFFS’ RESPONSE TO DEFENDANT’S MOTION TO DETERMINE WHETHER PLAINTIFFS ARE PRIVATE FIGURES OR LIMITED PURPOSE PUBLIC FIGURES” The Nevyas plaintiffs’ Response shows them again trying to have it both ways, saying one thing to this court and a different thing outside this court. Examples include: 1. At paragraph 4 plaintiffs tell this court: “Plaintiffs deny that the outcome of the surgery was poor and further deny that Morgan is now legally blind.” Outside this court, plaintiff Herbert Nevyas states: “...he reported vision as low as 20/200 in each eye when I last saw him. I know he has been judged legally blind....and that he is presently receiving Social Security Disability payments because of his legal blindness.” Exhibit D. 2. At paragraph 5 plaintiffs tell this court: “Plaintiffs, after reasonable investigation, have insufficient information to determine whether Defendant Friedman is a practicing physician....”

July 27, 2009: “Plaintiffs are also incorrect in the facts as they have ignored the evidence indicating that they voluntarily injected themselves into the public discussion concerning LASIK surgery, and admittedly sought to influence the public debate. Yet, even under plaintiffs’ narrow and misguided interpretation of the public controversy requirement,  the facts still indicate that Plaintiffs are limited purpose public figures with regard to the defamation claim against Friedman.”

August 03, 2009: “More basically, a general concern over the safety of  LASIK is just that - - a concern. It is not a public controversy.  An actual public controversy must be a “real dispute, the outcome of which affects the general public or some segment of it in some appreciable way.”

August 05, 2009: “PRO SE DEFENDANT MORGAN’S SUR-REPLY TO “PLAINTIFFS’ SUR-REPLY MEMORANDUM IN OPPOSITION TO DEFENDANT FRIEDMAN’S MOTION CONCERNING PLAINTIFF’S PUBLIC FIGURE STATUS.” Plaintiffs’ Sur-Reply shows them again trying to have it both ways, saying one thing to this court in their Amended Complaint, and a different thing in their Sur-Reply. Plaintiffs worked hard purporting themselves as “doctor’s doctors” at the forefront of eye care and LASIK surgery. For argument’s sake, even if they did not make themselves limited purpose public figures, Morgan did. By the time Friedman purportedly defamed them (by supposedly having Morgan post letters to the FDA), Morgan’s website was already prominent for almost one year and the public was already researching plaintiffs on the internet. As plaintiffs documented in their Amended Complaint at paragraphs 15, 17, 22, 23, 25, 52, 56, 57, 58:

November 09, 2009: THE COURT FINDS THAT PLTFS ARE "LIMITED PURPOSE PUBLIC FIGURES" RELATIVE TO THE INSTANT DEFAMATION CASE. BY THE COURT ...ROGERS,J 10/14/09

November 12, 2009: “10.  Moreover, the finding that plaintiffs are limited purpose public figures changes the burden of proof, requiring that plaintiffs prove that defendant’s statements are false, rather than requiring defendants to prove as an affirmative defense that their statements were true.  11.  This sea-change in the burden of proof may require additional issues to be decided at trial. For example, it may re-open issues which were litigated in the underlying malpractice action upon which plaintiffs prevailed. The court’s ruling may give plaintiffs a second bite at the apple.

November 30, 2009: “At a May 5, 2009 Status Conference, both Plaintiffs’ counsel and Friedman counsel advised this Court that the matter of Plaintiffs’ public figure status needed to be resolved. Under Pennsylvania law, in any defamation case where the plaintiff is alleged to be a public figure, a court must first make a threshold determination as to the plaintiff’s public figure status. That determination will clarify the parties’ respective burden of proof at any upcoming trial. This Court then set a briefing schedule and each side submitted briefs. By Order dated October 14, 2009, this Court ruled that plaintiffs were “limited purpose public figures” for purposes of the defamation claim.”

December 02, 2009: “Plaintiffs’ instant motion does not claim that this Court’s Order eliminates the need for trial, but only that this Court’s Order makes plaintiffs’ success at trial more difficult. According to plaintiffs’ argument, almost anything a judge orders is a “controlling issue of law” and subject to piecemeal appeal, including defendant Morgan’s unopposed cross-motions currently before this Court.

December 08, 2009: REPLY BRIEF IN SUPPORT OF PLAINTIFFS’ MOTION TO AMEND ORDER TO CERTIFY FOR PURPOSES OF TAKING AN INTERLOCUTORY APPEAL An interlocutory appeal is appropriate in this action because the question of whether Dr. Nevyas, Dr.Wallace and their medical practice are limited purpose public figures is the controlling question in this litigation. The Court’s finding that plaintiffs are limited purpose public figures has a profound effect on this litigation. It requires Plaintiffs to prove actual malice.

December 23, 2009: “Plaintiffs’ reply continues to ignore the proper standard for determining whether an interlocutory appeal should be permitted. Plaintiffs argue that an interlocutory appeal is warranted because the public figure determination is “a controlling question in this litigation” and that the Court’s finding has “a profound effect on this litigation”. That argument ignores the proper standard under 42 Pa. C.S.A. §702(b). Indeed, if Plaintiff’s argument were accepted, then any significant ruling by a trial court which decides an important issue or which effects the parties in a case, would be grounds for an interlocutory appeal.”

December 24, 2009: “Plaintiffs assert that, if trial occurs with plaintiffs designated limited purpose public figures, they will appeal  post-trial. Plaintiffs thus purport that is in everyone's interest to have an interlocutory appeal now, purportedly to save time, etc. Plaintiffs lack credibility since, as the United States Supreme Court states, interlocutory appeals can increase trial court difficulty, delay, add costs, diminish coherence, and create additional and unnecessary appellate court work:

Nevyas v. Morgan (UDRP Action 2010)

On July 1, 2010, Drs. Herbert Nevyas and Dr. Anita Nevyas-Wallace filed requests for arbitration under the Uniform Domain-Name Dispute-Resolution Policy (“UDRP”) with the National Arbitration Forum, seeking the transfer of the domain names NevyasLasik.com, HerbertNevyasLasik.com, and AnitaNevyasLasik.com.

According to the Complaint, the websites located at the domain names at issue in the proceeding contain “disparaging and false remarks about Complainants” and falsely imply “that they are owned by Complainants, not that they are owned by an individual criticizing Complainants.”

What was NEVER ADDRESSED

Exactly 2 WEEKS AFTER THEY COMPLAINED TO THE NATIONAL ARBITRATION FORUM, Anita’s son Jonathan Wallace registered 87 domain names, using 30 different variations of Morgan's name and or websites. In December 2010, the Nevyases decided they did not want to litigate the case in Federal Court due to “cost of litigation”.  Morgan did not find the information regarding what Anita Nevyas’ son did until well after December 2010. This was never brought up or addressed to the courts because Morgan did not, nor did he care.

From Their Complaint:

Complainants Dr. Herbert Nevyas and Dr. Anita Nevyas-Wallace are surgical and medical ophthalmologists that have performed lasik surgery since at least as early as 1995. See Verification of Dr. Anita Nevyas-Wallace, attached as Ex. B. Dr. Herbert Nevyas founded Nevyas Eye Associates in 1964 and has directed its medical and surgical ophthalmology practice since that time. Ex. B. Dr. Anita Nevyas changed her name to Anita Nevyas-Wallace in 1987, but continues to use the name Anita Nevyas. Ex. B. Both of Complainants have practiced lasik surgery continuously at Nevyas Eye Associates since at least as early as 1995. Ex. B. Their practices are described at the website

www.nevyas.com. See Printouts from Nevyas.com attached as Exhibit C.

Complainants have advertised their lasik practice to the general public since 1992 and have done so continuously using the marks “Dr. Herbert Nevyas,” “Dr. Anita Nevyas,” “Nevyas Eye Associates,” and “Nevyas Lasik.” Ex. B. In addition to traditional forms of advertising and marketing, Complainants advertise their practice online through the websites Nevyas.com and NevyasVideo.com, through informational articles posted on other websites, and through online videos at websites such as YouTube.com. Ex. B. For example, Complainants’ YouTube videos display the headings “Dr. Herbert J. Nevyas LASIK” and “Nevyas Eye Associates LASIK.” See YouTube videos displaying marks, attached as Exhibit D.

The Forum has previously recognized that individuals have common law trademark rights in their own names enforceable in domain dispute proceedings. See Jerry Damson, Inc. v. Texas International Property Assoc., F0702000916991 (Nat. Arb. Forum Apr. 10, 2007) (Jerry Damson doing business under the mark “Jerry Damson Acura” had right to JerryDamsonAcura.com domain name). See also Margaret Drabble v. Old Barn Studios Ltd., D2001-020 (WIPO Mar. 26, 2001) (author Margaret Drabble had common law rights to MarthaDrabble.com domain); Jeanette Winterson v. Mark Hogarth, D2000-0235 (WIPO May 22, 2000) (Jeanette Winterson had common law rights to her name); Julia Fiona Roberts v. Russell Boyd D2000-0210 (WIPO May 29, 2000) (Julia Roberts had common law rights to “Julia Roberts”); Thibodeau, v. Yomtobian, FA 94868 (Nat. Arb. Forum June 28, 2000) (rights to “Dr. Lauren” in dispute re: www.drlauren.com).

The complainant also need not be a famous individual for common law rights in his or her name to arise. See, e.g., Dr. Paul Guerrino v. Yin Chew, FA0204000110873 (Nat. Arb. Forum June 17, 2002) (Practicing dentist Dr. Guerrino owned rights to www.guerrinodentistry.com).

Finally, it is not necessary that Complainants own a trademark registration for their mark for that mark to be protected. See Jerry Damson, supra; Broad Corp. v. Renteria, D2000-0050 (WIPO Mar. 23, 2000) (the Policy “does not distinguish between registered and unregistered trademarks and service marks in the context of abusive registration of domain names” and applying Policy to “unregistered trademarks and service marks”). Complainants have continuously used the “Nevyas Lasik” mark and similar trademarks containing their names and the “Nevyas” surname in connection with their medical and surgical ophthalmology practices since at least as early as 1995. Ex. B. As such, they have developed common law rights in the marks. See Tuxedos By Rose v. Nunez, FA 95248 (finding common law rights in a mark where its use was continuous and ongoing).

FACTUAL AND LEGAL GROUNDS

This complaint is based on the following factual and legal grounds:

[a.] Respondent’s domain names are nearly identical to Complainants’ trademarks, pursuant to ICANN Policy ¶ 4(a)(i), and are being used in a deceptive manner.

Respondent’s domain names AnitaNevyasLasik.com, HerbertNevyasLasik.com, and NevyasLasik.com are nearly identical to Complainants’ names and trademarks. Complainants are well-known lasik surgeons whose services are advertised in connection with the marks “Herbert Nevyas Lasik” and “Anita Nevyas Lasik” and the domains Nevyas.com and NevyasVideo.com. It is well-established that the addition of a generic top level domain such as “.com” to a trademark, or other minor changes to the mark, do not cause the domain name to be non-identical. See, e.g., Jerry Damson, supra.; Tropar Mfg. Co., Inc. v. TSB, FA 127701 (Nat. Arb. Forum Dec. 4, 2002 (“The addition of a generic top-level domain does not add any distinguishing characteristics to a domain name because it is a required feature in every domain name.”)

Respondent further increases the likelihood of confusion between his domains and Complainants’ by advertising his websites in a deceptive manner that suggests they are affiliated with Complainants and Nevyas Eye Associates. A Google search for “Nevyas Lasik” or a similar term displays the following Google headlines for Respondent’s websites:

Welcome to HerbertNevyasLasik.com!

herbertnevyaslasik.com/

Drs. Herbert Nevyas & Anita Nevyas-Wallace

herbertnevyaslasik.com/index.php?…

Nevyas Eye Associates

www.anitanevyaslasik.com/index.php?…

See

Google search results, attached as Ex. E (Respondent’s websites are highlighted so that they can be distinguished from Complainants’ website).

Once a patient or potential patient visits Respondent’s websites, the patient views disparaging and false remarks about Complainants. See Printouts from Respondent’s websites, attached as Exhibit F. Respondent’s websites also contain links to other websites featuring the services of other lasik surgeons and doctors with similar ophthalmology practices. Id.

Respondent’s websites track the number of clicks to each competitive website, suggesting that Respondent may be profiting from this confusion and traffic to his website by obtaining clickthrough fees. Id.

[b.] Respondent has no rights or legitimate interests in the domain names, pursuant to ICANN Policy ¶ 4(a)(ii).

Respondent is apparently an individual by the name of Dom Morgan, who was previously involved in state and federal litigation with Complainants. See Ex. F (Printout from Respondent’s websites stating websites are owned by Dom Morgan). Dom Morgan was a patient of Complainants in 1998 who was unhappy with the results of his treatment and subsequently posted numerous false, disparaging and defamatory statements regarding Complainants and their practice on multiple websites. Ex. B. Complainants sued him and subsequent to these lawsuits, statements were removed from his websites. Unfortunately, the parties’ legal battle continues. Ex. B.

Currently, Respondent owns and operates a number of websites where he criticizes the practice of lasik surgery and various lasik surgeons, including Complainants. Respondent is the owner of websites such as

www.nevyasvmorgan.com, www.lasikdecision.com, www.lasikliberty.com, www.lasikfda.com, and www.flawedlasik.com. See Exhibit G (Whois Information for Respondent’s Other Websites). Respondent also operated the website www.lasiksucks4you.com. This action does not implicate Respondent’s ability to post critical statements regarding Complainants on those domains, or any domains that do not contain Complainants’ trademarks. The domain names at issue in this action indicate that they are owned by Complainants, not that they are owned by an individual criticizing Complainants.

Prior panel decisions have held that this type of initial interest confusion, caused by the domain name itself, is impermissible. See The Paxton Herald v. Millard, FA0207000114770 (Nat. Arb. Forum Aug. 21, 2002) (“While the content of Respondent’s website may enjoy First Amendment and fair use protection, those protections do not equate to rights or a legitimate interest with respect to a domain name which is confusingly similar to another’s trademark.”); Council of American Survey v. Pinelands Web Services, D2002-0377 (WIPO July 19, 2002) (“Respondent may have a right to refer to the mark in critical content, the wholesale appropriation of Complainant’s mark in a domain name, without any distinguishing material, creates confusion with Complainant’s business and is not fair use merely for the purpose of criticism…No criticism is apparent from the domain name itself; it is not sufficient that the criticism may be apparent from the content of the site.”)

1. Respondent has no rights or legitimate interests in the domains because he is not commonly known by Complainants’ trademarks and does not use the marks in connection with a legitimate offering of goods and services.

Respondent has no rights or legitimate interests in NevyasLasik.com domains because he sells no goods or services on his websites and seeks only to capitalize on Complainants’ trademarks by luring consumer traffic to his website, disparaging Complainants, and advertising similar lasik services offered by other practitioners. For example, when one of the links on Respondent’s website is clicked, the customer visits

 

www.lasikinfocenter.com, where the customer views the following advertisements:

Tri-County Eye Physicians

Cataract & Oculo-plastic Surgery Laser Vision Correction/LASIK

www.tricountyeye.com

Locate an Eye Doctor

Locate an Eye Doctor in your area and Learn more about your Eyes

www.ThinkAboutYourEyes.com

Other links on Respondent’s website also advertise competitive products and services.

See Printouts from Respondent’s websites, attached as Exhibit F. Respondent’s websites display the number of hits on each link, indicating that Respondent’s websites have redirected thousands of consumers to other websites advertising competitive products and services. Respondent also has a history of using websites to solicit donations to pay his legal fees in litigation against Complainants. See, e.g., http://www.lasik-flap.com/forum/viewtopic.php?f=6&t=373.

Respondent’s NevyasLasik.com domains invite visitors to contact him and support him in his litigation with Complainants.

Respondent has no trademark or service mark rights in the “Nevyas Lasik,” “Anita Nevyas Lasik” or “Herbert Nevyas Lasik” trademarks and is not commonly known by these marks. Having no rights in the marks at issue, and offering no goods or services, Respondent simply attempts to profit and damage Complainants by misleadingly diverting customer traffic away from Nevyas.com and to his websites and the links on his websites.

Respondent’s use of domain names that are nearly identical to Complainants’ marks to divert Internet users to websites that offer competitive products and services, and for which Respondent presumably receives a commission or click-through fees, is not a bona fide offering of goods or services, nor is it a legitimate noncommercial or fair use of the domains under the ICANN Policy. See Emmit Smith, III v. EmmitSmith.com, FA 555486 (Nat. Arb. Forum Oct. 26, 2005) (citing Disney Enters., Inc. v. Dot Stop, FA 145227 (Nat. Arb. Forum Mar. 17, 2003) (finding that the respondent’s diversionary use of the complainant’s mark to attract Internet users to its own website, which contained a series of hyperlinks to unrelated websites, was neither a bona fide offering of goods or services nor a legitimate noncommercial or fair use of the disputed domain names); Black & Decker Corp. v. Clinical Evaluations, FA 112629 (Nat. Arb. Forum June 24, 2002) (holding that the respondent’s use of the disputed domain name to redirect Internet users to commercial websites, unrelated to the complainant and presumably with the purpose of earning a commission or pay-per-click referral fee did not evidence rights or legitimate interests in the domain name)).

2. Respondent has no rights or legitimate interests in the domains because he is not making a legitimate, non-commercial fair use of the domains pursuant to Paragraph 4c(iii), but is using the domains with an intent to tarnish Complainants’ trademarks and profit from misleadingly diverting customers.

Respondent registered the NevyasLasik.com domains in February, 2009. See Ex. A. Respondent’s legal battles with Complainants began in 2000 and have continued into the present.

Ex. B. Respondent’s websites make clear that Respondent’s goal is to tarnish Complainants’ trademarks, damage Complainants’ business, and profit from the use of Complainants’ marks.

Ex. F.

Complainants assert this complaint not to impair Respondent’s First Amendment rights but because Respondent is using Complainants’ trademarks in the NevyasLasik.com domains to suggest that the domains are sponsored by or affiliated with Complainants, to confuse Complainants’ patients and potential patients, and to lure traffic to Respondent’s websites.

Respondent’s website headlines – “Nevyas Eye Associates” and “Welcome to NevyasLasik.com!” – misleadingly suggest that patients will be visiting Nevyas Eye Associates or Complainants’ “Nevyas Lasik” practice if they select those links. Once the patient arrives at Respondent’s websites, Respondent’s has already profited from this initial interest confusion and has succeeded in tarnishing Complainants’ trademarks.

[c.] Respondent registered and uses the domains in bad faith, pursuant to ICANN Policy ¶ 4(a)(iii).

1. Respondent’s Registration of Multiple Domain Names Containing Complainants’ Marks and His Advertisement and Use of Those Domain Names Causes a Likelihood of Confusion, Particularly Initial Interest Confusion, to Attract Individuals Seeking Complainants’ Website to Respondent’s Websites.

Paragraph 4(a)(iii) of the ICANN Policy lists a non-exhaustive list of circumstances that indicate bad faith registration and use of domains, which includes evidence that the respondent “intentionally attempted to attract, for commercial gain, Internet users to [his or her] web site or other on-line location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of [his or her] web site or location or of a product or service on your web site or location.”

Respondent’s use of Complainants’ marks in his domain names creates a likelihood of confusion and suggests an attempt to attract Internet users to Respondent’s websites for commercial gain. See Am. Univ. v. Cook, FA 208629 (Nat. Arb. Forum Dec. 22, 2003) (“Registration and use of a domain name that incorporates another’s mark with the intent to deceive Internet users in regard to the source or affiliation of the domain name is evidence of bad faith.”); see also G.D. Searle & Co. v. Celebrex Drugstore, FA 123933 (Nat. Arb. Forum Nov. 21, 2002); Kmart v. Khan, FA 127708 (Nat. Arb. Forum Nov. 22, 2002).

Furthermore, where a disputed domain name containing the complainant’s trademark is being used to feature links to websites that compete with the complainant, presumably for referral fees, that use alone constitutes bad faith under the Policy. See Univ. of Houston Sys. v. Salvia Corp., FA 637920 (Nat. Arb. Forum Mar. 21, 2006); Asbury Auto. Group, Inc., v. Tex. Int’l Prop. Assoc., FA 958542 (Nat. Arb. Forum May 29, 2007); David Hall Rare Coins v. Tex. Int’l Prop. Assoc., FA 915206 (Nat. Arb. Forum Apr. 9, 2007); Am. Airlines, Inc., v. Tex. Int’l Prop. Assoc., FA 914854 (Nat. Arb. Forum Apr. 10, 2007).

2. Respondent Engaged in a Pattern of Registering Domains Reflecting Complainants’ Trademarks, Which Prevents Complainants from Registering Corresponding Domain Names Reflecting Their Marks.

Pursuant to Paragraph 4(a)(iii), evidence of bad faith also includes evidence that the Respondent “registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that [Respondent] engaged in a pattern of such conduct.” Respondent’s registration of a series of domains that all contain essentially the same website content suggests a pattern of registering domains so that Complainants cannot register them. There is no other justification for Respondent’s ownership of a series of domain names featuring the same website content.

3. Respondent Registered the Domain Names Primarily for the Purpose of Disrupting Complainants’ Business.

Evidence of bad faith can also include facts indicating that the domain was registered primarily for the purpose of disrupting the business of the trademark owner. Respondent states that his websites were created for the following purpose: “to update and further prove all allegations I brought against the Nevyases as documented on my previously owned website LasikSucks4u.com and now

LasikDecision.com. I would also like to show how I believe the courts were wrong in many of their decisions and/or opinions regarding my med mal lawsuit Morgan v. Nevyas and the current Nevyas v. Morgan lawsuit.” Ex. F.

Thus, Respondent admits that his websites were registered and are being used for to disrupt Complainants’ businesses. Respondent falsely alleged that Complainants committed medical malpractice, and if his stated intention is to attempt to publicly prove those allegations, his conduct necessarily involves disrupting Complainants’ businesses. See also Dr. Karl Albrecht v. Eric Natale, FA 95465 (Nat. Arb. Forum Sept. 16, 2000) (“The Respondent intentionally registered a domain name which uses the Complainant’s name. There is no reasonable possibility that the name <karlalbrecht.com> was selected at random. There may be circumstances where such a registration could be done in good faith, but absent such evidence, the Panel can only conclude that the registration was done in bad faith.”)

[6.] REMEDY SOUGHT

Complainants request that the panel issue a decision that Respondent’s domain-name registrations be transferred to Complainants.

[7.] OTHER LEGAL PROCEEDINGS

None.

[8.] COMPLAINT TRANSMISSION

Complainants assert that a copy of this Complaint, together with the cover sheet as prescribed by NAF’s Supplemental Rules, has been sent or transmitted to Respondent at the contact information provided, in accordance with ICANN Rule 2(b), and to the domain name Registrar at the contact information provided, in accordance with NAF Supp. Rule 4(e).

[9.] MUTUAL JURISDICTION

Complainants will submit, with respect to any challenges to a decision in the administrative proceeding canceling or transferring the domain name, to the location where the Respondent is located, in accordance with ICANN Rule 3(b)(xiii).

[10.] CERTIFICATION

Complainants agree that their claims and remedies concerning the registration of the domain name, the dispute, or the dispute’s resolution shall be solely against the domain-name holder and waive all such claims and remedies against (a) the National Arbitration Forum and panelists, except in the case of deliberate wrongdoing, (b) the Registrar, (c) the registry administrator, and (d) the Internet Corporation for Assigned Names and Numbers, as well as their directors, officers, employees, and agents.

Complainants certify that the information contained in this Complaint is to the best of their knowledge complete and accurate, that this Complaint is not being presented for any improper purpose, such as to harass, and that the assertions in this Complaint are warranted under these Rules and under applicable law, as it now exists or as it may be extended by a goodfaith and reasonable argument.

Respectfully Submitted,

Bryna S. Scott, Esq.

Alexis Arena, Esq.

FLASTER/GREENBERG, P.C.

1600 John F. Kennedy Blvd., Suite 200

Philadelphia, PA 19103

alexis.arena@flastergreenberg.com

Attorneys for Claimants

 

Dated: July 1, 2010

View the complete document HERE

MORGAN'S RESPONSE

THE COMPLAINANT(S) COMES BEFORE THE NATIONAL ARBITRATION FORUM WITH UNCLEAN HANDS

Complainant(s) have a history of misrepresenting facts to impede Respondent Morgan‟s First Amendment Rights. Complainant(s) through their counsel prior to the onset of litigation in the Nevyas v. Morgan lawsuit have stated “that this website should be removed in its entirety”1 and have repeatedly harassed Respondent Morgan‟s website hosting providers with threats of lawsuit. Complainant(s) twice attempted to obtain a restraining order against Respondent Morgan which was denied by the Philadelphia Court of Common Pleas. Complainant(s) then brought suit against Respondent Morgan in Federal Court. The federal district court dismissed the Lanham Act claim because the plaintiffs lacked standing to bring a false advertising claim and because Morgan’s statements did not qualify as “commercial advertising or promotion.” Unhappy with the Federal Court decision, Complainant(s) reinstated their claims in the state court for defamation, breach of contract and specific performance which proceeded to trial in July 2005. The trial court granted an injunction in favor of the plaintiffs (complainant(s)). On appeal, the Superior Court of Pennsylvania vacated the injunction in March 2007 and remanded the case to the trial court for further findings and proceedings.2 Claimant(s) allege that Respondent Morgan posted numerous false, disparaging and defamatory statements regarding Complainants are not true and have yet to be determined by the courts. In addition, facts Respondent Morgan and his co-defendant submitted during litigation resulted in the Judge ruling that Complainant(s) were public figures.3

1 Exhibit 1 – http://www.lasikdecision.com/media2/nocontract.pdf

2 Exhibit 2 – http://www.citizen.org/documents/nevyasmorganopinion.pdf

3 Exhibit 3 – https://fjdefile.phila.gov/dockets/zk_fjd_public_qry_03.zp_dktrpt_frames?case_id=031100946

THE COMPLAINANT(S) ARE A RISK TO PUBLIC SAFETY

Misrepresentations to Schullman Associates, Complainant(s) Institutional Review Board (IRB) and the U.S. Food and Drug Administration during their investigational study for LASIK have resulted in:

(a) Damages to over 30 people by claimant(s);

(b) Numerous letters from the FDA stating claimant(s) were in violations of their study;4

4 Exhibit 4 – http://www.lasikdecision.com/index.php?option=com_content&view=category&layout=blog&id=33&Itemid=114 – under section „Nevyases Investigational Study‟

(c) Discontinuance of their study by the FDA for safety reasons;

As such, the public has a right to know they are at risk when choosing services by claimant(s).

4) RESPONSE TO FACTUAL AND LEGAL ALLEGATIONS MADE IN COMPLAINT

a) This Response specifically responds to the statements and allegations contained in the Complaint and includes any and all bases for the Respondent to retain registration and use of the disputed domain name.

b) First and foremost, it is important to note at the outset that this is a case about Internet gripe sites in which the names of the Complainants – Herbert and Anita Nevyas — have been used in the domain names for sites that are devoted to describing Respondent‟s criticisms of those Complainants. Even assuming that their names can be the subject of a trademark-like UDRP complaint, this UDRP proceeding should take account of constitutional and trademark law in the United States, where the validity of any decision by the UDRP panel will be contested. And courts in the United States have consistently held that trademark claims over domain names in the form www.trademark.com cannot be brought when the domain name is used for a web site that is about the trademark holder, so long as the web site itself is not confusing about whether it is sponsored by the trademark holder.

Lighthouse Ministry v. Foundation for Apologetic Information and Research, 527 F.3d 1045 (10th Cir. 2008); Lamparello v. Falwell, 420 F.3d 309 (4th Cir. 2005), rev’g 360 F. Supp 2d 768 (E.D.Va. 2004); Lucas Nursery and Landscaping v. Grosse, 359 F.3d 806 (6th Cir. 2004); Taubman v. WebFeats, 319 F3d 770 (6th Cir. 2003). Indeed, the First Amendment limits trademark law to commercial uses. Id. Consequently, it is an independent ground for objecting to the application of trademark law to the use of domain names like those at issue here that the use is for the non-commercial purpose of expressing opinions about the trademark holder. Lighthouse Ministry v. Foundation for Apologetic Information and Research, 527 F.3d 1045 (10th Cir. 2008); Bosley Medical v. Kremer, 403 F.3d 672 (9th Cir. 2005); TMI v. Maxwell, 368 F.3d 433 (5th Cir. 2004); Taubman v. WebFeats, 319 F3d 770 (6th Cir. 2003).

c) The domain names < nevyaslasik.com>, <anitanevyaslasik.com>, and <herbertnevyaslasik.com> (sites listed) are not identical or confusingly similar to a trademark or service mark in which the Complainant(s) claims to have rights.

i) It is impossible for visitors to (sites listed) to be confused into thinking that they are visiting complainant(s) web site. A simple perusal of the home pages of (sites listed) makes it immediately obvious that the sites are designed to openly show Respondent Morgan‟s experience with claimant(s) and what can happen if you are not a good candidate for LASIK. The first caption of each website states: “After damaging my eyes with Refractive Surgery, Drs. Herbert Nevyas and Anita Nevyas-Wallace of Nevyas Eye Associates sued to silence me.” No person of average intelligence could conclude that an organization would operate a web site to show they damaged people and impeded on a person‟s First Amendment Rights. Furthermore, there are many statements and links on the sites that encourages the visitor to verification of comments made on respondent Morgan‟s sites. In lieu of complainant(s) argument, as of July 29, 2010 the websites now reads:

<nevyaslasik.com> “Why I do not recommend Nevyas Eye Associates!”, <anitanevyaslasik.com> “Why I do not recommend Anita Nevyas!”, and <herbertnevyaslasik.com> “Why I do not recommend Herbert Nevyas!”. The title pages of each site have also been changed to further reflect these sites are not complainant(s).

d) Respondent owns < nevyaslasik.com>, < anitanevyaslasik.com>, and < herbertnevyaslasik.com> and has rights and legitimate interests in that is/are the subject of the complaint. ICANN Rule 3(b)(ix)(2); ICANN Policy ¶ 4(a)(ii).

i) The Respondent is making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue, establishes a legitimate interest in the domain name. UDRP panels have stated repeatedly that criticism of a trademark owner‟s activities is a fair use, even if the domain name incorporates the Complainant‟s trademark. See, e.g.,

Bridgestone Firestone, Inc. v. Myers, WIPO Case No. D2000-0190 (July 6, 2000); Bosley Med. Group v. Kremer, WIPO Case No. D2000-1647 (February 28, 2001); TMP Worldwide Inc. v. Potter, WIPO Case No. D2000-0536 (August 5, 2000); The Am. Nat’l Red Cross v. Mafiabusters.com LLC, NAF File No. FA0206000114589 (August 6, 2002); Pensacola Christian College Inc. v. Gage, NAF File No. FA0110000101314 (December 12, 2001); Compusa Mgmt. Co. v. Customized Computer Training, NAF File No. FA0006000095082 (August 17, 2000); Robo Enters., Inc. v. Daringer, NAF File No. FA0101000096375 (February 21, 2001); Savin Corp. v. savinsucks.com, NAF File No. FA0201000103982 (March 5, 2002); Bloomberg L.P. v. Secaucus Group, NAF File No. FA0104000097077 (June 7, 2001); Mayo Found. for Ed. and Research v. Briese, NAF File No. FA0102000096765 (May 4, 2001); Dorset Police v. Coulter, eRes Case No. AF-0942 (October 20, 2001); Carefree Toland Pools, Inc. v. Thomson, eRes Case No. AF-1012 (October 30, 2001); cf. Wal-Mart Stores, Inc. v. MacLeod, WIPO Case No. D2000-0662 (September 19, 2000) (stating that criticism can be a legitimate interest, but finding no legitimate interest because the protest site was created only as a pretext for selling the site back to the trademark owner); Becker & Poliakoff, P.A. v. Isabell, eRes Case No. AF-0847 (August 9, 2000) (stating the panel would find criticism to be a legitimate fair use if it had not decided the dispute on other grounds). Respondent Morgan also is not a commercial enterprise and the sole purpose of his websites are to provide verifiable, factual information about respondent Morgan‟s experiences with complainant(s). Although the information provided on Respondent’s web site admittedly is, and should be, embarrassing to complainant and its LASIK surgeons, complainant has not provided any evidence to support his allegation that it is defamatory. There is significant social value in permitting people to express their opinions as part of their First Amendment rights, just as there is a right to criticize public figures and organizations under the freedom of speech principles of the U.S. Constitution. These rights clearly override the minimal commercial value of a domain name in a case like this.

ii) The accuracy and legitimacy of respondent Morgan‟s claims about complainant(s) on <nevyaslasik.com>, < herbertnevyaslasik.com>, and < anitanevyaslasik.com> are confirmed by the public documents throughout Respondent Morgan‟s websites.

c) Respondent has not registered <nevyaslasik.com>, < anitanevyaslasik.com>, and < herbertnevyaslasik.com> in bad faith ICANN Rule 3(b)(ix)(3); ICANN Policy ¶ 4(a)(iii).

i) Respondent Morgan has not offered to sell the domain names to any entity. Respondent Morgan has simply acquired the domain names for the purpose of educating the public due to claimant(s) risk to public safety and past improprieties which the complainant(s) engages.

ii) Complainant(s) allege Respondent Morgan profits from the domains. This is simply not true. Most Lasik websites are advertisements for having Lasik eye surgery. These sites will list complications but severely downplay the risks associated with LASIK just to sell you the procedure. The same can be said of MANY doctors who perform this procedure when you go in for consultation. Most domains listed are third party sites by others damaged by Refractive Surgery, sites useful for those seeking information regarding LASIK that doctors just do not emphasize. The website <lasikinfocenter.com> claimant(s) emphasized was previously owned by Ariel Berchadsky, a New York lawyer who was damaged by refractive surgery.5 Respondent Morgan does not earn any click-through fees or commissions from the web sites posted at the contested domain names. He does not profit from them in any way. All of the links in the „Links‟ section of Respondent Morgan‟s websites have been chosen because, in the opinion of Respondent Morgan, they offer useful information to prospective patients who are considering surgery on their eyes, or to other lasik victims like Respondent Morgan who are trying to learn what they can do about what has been done to them. If some of those sites are mounted by professionals in the field, who hope that viewers will be choose their services, that is not why Respondent Morgan has linked to them and in particular the link goes to the informational pages on such web sites, not to pages that advertise the services of their creators. Respondent Morgan acknowledges changes are required to update sites and will do so accordingly (already started). Complainant also makes an issue of the fact

5 Exhibit 5 – The link for lasikinfocenter.com has since been removed from the sites listed.

that, on a different web site that does not contain any of Complainants‟ names in the URL, Respondent Morgan urged public support for Public Citizen,6 a not for profit organization and accepts no government or corporate money – they rely solely on foundation grants, publication sales and support from their members. As previously noted, Public Citizen‟s litigation group represented Respondent Morgan in a successful appeal from an injunction against the maintenance of that web site. But there is no appeal for support for Public Citizen on any of the web sites at issue in this case and, in any event, the United States Court of Appeals has specifically held than an expression of support for Public Citizen, along with a link to its web site, by one of its clients in a domain name case did not make that web site “commercial” and hence amenable to suit under the trademark laws.

Bosley Medical Institute v. Kremer, 403 F.3d 672, 678 (9th Cir. 2005)

6 Exhibit 6 – http://www.citizen.org/Page.aspx?pid=2306

iii) A consensus has not yet developed among panels regarding whether an individual can have a legitimate interest in using a domain name in the form <trademark.com> for the purpose of criticizing or commenting on the trademark owner. Compare

Bosley Med. Group, WIPO Case No. D2000-1647 (using <trademark.com> to comment on trademark owner is fair use), with Nintendo of Am. v. Jones, WIPO Case No. D2000-0998 (November 17, 2000) (“Insofar as a domain name which is identical to a name or mark is used solely in the context of the product of the owner of the name or mark and the owner objects to the use, it is not legitimate.”). In the absence of a consensus, a panel must consider the parties‟ arguments and relevant legal authorities and then make a decision consistent with the goals of the Policy and the Rules, as well as general legal principles. See Rules Paragraph 15(a) (“A Panel shall decide a complaint on the basis of the statements and documents submitted and in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable.”). Moreover, as discussed above, because Complainant has accepted jurisdiction for judicial review in the United States, the panel should apply United States law, including both the First Amendment and the many court decisions limiting the use of trademark law to domain names for non-commercial web sites about the trademark holder. Prior panel decisions finding no legitimate interest in using a domain name in the form of <trademark.com> for the purpose of criticizing or commenting on the trademark owner all relate to a trademark owner that is a commercial enterprise. Complainant claims to offer a “non-profit” service. Respondent also does not offer or provide any goods or services through its web site, nor does it solicit or accept donations. Accordingly, there is no intent to divert nor effective diversion of any commerce, nor any risk of misdirected donations. Respondent has neither sought nor received any commercial gain from the registration and use of the domain name.

iv) The panel in

Legal & Gen. Group Plc v. Image Plus, D2002-1019 (WIPO Dec. 30, 2002), found that initial interest confusion was displaced by the criticism content at the respondent’s web site and that such a “low level of confusion is . . . a price worth paying to preserve the free exchange of ideas via the Internet.” In Elm Grove Dodge

Chrysler Jeep, Inc. v. Schedule Star

, FA 352423 (Nat. Arb. Forum Dec. 27, 2004), the panel came to a similar conclusion, finding no bad faith registration or use where the respondent “only registered the disputed domain names to voice concerns and complaints about Complainant” and “[n]o one reading the web site would be confused as to sponsorship.”

v) Complainants also protest at length about the way Respondent Morgan “advertises” his web site in Google. Respondent does not “advertise” on Google – Google crawls web sites, identifies sites that are believed to be relevant to search queries using its sophisticated algorithm, and then returns search results accordingly. And it is Google, not Respondent, that decides how to describe the sites being returned, drawing text from the sites themselves. Each of the items about which the Nevyases complain are “organic” search results whose placement and content are determined solely by Google in its own discretion. Moreover, the courts do not agree with the implicit argument by complainants that the content of search listings makes out a basis for trademark litigation. No case based on the theory of “initial interest confusion” can be made out when a user of a search engine clicks on a search result and comes to a landing page that so clearly dispels any possible confusion as Respondent‟s pages do, by expressly criticizing the trademark holder. And, even if there were a possible trademark claim, it would not be a UDRP claim which is based only on the content of the domain name.

vi) Complainant(s) have presented a bizarre and baseless claim to the National Arbitration Forum that clearly emphasizes Respondent Morgan‟s claims that claimant(s) continuously impede on Respondent Morgan‟s First Amendment Rights and the harassment to silence him.7

7 Exhibit 7 – Claimant(s) wrote this letter over 7 years after Respondent Morgan last saw them as a patient. Respondent Morgan believes the actions of claimant(s) was of vindictive nature and to further harass Morgan.

5) RESPONSE TRANSMISSION

Respondent Morgan asserts that a copy of the Response, as prescribed by NAF‟s Supplemental Rules, has been sent or transmitted to the Complainant(s), in accordance with ICANN Rule 2(b). ICANN Rule 5(b)(vii); NAF Supp. Rule 5.

6) Respondent Morgan respectfully requests that the Administrative Panel denies the remedy requested by the Complainant(s).

7) CERTIFICATION

Respondent Morgan certifies that the information contained in this Response is to the best of Respondent‟s knowledge complete and accurate, that this Response is not being presented for any improper purpose, such as to harass, and that the assertions in this Response are warranted under these Rules and under applicable law, as it now exists or as it may be extended by a good-faith and reasonable argument.

Respectfully Submitted,

Dominic J. Morgan, Respondent

View the complete document HERE and HERE (exhibits)

COMPLAINANTS’ ADDITIONAL SUBMISSION IN REPLY TO RESPONDENT

Complainants Dr. Herbert Nevyas and Dr. Anita Nevyas-Wallace (“Complainants”) submit this additional submission in reply to the Response filed by Respondent Dom Morgan / n/a (“Respondent”).

[a.] Respondent’s Belated Revisions to His Websites Are Not Evidence of His Rights to the Domains; To the Contrary, They Evidence Respondent’s Bad Faith Prior to His Receipt of the Complaint.

Respondent states that since receiving the Complaint in this matter, he: (1) removed the link on his website to www.lasikinfocenter.com, which contained advertisements for Complainants’ competitors; and (2) revised the title pages of his websites so as to not misleadingly refer to Complainants. Response, at 3, 5, Ex. 5.

Respondent’s removal of commercial links on his website and the edits to his website text do not absolve him from liability in this proceeding, because the Policy focuses on the content of Respondent’s websites before the date the Complaint was filed. Paragraph 4(c)(i) of the Policy states that a respondent may demonstrate “rights to and legitimate interests in the domain name” by showing “before any notice to you of the dispute, your use of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services…” Policy, 4(c)(i).

Moreover, Respondent’s belated revisions are evidence that he used the domains in bad faith before he received the Complaint. See Comweld Group Pty. Limited v. Comco Industries Co. Ltd., Case No. D2001-0290 (WIPO August 31, 2001) (“Respondent’s attempts to change the content of the website are evidence that the registration was not in good faith.”); St. Lawrence University v. Nextnet Tech c/o Domain Dept, FA0701000881234 (Nat. Arb. Forum Feb. 21, 2007) (“Respondent has authority to change the website content, and Respondent directed that changes be made to the website’s content and keywords after receiving the Complaint in this proceeding.”); Granarolo S.p.A. v. Michele Dinoia a/k/a SZK.com, FA0602000649854 (Nat. Arb. Forum April 17, 2006) (“Respondent’s attempts to change his website provide clear evidence of endeavours to get around the consequences of the bad faith registration of a famous mark.”)

Indeed, if respondents in UDRP proceedings could always avoid liability by making changes after receipt of a UDRP complaint, the UDRP process would be ineffective. There is nothing to prevent Respondent from changing his websites back to the way they were previously once this action is concluded, or making his websites more deceptive, if Respondent is permitted to maintain control of the domains.

For that reason, UDRP proceedings properly focus on the content of the domain names themselves. Here the domain names at issue indicate that they are owned by Complainants, not that they are owned by an individual criticizing Complainants.

1 Compare The Paxton Herald v. Millard, FA0207000114770 (Nat. Arb. Forum Aug. 21, 2002).

[b.] Respondent’s Statement That Google – and Not Respondent – Is Responsible For the Way His Websites Appear to Consumers in Search Results is False.

One change Respondent has not made since receiving the Complaint is to revise the headlines or “title tags” of his websites, which are displayed to internet users viewing Google search results. The title tags for Respondent’s websites still include phrases such as:

Welcome to HerbertNevyasLasik.com!

herbertnevyaslasik.com/

Drs. Herbert Nevyas & Anita Nevyas-Wallace

herbertnevyaslasik.com/index.php?…

Nevyas Eye Associates

www.anitanevyaslasik.com/index.php?…

See

Exhibits E and F to Complaint and attached Exhibit 1.

Respondent argues that the way his websites are listed has nothing to do with Respondent’s actions and is a result of Google’s actions. However, Google explains that “title tags” like Respondent’s are authored by website owners themselves. See, e.g.,

http://www.google.com/support/webmasters/bin/answer.py?hl=en&answer=35264#3

When Respondent created his website content, he alone selected the underlined phrases displayed above and in Google search results. These phrases authored by Respondent are part of his websites’ content and are one of the reasons his website content is misleading to consumers.

1

Respondent argues that “this is a case about Internet gripe sites” but unlike gripe sites, such as ThisNissanSucks.com, the domain names here give no indication that their purpose is criticism.

Respondent is also incorrect that no case can be made in this proceeding based on “initial interest confusion.” Respondent’s domain names themselves, coupled with misleading website content such as his “title tags” create initial interest confusion that causes prospective patients to unwittingly visit Respondent’s websites, even if they later realize their mistake. See Council of American Survey v. Pinelands Web Services, D2002-0377 (WIPO July 19, 2002) (“Respondent may have a right to refer to the mark in critical content, the wholesale appropriation of Complainant’s mark in a domain name, without any distinguishing material, creates confusion with Complainant’s business and is not fair use merely for the purpose of criticism…No criticism is apparent from the domain name itself; it is not sufficient that the criticism may be apparent from the content of the site.”)

Respondent essentially admits that his intention is to drive prospective patients of Complainants to his website and to cause harm to Complainants’ reputation and business, stating that “the public has a right to know they are at risk when choosing services by claimant(s).”

Response, at 3. Respondent also previously contacted Dr. Stephen Barrett, the Board Chairman of Quackwatch, Inc. (an organization dedicated to consumer protection and health fraud prevention), with his allegations regarding Complainants. See Exhibit 2 (Emails from Dr. Barrett). Dr. Barrett remarked that he felt Complainants were reputable and that Respondent’s current website may expose him to a libel suit and Respondent replied that his intention with the website was to put Complainants out of business. Id. Respondent’s bad faith intent to disrupt Complainants’ business by causing consumer confusion could not be clearer.

[c.] The Litigation Respondent Describes Does Not Concern the Websites At Issue Here and His Statements Regarding Those Disputes Are Inaccurate and Irrelevant in This Proceeding.

It is unnecessary to detail the inaccurate statements made by Respondent regarding underlying disputes with Complainants here, because those statements have no relevance in this proceeding. To summarize, Respondent was unhappy with the results of his medical malpractice lawsuit against Complainants, because Complainants did not commit medical malpractice, and thereafter Respondent began carrying out his stated intention of putting Complainants out of business through internet gripe sites. However, Respondent crossed the line and violated the Policy when he began registering domains comprised of Complainants’ trademarks and including links to Complainants’ competitors on those websites.

Although the parties’ previous litigation also involves Respondent’s websites, the litigation does not concern the domains at issue here. Complainants’ defamation claims against Respondent focused on Respondent’s statements on the website.

www.lasiksucks4you.com, which is no longer owned by Respondent.

[d.] Respondent Has Not Shown A Legitimate Non-Commercial Fair Use of These Domains and His First Amendment Rights Are Not Implicated.

Finally, although Respondent asserts that he did not obtain click-through fees or any other commercial profit by advertising the services of Complainants’ competitors, this assertion is unsubstantiated by any evidence. The evidence shows that Respondent’s websites link to Complainants’ competitors websites and those “hits” are tracked on Respondent’s websites. See Complaint attached Exhibits. He admits that he links to professionals in the field who may hope that viewers will choose their services and “[m]ost Lasik websites are advertisements for having Lasik eye surgery.” Response, at 3. However, he argues “that is not why Respondent Morgan has linked to them.” Id.

Respondent’s internal motivation in linking to these websites is irrelevant; it is sufficient that the disputed domains link to Complainants’ competitors. Furthermore, Respondent himself does not have to be a direct competitor of Complainants to have acted in bad faith. See St. Lawrence University v. Nextnet Tech c/o Domain Dept, FA0701000881234 (Nat. Arb. Forum Feb. 21, 2007) (“By redirecting Internet users seeking information on Complainant’s educational institution to competing websites, Respondent has engaged in bad faith registration and use pursuant to Policy ¶ 4(b)(iii)); Mission KwaSizabantu v. Rost, D2000-0279 (WIPO June 7, 2000) (defining “competitor” as “one who acts in opposition to another and the context does not imply or demand any restricted meaning such as commercial or business competitor”); S. Exposure v. S. Exposure, Inc., FA 94864 (Nat. Arb. Forum July 18, 2000) (finding that the respondent registered the domain name in question to disrupt the business of the complainant, a competitor of the respondent); EBAY, Inc. v. MEOdesigns, D2000-1368 (WIPO Dec. 15, 2000) (finding that the respondent registered and used the domain name <eebay.com> in bad faith where the respondent has used the domain name to promote competing auction sites).

This action does not implicate Respondent’s First Amendment rights or his ability to post critical statements regarding Complainants on any of the other domains he owns that do not contain Complainants’ trademarks, such as LasikDecision.com, FlawedLasik.com, etc. This action concerns only Respondent’s ownership of the domain names NevyasLasik.com, AnitaNevyasLasik.com and HerbertNevyasLasik.com and his registration and use of those domains in violation of the Policy.

For the foregoing reasons, and the reasons described in Complainants’ Complaint, the NevyasLasik.com, HerbertNevyasLasik.com, and AnitaNevyasLasik.com domains should be transferred to Complainants.

Respectfully Submitted,

Bryna S. Scott, Esq.

Alexis Arena, Esq.

FLASTER/GREENBERG, P.C.

1600 John F. Kennedy Blvd., Suite 200

Philadelphia, PA 19103

Alexis.arena@flastergreenberg.com

Attorneys for Claimants

Dated: August 4, 2010

 

View the complete document HERE, HERE (exhibits), and HERE (exhibits)

RESPONDENT MORGAN’S REPLY TO COMPLAINANTS’ ADDITIONAL SUBMISSION

Complainants’ Additional Submission, as their Complaint, consists of half-truths and worse. As but one example, consider complainants’ exhibit B, a July 16, 2010 letter to Alexis Arena from Stephen Barrett, MD, explained below:

In 2003 University of Cincinatti Law Professor James O’Reilly contacted me and asked me to post, on my website, his article on legal and regulatory problems involving LASIK eye surgery, and I agreed. After the Nevyases sued me, I asked professor O’Reilly to re-evaluate my website. He did, and prepared a declaration, which I posted online.

1

1 I, James T. O’Reilly, make this declaration to place this matter of record, subject to the penalties of 18 Pa.C.S.A. §4904 relating to unsworn falsification to public authorities. I declare that:

1. My professional address is at the College of Law, University of Cincinnati, P.0 210040, Cincinnati, Ohio 45221-0040. 1 am a member of the Bar of Ohio and Virginia, the Sixth and Federal Circuits and the U.S. Supreme Court. I have taught law students regarding the law of medical devices, products liability and administrative law since 1980, and am the author of more than twenty textbooks and one hundred articles, and have appeared as an FDA law expert in federal and state courts, and have been quoted by the U.S. Supreme Court as an expert on medical device regulation. I understand that the federal regulation of the risks and benefits of medical devices such as LASIK equipment is a matter of substantial public concern and controversy.

2.

I published my law review essay, AN EYE FOR AN EYE: FORESIGHT ON REMEDIES FOR LASIK SURGERY’S PROBLEMS, at 71 U. Cin. L. Rev. 541 (2002), as part of our Faculty Scholarship symposium issue.

3. I became aware of Mr. Morgan’s website, Lasiksucks4u.com, upon the unsolicited recommendation of a person in California who had read my law review article and encouraged me to read Mr. Morgan’s website comments. I found the material posted on Lasiksucks4u.com to be educational and useful, particularly for anyone considering having LASIK surgical procedures performed on themselves. I did an internet search using the google.com search engine and believe that the numerical majority of the dozens of sites listed there are commercial vendors of LASIK products or surgeons providing LASIK.

4. After reviewing his site, I corresponded with Mr. Morgan and have encouraged Mr. Morgan to include my essay on his website, in order that persons considering Lasik may become aware of my perspective regarding various legal and regulatory problems involving LASIK surgery. I have provided Mr. Morgan with the electronic version of my essay for posting at his discretion. I have no financial interest in LASIK, have not been paid by Mr. Morgan or others related to LASIK, and had no prior knowledge of Mr. Morgan or of those to whom he makes reference in his website.

5. Although my law review article is legal scholarship directed particularly toward lawyers, I hope its opinions can also be part of the wider education of the public, since I consider public education to be a major responsibility of the legal profession, particularly for legal academics. As a scholar recognized in the field of medical device and products liability law, the general public’s awareness of product risks is an extremely important aspect of our protections as members of American society.

6. I believe that Mr. Morgan has an ample First Amendment right to exercise his freedom of speech on matters of public controversy, and to provide the public with information about LASIK, from his personally unique perspective as a victim.

Dated this 8th day of December, 2003 at Cincinnati, Hamilton County, Ohio.

[signed]

Professor James O’Reilly

Stephen Barrett, MD then contacted professor O’Reilly, touted “Quackwatch” and, without revealing his marriage to Herbert Nevyas’ sister, castigated me, praised Herbert Nevyas, and asked professor O’Reilly to withdraw his declaration (emphasis added):

From: Stephen Barrett, M.D.

To: james.oreilly@uc.edu

Sent: 12/31/2003 10:12 AM…

Dear Professor O’Reilly

I am writing in response to your declaration at http://www.lasiksucks4u.com/OReillydecl.htm.

I have followed the LASIK situation very carefully because I write a college textbook that helps people learn how to make intelligent decisions about health matters…. About two months ago, Mr. Morgan notified me that he had created his site and expressed concern that I had an article by Dr. Nevyas on Quackwatch. (The article was prepared for my textbook.)…. You seem to be under the impression that the purpose of the site is to warn people about the potential dangers of LASIK surgery and that it provides an appropriate warning.

However, it seems to me that the primary purpose of the site is to put Dr. Herbert Nevyas and his daughter Anita Nevyas-Wallace, MD (who operated on Mr. Morgan) out of business.…. Dr. Herbert Nevyas is probably the most respected eye surgeon in Philadelphia. At the very least, you should withdraw your declaration….

Stephen Barrett, M.D.

Board Chairman, Quackwatch, Inc.

NCAHF Vice President and Director of Internet Operations

P.O. Box 1747,

Allentown, PA 18105

Telephone: (610) 437-1795

Professor O’Reilly investigated. He learned that Herbert Nevyas never did Lasik at any hospital, had ceased all hospital operations for over ten years, operated only in his own outpatient surgicenter, and advertised extensively. His operations were not subject to any peer review except by his wife (who never had an ophthalmology residency but was apprenticeship-trained by her husband). In turn, Herbert Nevyas did the “peer review” of his wife and daughter. This arrangement satisfied the law mandating peer review of outpatient surgicenters, but it also indicated that Dr. Barrett’s “college textbook that helps people learn how to make intelligent decisions about health matters” did not value peer review. In preaching the virtues of “probably the most respected eye surgeon in Philadelphia” to young college students in Allentown, a city merely 54 miles from Philadelphia (Rand-McNally), Dr. Barrett knowingly promoted a medical entrepreneur.

Professor O’Reilly decided that his declaration should not be withdrawn.. Dr. Barrett, after seven years and “further reflection,” and still without revealing that he is married to Herbert Nevyas’ sister, now writes Alexis Arena to purport, “I don’t recall the exact words, but he made it clear that his intention was to put the Nevyas’s out of business.”

Quackwatch, Quackwatch….

Conclusion – a question:

When a large law firm submits “earwitness” testimony to a trier of fact without revealing that the “earwitness” is brother-in-law and uncle to complainants (see p. 3 of Complainants’ Additional Submission), have those lawyers fulfilled their duty of candor?

Respectfully Submitted,

Dominic J. Morgan, Respondent

View the complete document HERE

On January 16, 2013, Morgan sent the following to Professor Wilson who opined his decision on behalf of the NAF, to which no response was received:

Dominic J. Morgan

Sent via email 01/16/2013

Professor Darryl C. Wilson Stetson University College of Law 1401 61st Street South, Suite 213 Gulfport, FL 33707 727 562 7882 wilson@law.stetson.edu

Re: http://domains.adrforum.com/domains/decisions/1333710.htm

Dear Professor Wilson,

Your decision as with all decisions the National Arbitration Forum has ruled upon hopefully in the future should not entail prejudice to those filing the complaint.

In my response, I stated that complainants came before the forum with unclean hands and stand by my assertion, especially in light of the information I came upon in 2011:

The initial complaint was filed July 6, 2010. Less than 2 weeks after, 87 domains were registered by complainant’s grandson/son Jonathan Wallace (please see attached) however none of this was ever presented to the NAF or the courts because I did not find out until after the complainants refused to litigate.

I believe the NAF’s decision should be retracted however, it is highly unlikely due to the timeframe of this response and the prejudice shown by the NAF. Simply put, you and the forum have been duped. I hope in the future you rely on facts.

Respectfully,

Dominic J. Morgan

 

In 2011, the Nevyas v. Morgan case finally went to trial in front of Judge Victor DiNubile. His final ruling gave the Nevyases the injunctive relief they’ve sought for numerous years even after hearing testimony from Dr. Morris Waxler, former FDA Director of Medical Devices (Superior Court Copy - PART1, PART2, PART3, PART4, PART5). Noted extensively were violations of the Nevyases and the illegalities of their investigational study and also of the FDA sending warning letters consistently about Nevyases’ violations, including one sent in 2012!

As soon as the underlying case was on appeal, the Nevyases filed a Petition for Contempt (Exhibits - 1, 2, 3, 4, 5, 6, 7, 8) against Morgan. This did not get to a hearing until April, 2012.

One of the first statements Judge DiNubile stated was that “he was not re-addressing the March 2011 trial”. According to Morgan:

"He did however allow the Nevyases over 2 hours to put themselves up on their perpetual pedestal and issued this order. I disagree with Judge DiNubile for several reasons:

Per DiNubile’s order: I had to remove the Nevyas laser was a “black box laser”.

Morris Waxler (who was head of the medical devices panel at the FDA during my LASIK) testified at trial that the Nevyas laser was indeed a “black box” laser. Both Nevyases perjured themselves at the contempt hearing stating it was not.

Per DiNubile’s specific instructions,The letter I wrote to the American Academy of Ophthalmology was never introduced as evidence at trial or appeal. They may have stated but never argued the letter as defamatory, nor did DiNubile allow the email from Matthew Tarosky to Jo Wills, whose husband was also damaged by the Nevyases to be presented at trial.

The March 2011 trial was never really about me. The only thing I believe the Nevyases were interested in was going after my ex attorney’s insurance company. They sued him for $1mil because I posted letters on my websites he wrote to the FDA on my behalf (They lost). The letters, all factual had been removed several years prior but I was still ordered by the courts to never repost them.

I was also ordered to remove (per DiNubile’s specific instructions) that “the Nevyases damaged my eyes”.

I testified at the contempt hearing that I have thousands of pages to back up every allegation made against the Nevyases and DiNubile ignored that as well.

The facts are in black and white and have been proven numerous times. The courts I believe only cared about getting rid of this case."

Perhaps this lawsuit could have been avoided altogether if the laws in Philadelphia were fair and just in 2003. In March, 2014 Senator Lawrence M Farnese, Jr. received support from the Public Participation Project for support of Anti-Slapp Legislation PA SB 95. reintroduced and passed in the Senate on April 24, 2017 (the House has yet to rule):

Section 1. The General Assembly finds and declares that there has been a disturbing increase in lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances. The General Assembly also finds and declares that it is in the public interest to encourage continued participation in matters of public significance and that this participation should not be chilled through abuse of the judicial process. This act is intended to grant immunity to those groups or parties exercising this right and shall be construed broadly.

Morgan believes the Philadelphia Court system was for the most part unfair, that the Federal Courts saw through what Philadelphia Courts could not or would not do:

"By time my med mal lawsuit went to trial, there was basically nothing left to sue for:

They continuously misrepresented facts to their Institutional Review Board (IRB), the FDA, and the Philadelphia and Federal Courts;

Were STILL protected by the FDA throughout and after their study even though there were numerous violations;

Withheld documents pertinent to this and the underlying med mal lawsuit;

Perjured themselves numerous times;

The Nevyases have a litigious history as noted in Superior Court Brief re Argus, most recently, a Qui Tam lawsuit (Nevyas v Allergan) as whistleblowers against Allergan. Allergan had to pay out $600mil in a prior lawsuit, so as whistleblowers, the Nevyases stand to gain 30% of THIS settlement... gold digging? They got away with damaging how many people violating federal rules, regulations, and protocols, how is anything they get away with fair?..."

 

 
The Wild, Wild West Of LASIK PDF Print E-mail
Thursday, 25 February 2010 22:20

SOURCE

The Wild, Wild West Of LASIK

According to the Chicago Tribune, the Illinois Department of Financial and Professional Regulation has finally shut down one of its most sued LASIK surgeons, after more than a decade of complaints.

Dr. Nicholas Caro was found guilty of unprofessional conduct and gross negligence earlier this month. However, he has been sued nearly 50 times for medical malpractice since the 1990’s.

While he has been banned from performing any more LASIK surgery, and fined $10,000, that is a small consolation for the dozens of patients who have suffered life altering visual disabilities as a result of his unprofessional conduct and gross negligence.

The fact that Dr. Caro’s colleagues and the Illinois licensing authorities tolerated his misconduct for more than a decade is inexplicable.

If you are a potential patient entering the Wild, Wild West of LASIK, the good surgeons vastly outnumber the bad. However, bad doctors like Nick Caro do not come with warning labels. Consequently, you are on your own.

Coincidentally, the Chicago Tribune story has two ads by Google linked to this story. One is to LASIKPlus, whom I sued in Virginia earlier this month. The second is for “Cornell-Columbia-Harvard trained” Dr. Kevin Niksarli, M.D., against whom I obtained a $5.6 million LASIK malpractice verdict in June 2009.

Sources: Chicago Tribune Article Regarding Dr. Nick Caro - http://www.chicagotribune.com/news/local/ct-met-bad-eye-doctor-20100219,0,2101781.story; Lawsuits Against Dr. Nick Caro - http://www.lifeafterlasik.com/nickcarolawsuits.htm; Niksarli Verdict Press Release - http://www.krounerlaw.com/press-release-061109.html; LASIKPlus Press Release - http://www.krounerlaw.com/press-release-021210.html

See more on Dr. Caro HERE

 
LASIK Malpractice Litigation PDF Print E-mail
Friday, 17 July 2009 20:48
SOURCE

Copyright 2009. Incisive Media US Properties, LLC. All rights reserved. New York Law Journal Online
Article printed from:
http://www.nylj.com

LASIK Eye Surgery: Litigation Challenges and Issues

Todd J. Krouner
07-15-2009

LASIK eye surgery is one of the most common forms of surgery in the United States. The overwhelming majority of patients are satisfied. However, for those who suffer complications, the resulting visual disability can be life altering. This article examines the common bases of liability in LASIK litigation.

Plaintiff verdicts from around the country confirm that the pain and suffering associated with poor quality vision, such as blurring, halos, double vision and impaired night vision have substantial seven-figure value. The hope among plaintiff lawyers is that such verdicts will influence high-volume LASIK surgeons to be less aggressive when dealing with borderline candidates for this elective surgery.

Complications

The surgical complication rate is disputed and underreported. The industry suggests this rate is below 1 percent. However, a recent article asserts that the rate of complications following LASIK surgery, such as halos, glares, dry eyes, and impaired night vision, is approximately 20 percent.1 The disparity occurs because LASIK surgeons do not count dry eyes and poor night vision, as well as other light phenomena, as "complications," but rather as known and accepted risks of LASIK surgery.

One of the most serious complications from LASIK surgery is post-LASIK ectasia. Ectasia is the bulging of the cornea, which can result in the excessive thinning of the cornea and compromise its structural integrity. It can occur naturally, and when it does, it is referred to as keratoconus.2 The term post-LASIK ectasia is used to refer to ectasia that was laser induced. Ectasia is progressive in nature, and usually will continue to worsen over time. In most cases, the ectasia will manifest within the first year following LASIK surgery. However, a leading article by J. Bradley Randleman, M.D., and others, from Emory University (the Randleman Study), teaches that post-LASIK ectasia may not develop until 45 months after the initial LASIK surgery.3 For claims arising in New Jersey, this is not a problem because the statute of limitations runs from discovery of the injury. By contrast, New York has no such discovery rule. Consequently, the delayed onset of symptoms can be fatal to a case, absent continuous treatment with the LASIK surgeon.

Keratoconus, and its early or sub-clinical predecessor, forme fruste keratoncus (FFK), are contraindications to LASIK surgery. The Randleman Study concluded that post-LASIK ectasia is most often caused by the clinician's failure in screening signs of keratoconus or FFK, or by surgical error in cutting the patients' cornea too thin, and breaching the structural integrity of the cornea. Recent studies suggest that 95 percent of the time ectasia occurs for known reasons, such as the surgeon missing pre-operative warning signs, or cutting the cornea too. Consequently, ectasia cases should be treated as evidence of presumptive malpractice.

In addition to cases involving contraindications and surgical negligence, some LASIK lawsuits arise with patients whose pupil size is larger than the optical zone of the surgery. In Post v. University Physicians, Inc., 2002 WL 32832041 (Ariz. Super. 2002), the plaintiff, who was a pilot, was awarded a $3.4 million verdict when the surgeon failed to recognize the plaintiff's large pupil size.

Other LASIK litigation involves lifting and creating the flap; maladministration of postoperative steroid drops giving rise to glaucoma; varying auto-immune disorders, thin corneas, corneal dystrophy, and central islands (discussed below) due to poor laser maintenance or product defect.

Product Defects

With today's laser technology, central islands are another injury, like ectasia, that rarely just happen for no known reason. The term is used to describe elevations in the central treatment zone of the cornea that can occur if the laser does not remove enough tissue in this area. The 'island' consists of a small mound of corneal tissue that can interfere with vision. Initially, central islands were an unfortunate complication of the early technology that resulted from the uneven application of the laser's energy. In recent years, this complication was thought to have been eradicated due to advances in laser technology. Today, if central islands occur, they can be assumed to be either a result of a product defect, or of the poor maintenance and cleaning of the laser itself. In September 2007, Alcon Laboratories recalled its LADAR 6000 surgical laser, because of reports that its laser created central islands.

Even though the Supreme Court has preempted product liability claims for medical devices in Riegel v. Medtronic, Inc., 128 S. Ct. 999 (2008), claims against product manufacturers can succeed under at least three theories. These include failure to manufacture the product in accordance with the specifications submitted to and approved by the Food and Drug Administration (FDA), failure to follow FDA protocols, and violations of parallel state law consumer fraud statutes. In March 2009, the Medical Device Safety Act was introduced to overturn Riegel, and reinstate injured patients' rights to recover for faulty medical devices.

In addition to Alcon's defective surgical laser, patients have developed central islands where a well-designed laser was not maintained properly. The laser needs to be tested and calibrated periodically. If this is not done, saline-like fluid has been known to splash on the laser optics and impair the even flow of the laser energy, and has also resulted in central islands. Central islands are one example of a corneal injury that, if severe enough, has no present cure or effective treatment.

Effects on Individuals

Vision has two components, acuity (quantity) and quality. Post-LASIK complications can distort the patient's vision, may impair visual acuity and will affect visual quality. Even if the patient can read the letters on the Snellen eye chart, often it is accompanied with double vision, blurring, ghosting, halos and various light phenomena including photosensitivity, difficulty with night vision, and starbursting.4

In addition, there are a small, but alarming, number of patients who have committed suicide allegedly due to LASIK complications. Although the industry asserts that suicide is a multi-factoral issue, and that no such association between LASIK and suicide can be demonstrated, there exists a clear correlation between visual impairment and depression.5 As other surgeons are required to assess a patient's mental health before surgery, at minimum, it would be prudent for LASIK surgeons to do the same.

Possible Treatments

Treatment is difficult for patients of LASIK malpractice. Glasses do not help. Contact lens therapy is thwarted by dry eyes. Intacs offer another hope in stabilizing vision. Intacs are artificial lenses implanted into the cornea in an attempt to reshape the cornea. In the worse case, a corneal transplant surgery is necessary. Recently, the FDA has approved an experimental protocol to arrest, but not cure, post-LASIK ectasia. It involves riboflavin drops and ultraviolet (UV) light. The hope is that the combination of riboflavin and UV light will, on a microscopic level, increase the levels of collagen in the cornea to strengthen the cornea and prevent further deterioration.

Jury Verdict Data

Juries in New York, and around the country, are recognizing the substantial value associated with loss or impairment of vision. At the same time, it is difficult to explain to a jury how problems with visual quality can ruin a patient's life, when the patient retains a reasonable visual acuity. Pictures of these qualitative complaints, from the patient's eye doctor, or from the patient's environment can be quite helpful.

In July 2005, a Manhattan jury awarded an investment banker $7.25 million in Schiffer v. Speaker, where the author represented the plaintiff. The doctor was found negligent in screening the patient, who had pre-operative FFK. The pain and suffering award alone was $3 million. The award was affirmed in Schiffer v. Speaker, 36 A.D.3d 520 (1st Dept 2007). Last month, in a case where the author represented the plaintiff, a Manhattan jury returned a verdict of approximately $5.6 million in another ectasia case. The pain and suffering component in that case was also $3 million. Devadas v. Niksarli, Index No. 107637/07 (N.Y. Sup. Ct.) The post-trial process is at an early stage.

In 2006, a jury in Nassau County returned a pain and suffering award of $3 million (which was reduced to $2.1 million post-trial). Gropack v. Donnenfeld, Index No. 8476/02 (Sup. Ct. Nassau Co. 2007) (J. Mahon). No meaningful claim for loss of income was reflected in that verdict.

Prior to the Schiffer case, a pilot was awarded $3.4 million for post-LASIK visual complaints. Post v. University Physicians, Inc., 2002 WL 32832041 (Ariz. Super. 2002). Last year, a $2.1 million settlement was reported in a LASIK malpractice case in New Jersey, against Dr. Joseph Dello Russo. Russell Ben-Ali, "Lasik patient received $2.1M: Eye surgeon settles suit, does not admit fault," The Star Ledger, 07/08/08.

In Crawford v. City of New York, 198 A.D.2d 48 (1st Dept. 1993), the plaintiff was awarded $1 million for pain and suffering for an injury to only one eye. In Cofsky v. Goosey, 2002 WL 32119471 (Texas Dist. 2002), the plaintiff received a settlement of $1.75 million. In Johnson v. LCA Vision, Inc., 285 A.D.2d 971 (1st Dept. 2001), the New York Appellate Division held that a $1 million award for future pain and suffering for post-LASIK visual impairment in only one eye was reasonable.

Multimillion-dollar verdicts have made LASIK surgeons less aggressive in operating on patients whose screening is suspicious for FFK. In 2005, in response to the Schiffer v. Speaker verdict, several ophthalmologists wrote and published an article in an attempt to reset the standard of care. Binder, P, Lindstrom, R, et al., "Keratoconus and Corneal Ectasia After LASIK," Journal of Refractive Surgery, Nov/Dec 2005, p. 749.

Retaliation

Finding a LASIK surgeon who is willing to testify on behalf of an injured patient is almost impossible. Yet, without a reputable LASIK surgeon, the case cannot proceed. One of the most significant impediments to retaining a LASIK expert to testify is retaliation. In Post, supra, TLC's founder, Jeffrey Machat, M.D., testified in favor of the patient.6 As a result, his refractive surgeon colleagues retaliated against him, cursed him, verbally assaulted him, and he was forced to resign from TLC's advisory board. In other cases, experts have had invitations to present at professional conferences revoked and been threatened with baseless ethics complaints.

Consequently, extraordinary efforts must be made to protect the identity of the few well-credentialed experts who are willing to testify on behalf of plaintiffs. Protective orders should be considered to insulate experts from retaliation.

FDA Advisory Panel Hearings

In April 2008, the FDA convened hearings in response to patient requests for a review of the safety and effectiveness of LASIK surgery. As there have been increasing complaints of dissatisfaction and suicide in connection with LASIK surgery, the FDA assembled members for the Ophthalmic Device Panel to hear from various constituents. In response, the FDA has commissioned a LASIK Study Task Force to evaluate quality of life after LASIK. To date, there has been no report. Incidentally, all of the ophthalmologists on the Advisory Panel wore glasses.

Contrary to the Supreme Court's view in Riegel, supra, the FDA is ineffective. The recalled LADAR 6000 surgical laser was approved without input from its Ophthalmic Device Panel. State licensing agencies are indifferent to complaints of serial wrongdoers. A LASIK surgeon in Chicago has been sued 43 times, and the Illinois Medical Disciplinary Board has seen no merit to patient complaints. Governmental oversight is myopic.

Todd J. Krouner is a principal at the Law Office of Todd J. Krouner, in Pleasantville, N. Y. He represented the plaintiffs in 'Schiffer v. Speaker' and 'Devadas v. Niksarli' which are discussed in this article. Leigh Ryan, a law clerk at the firm, assisted in the preparation of this article.

End notes:

  1. Bailey M.D., Zadnik K. "Outcomes of LASIK for myopia with FDA-approved lasers," Cornea. 2007 Apr; 26(3):246-54.
  2. For the purposes of this article, the terms "keratoconus" and "post-LASIK ectasia" will be referred to by the term "ectasia."
  3. Randleman JB, et. al. "Risk Factors and Prognosis for Corneal Ectasia after LASIK," Ophthalmology. 2003;110:267-275 at 269.
  4. See, e.g., Abby Ellin, "L.ASIK Surgery: When the Fine Print Applies to You," N.Y. Times, March 13, 2008.
  5. Ingrid U. Scott, M.D. et al., "Quality of Life in Low Vision Patients and the Impact of Low Vision Services," 128 American Journal of Ophthalmology 1 (1999).
  6. TLC is a national provider of laser facilities. It is a public company whose shares trade on the NASDAQ. Tiger Woods is one of their celebrity spokesmen. TLC was also a codefendant in the Schiffer case.

This article is republished with permission from the July 15, 2009, issue of the New York Law Journal,

 
Todd Krouner, Esq. - Continuous Successful LASIK Litigation PDF Print E-mail
Thursday, 11 June 2009 11:45

On December 23, 2010, Todd Krouner, Esq. released the following press releases for 2 new LASIK medical malpractice lawsuits:

PRESS RELEASE - FOR IMMEDIATE RELEASE

Layla Linegar v. Mark Lobanoff, M.D. and North Suburban Eye Specialists, LLP

United States District Court for the District of Minnesota, Civil Action No. ________________

DR. MARK LOBANOFF AND NORTH SUBURBAN EYE

SPECIALISTS SUED FOR LASIK MALPRACTICE

   On December 22, 2010, plaintiff Layla Linegar filed suit against Mark Lobanoff, M.D. and North Suburban Eye Specialists, LLP, in the United States District Court for the District of

Minnesota, for the negligent performance of LASIK surgery. In addition, the complaint alleges that Dr. Lobanoff and North Suburban Eye Specialists violated Minnesota’s Consumer Fraud

Act, by advertising themselves as, “[t]he preferred LASIK provider of the Minnesota Vikings.”

   In December 2008, Ms. Linegar came under the care and treatment of Dr. Lobanoff for the purpose of having LASIK eye surgery. The complaint alleges that on January 7, 2009,

without telling her in advance or discussing various options, Dr. Lobanoff performed not LASIK, but PRK, surgery on Ms. Linegar’s eyes.

   The complaint further alleges that when Ms. Linegar’s vision did not improve and she complained of pain, Dr. Lobanoff quickly scheduled a second surgery, or “enhancement,” despite the defendants’ stated policy to wait six months before further surgery. Dr. Lobanoff failed to advise Ms. Linegar of the recommended six month waiting period and did not properly test Ms. Linegar’s eyes for cornea disease. Nonetheless, on April 5, 2009, Dr. Lobanoff performed a second PRK surgery on Ms. Linegar’s left eye.

   As a result of the first two surgeries, Ms. Linegar developed haze and a scar in her left cornea, which left her functionally blind in that eye. Not to be deterred, Dr. Lobanoff recommended more surgery and on November 20, 2009, performed a third PRK surgery on Ms. Linegar’s left eye. Due to the repeated, unwarranted and excessive treatments, Ms. Linegar must now undergo a corneal transplant in order to maintain any hope of restoring her vision.

   In addition to the medical malpractice, the complaint also alleges that the defendants engage in false and misleading advertising. The complaint states that despite their advertising campaign, the defendants’ only connection to the Vikings appears to be that Dr. Lobanoff performed LASIK surgery on Greg Coleman, who punted for the Vikings 25 years ago, before the invention of LASIK.

   Ms. Linegar is represented by the Law Office of Todd J. Krouner in Chappaqua, New York and Michael A. Zimmer of Minneapolis, Minnesota. Mr. Krouner represents victims of LASIK surgery throughout the United States. Mr. Zimmer has extensive experience in litigating medical malpractice actions, including LASIK malpractice.

   A copy of plaintiffs’ complaint is available at www.krounerlaw.com. For further information, please contact Todd J. Krouner, Esq., at (914) 238-5800, or Michael A. Zimmer, Esq., at (612) 746-5546.

PRESS RELEASE - FOR IMMEDIATE RELEASE

Scott Czarniak and Adrienne Czarniak v. 20/20 Institute, LLC and Matthew K. Chang, M.D.

United States District Court for the District of Colorado, Civil Action No. 10 CV 03115

THE 20/20 INSITUTE, LLC AND DR. MATTHEW K. CHANG SUED FOR LASIK MALPRACTICE- On December 22, 2010, plaintiffs Scott Czarniak and Adrienne Czarniak, filed suit against the 20/20 Institute, LLC (the "20/20 Institute") and Matthew K. Chang, M.D., in the United States District Court for the District of Colorado, for the negligent performance of LASIK surgery on Mr. Czarniak.

On May 8, 2009, Mr. Czarniak came under the care and treatment of Dr. Matthew Chang for the purpose of having LASIK surgery on his eyes at the 20/20 Institute in Denver, Colorado. The complaint alleges, among other things, that due to the blunder of Dr. Chang, or a LASIK technician employed by the 20/20 Institute, the wrong numbers were entered into the surgical (or excimer) laser for Scott Czarniak’s left eye. As a result, Scott Czarniak developed severe visual disabilities, which cost him his job as a commercial banker. As a result of Scott Czarniak’s unemployment, he also lost his home in Avon, Colorado, had to relocate his family and required corrective surgery in an effort to restore his vision.

In addition to their inexplicable medical malpractice, the complaint also alleges that the 20/20 Institute and Dr. Chang engage in false and misleading advertising, including statements that:

  1. expressly promise 20/20 uncorrected visual acuity;
  2. implicitly promise perfect vision;
  3. assert that they are the official LASIK provider for two professional sports teams, the Colorado Avalanche and Indianapolis Colts;
  4. promise a lifetime of clear vision; and,
  5. fail to disclose that they rely on a large volume of LASIK procedures to increase revenues and decrease costs.

Plaintiffs are represented by the Law Office of Todd J. Krouner in Chappaqua, New York and Keith Cross of Cross Bennett, LLC in Colorado Springs, Colorado. Mr. Krouner represents victims of LASIK surgery throughout the United States. Mr. Cross has extensive experience in litigating medical malpractice actions, including LASIK malpractice.

A copy of plaintiffs’ complaint is available at www.krounerlaw.com. For further information, please contact Todd J. Krouner, Esq., at (914) 238-5800, or Keith Cross, Esq., at (719) 633-1359.

 

 

 $5.6 MILLION LASIK EYE MEDICAL MALPRACTICE VERDICT

June 11, 2009

PRESS RELEASE - FOR IMMEDIATE RELEASE

 

Johnson Devadas and Saramma Devadas v. Kevin Niksarli, M.D.,

Manhattan LASIK Center, PLLC, and NewSight Laser Center, PLLC

New York County, Supreme Court of the State of New York

Index # 107637/07

 

            $5.6 MILLION LASIK EYE MEDICAL MALPRACTICE VERDICT.  On Wednesday, June 10, 2009, a jury in New York City returned a verdict of nearly $5.6 million against Kevin Niksarli, M.D., for LASIK malpractice.  The verdict consisted of an award of: $2,360,000 for the patient’s loss of income; $3,100,000 for the patient’s pain and suffering, including loss of life’s enjoyment; and $120,000 for the patient’s wife’s claim for loss of her husband’s services and consortium.  This is the second largest verdict ever for LASIK malpractice.

            The lawsuit, Devadas v. Niksarli, Index No. 107637/07 (Supreme Court New York County), was commenced on May 31, 2007.   The trial began on May 20, 2009, and lasted 10  days.  The jury of three men and three women deliberated for 2 and one-half days.  The Honorable Doris Ling-Cohan presided over the trial.

Read more...
 
PROTECTIVE ORDER GRANTED IN LASIK MALPRACTICE ACTION PDF Print E-mail
Thursday, 18 December 2008 05:38

LAW OFFICE OF TODD J. KROUNER

                                                                                                                                                                                                              140 BEDFORD ROAD

                                                                                                                            PLEASANTVILLE, NEW YORK 10570

                                                                                                                                               (914) 769-8700

                                                               

             TODD J. KROUNER*                                                                                                                 OF COUNSEL                

                        ???                                                                                                                                       ???

        DOMINIQUE N. FERRERA                                                                                               EVELYN OCHMAN ROSEN

         STACEY M. RANCOURT                                                                                                                    ???

                         ???                                                                                                                                      

     *ADMITTED IN NY AND NJ                                                                                                                                                                    

 

December 16, 2008

PRESS RELEASE - FOR IMMEDIATE RELEASE

Johnson Devadas and Saramma Devadas v. Kevin Niksarli, M.D.,

Manhattan LASIK Center, PLLC, and NewSight Laser Center, PLLC

New York County, Supreme Court of the State of New York

Index # 107637/07

 

            PROTECTIVE ORDER GRANTED IN LASIK MALPRACTICE ACTION. In a LASIK malpractice case scheduled for trial in New York, in January 2009, the trial judge, the Honorable Joan B. Carey, Justice of the Supreme Court of the State of New York, County of New York, granted plaintiffs motion for a protective order, shielding the identify of plaintiffs LASIK malpractice expert.  In a decision dated December 8, 2008, Judge Carey held:

When viewed collectively, the evidence submitted by plaintiffs demonstrates a concrete risk that the expert ophthalmologist would be subjected to annoyance, expense, embarrassment, and disadvantage, if identified before trial.  The culture of the LASIK industry, as described in plaintiffs various submissions, coupled with the fact that plaintiffs expert has already personally born the brunt of antagonistic comments from colleagues for representing patients in LASIK malpractice claims, leads the Court to find that a protective order is warranted.

 

            Judge Carey was persuaded by plaintiffs submission which included an article in Ophthalmology News, reference to internet websites, and a recent slander action brought against a LASIK expert in Florida.

            As a separate matter, plaintiffs recently filed a cross motion to amend their complaint to seek punitive damages as a result of Dr. Kevin Niksarli's alteration of the treating records.  Plaintiffs' forensic expert, Albert Lyter, III, Ph.D., found that:

(1)        the last line on Dr. Niksarli's treating note for Johnson Devadas, namely R/B/A/ of LASIK Sx explained to pt including > , which treating note was purportedly created on March 25, 2004, was created at a time different than the rest of the notations on that page (Exhibit A-1);

 

                        (2)        the last line in his treating note for Saramma Devadas, namely, R/B/A of LASIK expl. to pt. incl. but not limited >, which treating note was purportedly created on March 24, 2004, was created at a time different than the rest of the notations on that page (Exhibit B-1);

 

                        (3)        the addendum to Saramma Devadas's note (Exhibit B-1) is missing, and by letter dated September 10, 2008, defendants' counsel state "there isn't a handwritten addendum after the page indicating R/B/A of LASIK expl. To pt incl. but not limited to. The chart you were given is the complete chart in Dr. Niksarli's possession";

 

                        (4)        the addendum to Mr. Devadas's treating note (Exhibit A-1) was artificially aged in a manner that is not consistent with the normal storage of medical records (Exhibit A-2); and

 

            That motion is still pending before the court.

            A copy of Judge Joan B. Carey's Order is available at www.krounerlaw.com.  A full set of plaintiffs' motion papers are available at www.krounerlaw.com.  For further information, please contact Todd J. Krouner, Esq. at tkrouner@krounerlaw.com or at (914) 238-5800. 

 
Were You Threatened With A Cease & Desist Letter? PDF Print E-mail
Wednesday, 18 October 2006 10:36

Any action YOU take as a result of being threatened with a lawsuit can be used against you in a court of law:

The judge ruled in the defamation action brought against me that because I changed my website back to its original state when threatened with a lawsuit, along with correspondence between attorneys, that my actions constituted an agreement/contract. The Pennsylvania Superior Court's opinion.

I sent the Nevyases attorney a letter of intent right after receiving the cease and desist request, and abided by the letter I sent.

Based on my experience, if you are threatened with lawsuit, I would suggest you speak to an attorney prior to considering any changes.

 
Doctors Don't Like To Take a Stand Against Each Other! PDF Print E-mail
Monday, 16 October 2006 16:00

What will you do if the unexpected happens?

You end up with a complication that cannot be "fixed" and realized that you were not properly informed of the risks, or you think you have suffered malpractice.....

It's a tactic well-known, repeated countless times, that your surgeon will probably tell you "Just give it another six months" or "The cornea heals very slowly and you just need to be patient".  Sometimes, that's enough to keep you pacified until after the statute of limitations (during which you can file a lawsuit) runs out.  Once you realize that you are not getting better, it's too late to sue.

Even if you know there's been malpractice, where are you going to find a doctor who will take a stand against his colleagues and to some degree, the refractive surgery industry?  Remember, they don't like to admit that this surgery has disabled many, many patients.  They prefer to remain in a state of denial and pretend that LASIK never harms anyone because it's an elective and UNNECESSARY surgery.  The worse LASIK and other procedures begin to look, the less money they make.  Plain and simple, this is strictly about MONEY.  Refractive surgery is completely unregulated and it's become a free-for-all for surgeons who can take a one-day class and call themselves a LASIK surgeon.  Then as they gain experience, they double it by calling each patient "two cases" because they have two eyes!

What you can expect to hear:

"I don't see any malpractice here."

"Your doctor did nothing wrong."

"That's not exactly what I said," (when your attorney calls the doctor to verify what he told you).

"There is new technology coming that can fix this, so there are no damages here."

"He is an excellent surgeon and I know he fully informs his patients."

Chances are that you will not find an expert witness near your home.  Finding one is the most difficult part of litigation, but once you have a reputable expert who says that malpractice occurred, you've got a case!

 
Public Citizen Appeals on Behalf of Gripe Web Site Operator to Protect Internet Free Speech PDF Print E-mail
Wednesday, 28 June 2006 02:53

 Court Ruling Endangers First Amendment Rights of Consumers Who Use the Internet to Complain About Companies

For Immediate Release:      Contact: Paul Levy (202) 588-1000

June 27, 2006        Robert Yule (202) 588-7703

      WASHINGTON, D.C. – A Pennsylvania resident left legally blind after lasik eye surgery should be allowed to identify his doctors on a Web site warning the public about the risks of the surgery, Public Citizen said in an appeal submitted today on his behalf in a Pennsylvania state court.

      The appeal, which was filed in Pennsylvania Superior Court in Philadelphia, seeks to reverse an injunction against Dominic Morgan forbidding him from criticizing doctors Herbert Nevyas or Anita Nevyas-Wallace on any Internet Web site.

Read more...
 
Can you imagine a truthful LASIK seminar? PDF Print E-mail
Sunday, 11 December 2005 19:00
This was sent to me by a LASIK casualty. She asked me to post this stating, "This is what the doctors should tell you". I can't find a more appropriate place on this website to place it!
Read more...
 
News Related... PDF Print E-mail
Saturday, 10 December 2005 19:00

LASIK Lawsuits - Patients and their lawyers take aim - Read more

Lawsuits Against Patients Backfire on Litigious Surgeons - Read more

Study identifies risk factors for refractive surgery malpractice lawsuits and claims - Read more

Refractive Surgical Volume Boosts Legal Risk - Read more

'Many people have had Lasik treatment, but there's little information about how many suffer complications or damage to their eye as a result.' - Read more - Subscription Required

Jury awards man $3 million

SOURCE

MALPRACTICE: The man had sued Northern Refractive Surgery Center for the care and treatment he received.

BY MARK STODGHILL

NEWS TRIBUNE STAFF WRITER

A St. Louis County jury determined that Northern Refractive Surgery Center was negligent in its care and treatment of a Duluth man and awarded him more than $3 million in damages.

Read more...
 
Informed Consent PDF Print E-mail
Thursday, 08 December 2005 23:55

Informed Consent almost always offers you absolutely NO PROTECTION!  This is to protect the doctors from lawsuits.  Most of the risks may be spelled out, and even though the doctor(s) may tell you "there shouldn't be anything to worry about", there's ALWAYS SOMETHING TO WORRY ABOUT!  You never know what COULD happen, and once you sign the informed consent, that's it!

Letter printed in the J Cataract Refract Surg, Vol. 26, October 2000

 

The editorial by a journal editor was overdue. I consider it particularly appropriate that simultaneous bilateral laser in situ keratomileusis (LASIK) is subjected to serious questioning. One can only marvel at the naive trust by patients in modern medicine and in their surgeons and the similarly naive convictions of surgeons that simultaneous bilateral LASIK is what the patients need.

It is not purely a safety issue; simultaneous bilateral surgery violates the principles of informed consent. Nobody can deny that experience with the first eye will render the patient better informed for consenting to the procedure being performed on the second eye. Simultaneous bilateral surgery deprives the patient of the possibility of gaining a better refracative outcome in the second eye and of judging the visual benefit of the surgery by comparing the operated eye +/- residual spectacle or contact lens correction with the corrected unoperated eye. Finally, simultaneous bilateral LASIK preempts a possible decision by the patient to choose another type of refractive surgery for his/her second eye, such as photorefractive keratectomy, intracorneal ring segments, or a phakic intraocular lens, or to postpone surgery on the second eye until better procedures become available if the result of LASIK on the first eye proves unsatisfactory. He/she may not have to wait very long.

Klaus D. Teichmann, MD

 
Statute of Limitations PDF Print E-mail
Wednesday, 07 December 2005 19:00
Most states have a 2-year statute from the time of incident to file a lawsuit. As laws vary by state, any lawyer in your state should be able to tell you the timeframe you have.
 
Vision Simulations for Forensic Use PDF Print E-mail
Tuesday, 06 December 2005 19:00

We prepare simulations for use in the courtroom. Please call for free consultation.

For more information
 
INTACS - The next wave of lawsuits? PDF Print E-mail
Monday, 05 December 2005 19:00

Intacs and other IOL’s, recently approved by the FDA are not without its problems either. Doctors who have vested interests in these companies have made millions from LASIK.

More on INTACS...

FDA Warning

FDA Minutes

More on STAAR #1

More on STAAR #2

 
Medical Malpractice? PDF Print E-mail
Sunday, 04 December 2005 19:00

If you've been damaged, and are seeking legal recourse for those damages, you may be quite surprised, and overwhelmed...

Each case is different. From simple to complex (as was mine), and depending on the courts, facts may necessarily mean nothing. They are easily dismissable depending on the judge's understanding, and you can still be left with no case.

To give you a better understanding, my case as an example:

In 2000 I filed a med mal lawsuit. I believed at the time because so much of my case was dismissed, that the courts didn't want to handle this case because it was so complex. I was also advised that arbitration was the more feasible route to go.

I lost the arbitration! Again, I believe because of the complexity of the case, and the lack of understanding of facts. Facts the courts, and the arbitrator didn't want to acknowledge or understand.

 
Websites focus on LASIK lawsuits PDF Print E-mail
Saturday, 03 December 2005 19:00

So who's been sued?

Go to just about every LASIK website and read the testimonials from people who are "happy and content" with their "great LASIK experience". What you won't find or hear about are the procedures that went wrong, or the number of lawsuits:

Major LASIK chains LVI, TLC (and doctors associated with). There are MANY names to add (listed below are a few), Your best bet would be to check your with local or federal courts, or websites such as:
 

Disclaimer: I do not purport the doctors named to be unsavory, unscrupulous, or otherwise. It is not my intention to slander, defame, cause libel, or otherwise. Doctors are people...PEOPLE ARE NOT PERFECT.

Read more...
 
Silence is Golden...for the LASIK Doctors? PDF Print E-mail
Friday, 02 December 2005 19:00

As Angry Patients Vent Online, Doctors Sue to Silence Them

By DAVID KESMODEL

THE WALL STREET JOURNAL ONLINE - September 14, 2005

Doctors have long accepted that their patients share opinions about the care they have received, knowing that satisfied patients will refer others while those not so happy with their bedside manner might encourage prospective customers to seek treatment elsewhere. But when William Boothe, an ophthalmologist in Texas, saw that one disgruntled former patient was posting his complaints on the Internet, he launched an aggressive response. He sued for libel and other claims, and earlier this year a state judge ordered the material removed from the Web.  (See documents below)

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When doctors sue to silence, WHAT ARE THEY HIDING?!? PDF Print E-mail
Thursday, 01 December 2005 19:00

THOSE WHO HAVE BEEN SILENCED

Dean Kantis, sued by Dr. Nick Caro (OVER 60 LAWSUITS, license FINALLY suspended) for his website: Lifeafterlasik.com

My case, which can now be posted: NEVYAS v. MORGAN - see the Nevyas Eye Associates section.

Brent Hanson, sued by Dr. William Boothe for his LA$IKQUACK.COM website: BOOTHE v. HANSON - PDF Documents

>> Judge issues Injunctive relief <<

 
And not just the courts... PDF Print E-mail
Wednesday, 30 November 2005 19:00
"When I wrote a letter to Ocular Surgery News about the unethical arrangement between my surgeon and my optometrist, I received a death threat from someone who didn't want my letter published. I retracted it out of fear that my family could be harmed, which is exactly what that person wanted."  Sandy Kellar - Lasikdisaster.com
 
Refractive Claims Up, Payouts Remain Low PDF Print E-mail
Tuesday, 29 November 2005 19:00

OMIC Publication Archives - Refractive Claims Up, Payouts Remain Low - Read more

 
DO YOU NEED A LAWYER PDF Print E-mail
Monday, 28 November 2005 19:00

If you are a lawyer who is interested in handling LASIK litigation cases, and would like to be listed here, please EMAIL ME

DO YOU NEED A LAWYER...

Who specializes in LASIK litigation? 

Law Offices of Todd J. Krouner

93 N. Greeley Avenue Suite 100
Chappaqua, New York 10514
tel. 914-769-8700

Temporary Contact Info:
140 Bedford Road
Pleasantville , New York 10570
Tel. No. (914) 769-8700

EMAIL MR. KROUNER
Mr. Krouner's client was awarded the highest settlement in a LASIK lawsuit to date against Dr. Mark Speaker.
Website: www.krounerlaw.com

Steven A. Friedman, Esquire

Law Offices of Steven Friedman
850 West Chester Pike, Suite 100
Haverford, PA  19083
Phone: (610) 789-0568
Email: safriedman.md.jd@verizon.net

Law Offices of Robert A. D'Iorio & Associates, PLLC

Robert A. D'Iorio
5335 Wisconsin Ave., NW, Suite 440
Washington, DC  20015 
Phone: (202) 243-0581
Fax: (202) 243-0582
Email: rdiorio@dioriofirm.com
Website: www.dioriofirm.com  or www.dc-lawyer.com
Read more...
 
In or around Philly? PDF Print E-mail
Sunday, 27 November 2005 19:00

In or around Philly?

Philadelphia's Civil Docket Access system can be found HERE.

Enter last name of doctor and starting date (at least 5-10 years prior) to search for. (example: enter morgan under last name, and 01-jan-2000, and any cases with the name morgan will show from jan 1, 2000. first names (dom) will narrow the search.)