(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.
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:
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 letter (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.
On November 7th, the Nevyases filed a lawsuit against Morgan for defamation (PART1) (PART2) (PART3), 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). On November 26th, Nevyases filed a motion for reconsideration (TRO). All TRO's and motions for reconsideration were DENIED.
In December, Morgan filed an answer to a complaint, with New Matter and a Counterclaim.
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 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
|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
|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
|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
|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
|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
|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
|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
|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
|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
|08-NOV-200709:51 AM||MOTION ASSIGNED||08-NOV-200709:51 AM|
|DOCKET ENTRY:||61-07101461 MOTION FOR JUDGMENT ASSIGNED TO JUDGE MAIER ON
|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.
|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
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:
- 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:
- 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)
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:”
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:”
From Public Citizen:
Nevyas Lasik Surgeons Resort to Trademark Law to Suppress Criticisms
by Paul Alan Levy
For several years, Dominic Morgan and the principals of the Nevyas Eye Clinic have been jousting over Morgan’s contention that, by performing inappropriate lasik surgery on him in 1998, and overlooking indications that he was not a good candidate for such surgery, the Nevyases are responsible for making him legally blind. The Nevyases filed a Lanham Act false advertising suit, claiming that Morgan’s “sucks” web site would mislead consumers about the quality of their services; that action was promptly dismissed. They also sued in state court for defamation, and obtained an injunction against the maintenance of his “sucks” web site. Public Citizen represented Morgan on appeal from the injunction, arguing that the injunction was an unconstitutional prior restraint; the appellate court reversed on state law grounds. The libel case continues to wend its way through the Pennsylvania state courts; most recently it is the Nevyases who plan to appeal, from the determination that they are limited purpose public figures who, therefore, have to prove that Morgan’s comments were posted with knowledge of their falsity or reckless disregard of a likelihood of falsity.
More recently, however, the Nevyases upped the ante by pursuing another trademark claim, this time invoking an infringement theory. The basis for this claim is that by creating web sites that use the Nevyas name in the domain name – anitanevyaslasik.com, herbertnevyaslasik.com, and nevyaslasik.com — Morgan is likely to confuse consumers into believing the web sites that announce “Why I do not recommend [the Nevyases’ services]” are sponsored by the Nevyases themselves. Apparently, what got the Nevyases really upset was that Morgan’s gripe sites rank in the first few hits on Google when users search for information about the Nevyases and their lasik clinic. So far as we can tell, they gave no consideration to the possibility that a silly claim of trademark infringement might just bring more attention to Morgan’s gripes.
Instead of suing in federal court, the Nevyases took a complaint to the National Arbitration Forum under the Uniform Domain-Name Dispute-Resolution Procedure. Over the years, the UDRP has been criticized for its bias in favor of trademark owners, and the NAF in particular has been notorious for offering business clients a friendly forum in which to cheat consumers out of their legal rights. Sure enough, the Arbitration Forum appointed a Florida trademark law professor who is a former in-house IP lawyer, who accepted the Nevyases unsworn claims as true even though Morgan denied them, refused to consider the many cases decided by the federal courts that uphold the use of trademarks in the domain names of gripe sites, and ruled in favor of the Nevyases. The panelist told the National Law Journal that any claims of bias are false because most UDRP claims aren’t close.
Morgan has now sued for a declaratory judgment of non-infringement in federal court in New Jersey.
The Nevyases lost interest in defending their UDRP victory as soon as the reality hit them that they would have to win in federal court. They dropped their claim of infringement. The consent order is here.
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!
Drs. Herbert Nevyas & Anita Nevyas-Wallace
Nevyas Eye Associates
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.”)
- 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
Locate an Eye Doctor
Locate an Eye Doctor in your area and Learn more about your Eyes
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)).
- 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.
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).
- 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).
- 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.
- 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
[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).
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.
Bryna S. Scott, Esq.
Alexis Arena, Esq.
1600 John F. Kennedy Blvd., Suite 200
Philadelphia, PA 19103
Attorneys for Claimants
Dated: July 1, 2010
View the complete document HERE
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.herbertnevyaslasik.com/media2/nocontract.pdf
2 Exhibit 2 – http://www.citizen.org/documents/nevyasmorganopinion.pdf
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 isaboutthe 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 <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 <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 <com>, <herbertnevyaslasik.com>, and <anitanevyaslasik.com> are confirmed by the public documents throughout Respondent Morgan‟s websites.
- c) Respondent has not registered <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 <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).
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.
Dominic J. Morgan, Respondent
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!
Drs. Herbert Nevyas & Anita Nevyas-Wallace
Nevyas Eye Associates
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.,
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.
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.
Bryna S. Scott, Esq.
Alexis Arena, Esq.
1600 John F. Kennedy Blvd., Suite 200
Philadelphia, PA 19103
Attorneys for Claimants
Dated: August 4, 2010
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 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:
- 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.
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.
- 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.
- 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.
- 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.
- 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.
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.
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.”
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?
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
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.
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!
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 disagreed with most of Judge DiNubile's Order and arguments for several reasons. DiNubile only addressed 4 of the websites that were listed with the courts and was specific to what was to be removed from each. For example, some of these are:
Per DiNubile’s order: On Nevyaslasik.com, 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: On Lasikdecision.com 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?..."
note: Dr. Orlin was expert witness for Drs. Herbert Nevyas and Anita Nevyas-Wallace in several of lawsuits. Below are his opinions in my lawsuit and transcript of video testimony in the Wills v Nevyas lawsuit.
Affidavit regarding LASIK and Retinopathy of Prematurity (ROP)
AFFIDAVIT OF DR. STEPHEN ORLIN
This affidavit is from Dr. Stephen Orlin, an expert witness of Drs. Herbert Nevyas and Anita Nevyas-Wallace in several lawsuits. He clearly states "Retinopathy of Prematurity, in and of itself, is not a contraindication to LASIK surgery". It also states as an expert of the Nevyases, that my retinas were "healthy" for practical purposes of LASIK.
AFFIDAVIT IN RICH TEXT:
I, Stephen Orlin, M.D., do affirm the following:
1. I have been made aware of the statements made by plaintiff's counsel that the brochures that I give to patients state that they must have healthy retinas free from disease in order to have LASIK. (See Plaintiff's Reply to Motion in Limine to Preclude Testimony of Plaintiff's Experts (Frye) of Dr. Anita Nevyas-Wallace.)
2. The statement made in that brochure is being taken out of context by plaintiff's counsel.
3. The statement made in that brochure does not apply to stable retinas, such as the retinas of the plaintiff at the time that he underwent LASIK surgery by Dr. Anita Nevyas-Wallace.
4. Mr. Morgan's retinas were "healthy" for the purposes described in the brochure.
5. Retinopathy of prematurity, in and of itself, is not a contraindication to LASIK surgery.
6. There is and was absolutely no literature, either in 1998 up and through to the present, stating that retinopathy of prematurity, in and of itself, is a contraindication to LASIK surgery. Moreover, there have not been any animal studies performed to indicate that retinopathy of prematurity, in and of itself, is a contraindication to LASIK surgery, and no indication in this case that Anita Nevyas-Wallace, M.D. was using the plaintiff as a "guinea pig" as asserted by plaintiff's counsel.
7. I stand by my previously expressed opinions as set forth in my previous reports in this case.
Stephen Orlin, M.D.
Testimony of Dr. Stephen Orlin: Wills v Nevyas
IN THE COURT OF COMMON PLEAS
PHILADELPHIA COUNTY, PENNSYLVANIA
* * *
KEITH AND JO WILLS H/W: JULY TERM, : 2001
HERBERT J. NEVYAS, M.D. :
NEVYAS EYE ASSOCIATES:
DELAWARE VALLEY LASER:
SURGERY INSTITUTE: NO. 2866
* * *
Video deposition of STEPHEN E. ORLIN, M.D., held in the law offices of
MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN,
1845 Walnut Street, 19th Floor,
Philadelphia, Pennsylvania 19103, on
Tuesday, December 16, 2003, beginning at 6:43 p.m., before Nancy D. Ronayne, a Court Reporter and Notary Public in and for the Commonwealth of Pennsylvania.
ESQUIRE DEPOSITION SERVICES
1880 John F. Kennedy Boulevard 15th Floor
Philadelphia, Pennsylvania 19103
LITVIN BLUMBERG MATUSOW & YOUNG
BY: FREDRIC S. EISENBERG, ESQUIRE
The Widener Building Floor 18
1339 Chestnut Street
Philadelphia, Pennsylvania 19107
-- Representing the Plaintiffs
MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN
BY: KATHLEEN M. KRAMER, ESQUIRE
1845 Walnut Street 19th Floor
Philadelphia, Pennsylvania 19103
-- Representing the Defendant
BY MR. EISENBERG:
Q. Doctor Orlin, is this your first time testifying for Doctor Nevyas?
A. Again, I think it is but I'm not a 100 percent sure. I have testified on behalf of his daughter Doctor Anita Nevyas in a lawsuit but I don't think that he was a -- he was named in that suit but I stand to be corrected on that.
Q. So just so we're clear, you’re not sure if you've testified and written reports for Doctor Nevyas in any other cases?
- That's correct, yes.
Q. Doctor Orlin, did you actually testify in the Morgan case for Doctor Anita Wiles Nevyas?
A. Again, I think that I wrote a report but I didn't testify.
Q. And you don't remember ever testifying for Doctor Nevyas; you remember testifying for Anita Nevyas but not for Herbert Nevyas?
A. That's correct. Again, I might be wrong, I'm just telling you I don't know.
Q. Okay. I have a report, Doctor, dated April 6th, 2001 in a Fiarelli case, Fiarelli versus Nevyas; do you remember that case?
A. I remember it now, yes.
Q. Now, is that Doctor Herbert Nevyas?
A. I'd have to see it but I think it is, yes.
Q. Without -- do you remember that case, Doctor?
A. No, I don't remember the details, no.
Q. Did you go in court and testify for him in that case?
A. Again, I honestly don't remember.
Q. Do you remember any of the opinions that you had in that case?
A. I don't remember.
Q. Do you know whether one of your opinions, Doctor, had to do with pupil size?
A. Yes, again, I don't remember.
Q. Do you know that -- or at least I'll represent to you, Doctor, that one of your opinions had to do with pupil size; would you agree with me, Doctor?
A. Again, I don't remember.
Q. Well, it wasn't that long, ago Doctor, it was 2001, it was two years ago that you issued this report. You've only been involved in seven or eight cases and you don't remember this case?
A. I've said I don't remember.
Q. Okay. Do you remember examining Ms. Fiarelli?
A. Again, I don't remember.
Q. Do you -- did you have any conversations with Doctor Nevyas about the Fiarelli case at any point in time?
A. I don't remember.
Q. Your opinion in the Fiarelli case in terms of pupil size, Doctor, you said, pupil size is now known to be a risk factor for postoperative halos particularly in high myopes, however, this too was not clearly recognized in 1997. This too was not clearly recognized in 1997 and was not an absolute contraindication to LASIK surgery. Does that refresh your recollection, Doctor, as to your opinion?
BY MR. EISENBERG:
Q. Does that refresh your recollection, Doctor, as to offering an opinion for Doctor Nevyas in another case?
A. Again, I'm not trying to be difficult but I said in the beginning I don't remember. If you would show me the report maybe I would -- I would remember it but I just -- you ask me isolated questions and I just don't remember.
Q. Sure, I'll be happy to show you the report that you issued. It's on the same letterhead at the University of Pennsylvania. It's dated April 6th, 2001. It's for another attorney here in Philadelphia, and the case name is Fiarelli versus Nevyas. And this is an expert report that you issued for Doctor Nevyas.
Q. My question, Doctor, is, does this report refresh your recollection that you testified --
Q. -- for Doctor Nevyas before tonight?
A. Yes, it does.
Q. Is this the only other occasion that you testified for Doctor Nevyas?
A. Again, I don't remember. It might, I didn't anticipate getting tat report so maybe there's another one I just don't know.
Q. Have you ever written a report, Doctor, that's critical of Doctor Nevyas' conduct?
A. No, I haven't.
Q. So we at least know of two reports that you've written defending Doctor Nevyas and we don't know any reports or you've testified there are no reports where you've been critical of him?
A. That's correct, yes.
Q. Now we established that you and Doctor Nevyas know each other professionally?
A. That's correct, yes.
Q. You both work here in Philadelphia, you both are a member of many of the same local organizations and national organizations?
A. That's correct.
Q. And did you both do work at Scheie Eye Institute?
A. Yes, we did.
Q. Is that how you got to know Doctor Nevyas?
A. Probably, he was an attending there part-time attending when I was a resident.
Q. So he's more senior than you?
A. Yes, he is.
Q. Okay. Did you do any work under Doctor Nevyas?
A. No, I didn't.
Q. Now, you said you had attended national conferences with Doctor Nevyas, did I get that right?
A. No. I -- I've been to a conference where he might have been there but we didn't attend them together.
Q. How about New Orleans in 2001, were you two together in New Orleans in 2001, the American Academy of Ophthalmology?
A. Again, I was there and he might have been there too.
Q. But you don't remember?
A. I don't remember, no.
Q. Okay. Why don't I refresh your recollection, Doctor. The American Academy of Ophthalmology Scheie Eye Institute alumni reception at the Windsor Court, New Orleans, November 12th, 2001 And I'd like this to be zoomed in on if you would. In this picture, Doctor Orlin, which I'll show you, I'm showing you for the camera right now, right here is a picture of Doctor Nevyas, can we see that on the camera?
Q. Now, Doctor, taking a look again at your report that you issued in this case. It's fair to say that you reviewed the medical records and – for Mr. Wills before issuing this report?
Q. What medical records did you review?
A. Certainly remember reviewing Doctor Nevyas' medical records.
Q. Do you have them with you here tonight?
A. No, I don't.
Q. What other medical records did you review?
A. Again, I'd have to see the pile that I was given, I don't remember whether there was a report from I think an optometrist and I don't remember his name. He might have been the person who referred Mr. Wills to Doctor Nevyas in the first place.
Q. Do you know his name, Doctor?
A. I don't remember, no.
Q. You don't remember that either?
Q. Do you remember any of the other doctors' names and records that you reviewed?
A. I read the records from Doctor Kenyon and his report but I don't remember any other ophthalmologist medical records.
Q. Okay, Doctor, you don't remember any of what I'll call subsequent treaters, any of the doctors who treated Mr. Wills after he left Doctor Nevyas' care?
A. He -- as I recall, Mr. Wills was referred to Doctor Nevyas by an optometrist. Doctor Nevyas then did the treatments so I reviewed all his records. And then in all likelihood he went back to the optometrist who referred him to Doctor Nevyas in the first place, so I would have reviewed those records as well. But again, I just do not recall the doctor's name and I'm not sure if there was more than one optometrist involved.
Q. In the medical records you reviewed of Doctor Nevyas, what was his measurement for his pupil size, for Mr. Wills' pupil size?
A. His pupil size in demi-illumination was six and a quarter millimeters in both eyes I think.
Q. And the laser ablation zone you indicated was five millimeters?
A. That's correct, yes.
Q. Do you know what kind of laser Doctor Nevyas was using?
A. No, I don't.
Q. Do you know the status of that laser?
A. No, I don't.
Q. Do you know whether Doctor Nevyas had to submit documents to the FDA in connection with that laser?
A. I think he did, yes.
Q. Do you know whether he reported Mr. Wills to the FDA in connection with that laser?
A. From my recollection and reviewing Doctor Nevyas' deposition he did have to speak to the FDA about Mr. Wills' case, yes.
Q. Have you seen any documents that were sent to the FDA in Mr. Wills' case by Doctor Nevyas?
A. Again, no, I don't think so, no.
Q. We can agree, Doctor, that one of your opinions in this case is that Mr. Wills degree of myopia of nearsightedness was considered to be acceptable for LASIK surgery in 1997?
Q. In fact, I think you go on to state that this degree of nearsightedness is still acceptable for surgery providing other tests are done including corneal thickness measurements?
A. That's correct, yes.
Q. Is that test an important test, that corneal thickness measurement test?
A. It is, yes.
Q. Is that something you do, Doctor?
Q. Before you operate on your patients?
A. Yes, it is.
Q. Why do you do that?
A. Well as I alluded to earlier, it's important to know what the thickness of the cornea is because you have to be sure that you leave a certain amount of untreated cornea in the bed before -- I mean after the operation has been done. It's somewhat controversial as to what the amount of cornea is required to prevent weakening or ectasia of the cornea from developing. The standard conventional wisdom is that it should be in the order of 250 microns but again, there's some doctors leave less than that and some doctors who leave more than that. So that's the basic importance of doing pachometry measurements.
Q. And as you said you do it?
A. I do, yes.
Q. And we know your opinion is you don't think that it was important in this case because it didn't have any effect on Mr. Wills' outcome?
A. That's correct, yes.
Q. But, Doctor, are you critical of Doctor Nevyas, just to be fair, that he didn't do this test?
A. Well, again, I think that it’s something that I would have done, yes.
Q. So if someone was practicing here at Penn under your supervision, Doctor, and they didn't do this particular pachometry test would you be critical of that, Doctor?
Q. And the same way you'd be critical of Doctor Nevyas?
Q. Now, he also didn't do what’s called a cycloplegic refraction; do you know what that is, Doctor?
Q. Why don't you explain that for the members of the jury?
A. Well, basically what a cycloplegic -- what a refraction is it’s a measurement of the person's need and strength for eyeglasses. When you have a nearsighted person or a myope as we call it, when light comes into your eye just like when light comes into a camera those rays of light have to be focused on the back of the eye or in the analogy of a camera, have to be focused on the film of the camera in order to get a clear picture. In a nearsighted person the rays of the light coming into focus in front of the retina not because the refractive power of the eye is too strong but because the eye is actually too long. So relative to the length of the eye that focusing is in front of the retina and thereby we call it nearsightedness or shortsightedness. And when you refract somebody you work out with a series of lenses how much lens power that patient needs in order to move that focal point from in front of the retina on to the retina.
And the way we do it is we put different lens of different strengths in front of the patient's eye and when the patient sees the chart clearer, clearer and until it's perfectly clear that end point would be considered to be the refraction. There's two ways of measuring somebody's refraction. One would be with a pupil un-dilated in the normal natural state. And the other way would be with the pupil dilated or as we call it cyclopleged. It's not the dilation of the pupil that's important the cycloplegia paralyzes the ability of the eye to focus, thereby giving a more objective refractive outcome than what you would have if the patient was able to accommodate, because with them accommodating they're refractive error can change.
But the point of it in this particular case is that it is not really relevant firstly because of the patient's age, and secondly, because of his myopia. And the reason for that is if you have a lot of optics involved, so I hope that the jury will understand what I'm saying, but when you have light rays that are in front of the retina, in other words, they come to be focused before the retina, if that patient would accommodate the accommodative process moves that point of refraction further away from the retina. So by means of accommodation a myope would essentially be making their vision blurrier than what it is without the corrections. So myopes really do not accommodate unless they are wearing the refractive corrections. So it is possible to do a non-cycloplegic refraction in a myope and get an accurate measurement of their refraction as opposed to someone who is farsighted where they -- because of their farsightedness they are constantly accommodating so you get a much more unpredictable measurements.
So in my practice again, a measurement, an un-cyclopleg refractive correction in a myope is much more accurate than it would be in a hyperope, in other words, a farsighted person. So I think that the refractive error in a myope is pretty much the same in what you can get with a cycloplegic versus a non-cycloplegic refraction. And the other point is that when people get older they start to lose their ability to accommodate so it's even less of an issue in somebody of Mr. Wills' age who is already starting to lose his accommodative powers so there's no reason necessarily to paralyze his ability or to accommodate. So in a long-winded way I've tried to explain that even though a cycloplegic refraction was not done it probably didn't have much bearing on the outcome of this case.
Q. Would you agree with me, Doctor, that it is a more objective test, that cycloplegic refraction?
A. It is a more objective test particularly in a hyperope not that much so in a myope.
Q. Did you read Doctor Nevyas' testimony that he -- wherein he said that cycloplegic was not as accurate and not as objective?
A. I did read that, yes.
Q. And did you agree with that?
A. Not entirely, no.
Q. Why not? Why don't you explain for the members of the jury where you and Doctor Nevyas differ?
A. Well, one thing he did allude to which might have some bearings when you cycloped somebody one of the so called side effects of the cycloplegia is that you make the pupil bigger. And when the pupil is bigger you can induce small aberrations of distortions in their refraction. So that's the point that he was trying to make in that you do induce, which is in fact probably correct, that you do induce some aberrations in the refraction but I cycloped people when I refract them. I cycloped patients when I refract them and the point that I'm trying to make is that in an older patient my cycloplegic and un-cycloplegical refractions are usually very, very comparable in their measurements.
Q. Again, Doctor, is this one of the tests you would have run on Mr. Wills had you been performing LASIK procedures back in 1997?
A. Yes, it would have been.
Q. So that's the second thing you would have done, you would have done pachometry and you would have done a cycloplegic refraction?
A. Again, I would have but I'm not sure I'm allowed to offer an opinion, I don't think that had any bearing on the outcome of this particular case.
Q. We're going to get to your opinions in a second, Doctor. You have offered an opinion is it true, Doctor, that the diameter of the ablation zone by the laser has a bearing on the subsequent risks for -- for inducing visual aberrations, particularly if the pupil diameter is larger than the ablation zone?
A. That's correct, yes.
Q. Well, I think in plain English we can agree, Doctor, that what you’re saying is, if the laser ablation zone is smaller than a patient's pupil diameter the risk of developing glare and halo is increased?
A. Again, that's some of it, we are far more aware of in 2003 than we were in 1997. But I would agree that in today I would state that small ablation zone is an increased risk factor for having halos and glare.
Q. But your opinion is that you didn't really know it back in 1997?
A. Well, again, it's something that was alluded to but a lot of the clinical studies that I reviewed state that those were the reasons why they were doing the clinical trial, to see whether or not the optical zone diameter had that much bearing on the outcomes.
Q. Well, Doctor, did you look at the literature before you prepared your opinion in this case?
A. Yes, I did.
Q. Did you bring any of that literature with you here tonight?
A. No, I don't have it.
Q. Okay. Doctor Kenyon testified about literature which was before 1997, we'll call it the pre-1997 literature. And some of the articles he referred to, Doctor, came from the American Journal of Ophthalmology, journal you're familiar with?
Q. You think that's an authoritative journal, Doctor?
A. Yes. Yes.
Q. How about Ophthalmology?
A. Yes, it is.
Q. How about something called Mosby, refractive keratotomy?
A. Well, Mosby is not a journal. Mosby is a textbook probably.
Q. Okay, something you’re familiar with though?
A. Mosby is a publisher.
Q. Okay. Sorry about. The article, the title of the article was, Refractive Keratotomy. Let's just stick with the article from Ophthalmology. Many of these articles concern PRK; you're familiar with that?
Q. Did you ever perform that?
Q. Okay. And they talk about aberrations usually occurring with scarring or haze, or irregular surface healing, you're familiar with that?
Q. There's a 1995, it’s actually a chapter in Mosby or corneal laser surgery, which talks about aberrations occurring are not due to healing. Are you familiar with that concept?
A. I'm not quite sure what you mean by not due to healing.
Q. Well, what they're showing in these articles, Doctor, is that the corneas can be virtually clear and you can still have these problems of glare and halo?
Q. Have you read articles like that?
Q. Doctor, if -- if the problems aren't from the scarring and haze isn't the point of what they’re trying to show here that the visual problems are optical? What I'll call multifocal?
A. Well again, the problems are multifactorial. In other words, there different reasons for there being these problems, one of which might be surface irregularity.
Q. If you take out the surface irregularity, Doctor, and you have a clear cornea, a cornea that's virtually clear, have you read the articles which talk about the ghost imaging and halos occurring in PRK surgery where the corneas are clear?
Q. Well, how can that be?
A. Well, it could be because of the ablation diameter.
Q. And isn't that precisely talking about here, Doctor?
Q. And is that -- when you say the ablation diameter that's when the pupil is larger than the ablation zone?
A. No. The ablation diameter is independent of the pupil size. You can have ablation zones of varying diameters. And you can have ablation zones which are larger than the diameter of the pupil, the exact opposite scenario to what Mr. Wills had and the patients can still have halos and glare and multifocal and double vision. So the point of that is that it's not only because of the ablation zone diameter or the size of the pupils that predispose patients to these problems.
Q. But wasn't there a considerable amount of literature, Doctor, written before 1997 which talked about glare and halos developing and visual distortions developing because the pupil size was larger than that ablation zone?
A. Again, a lot of the literature that I reviewed alluded to the points that you are bringing up but the pupil size was not a major factor in a lot of those articles. And again, the pupil size is something that is still not quite clear. I mean there has been as I mentioned right at the beginning of this deposition that the pupil size was originally thought to be significant or not thought to be that significant and then thought to be very significant and now again in 2003 thought to be less significant than it was originally anticipated. So again, I think that you're right in that the optical zone size and the pupil size are factors in all of the equations but they are not exclusive. And I would say for sure that not 100 percent of patients who have ablation zones that are smaller than pupil sizes end up with these sorts of problems.
Q. Doctor, we can agree though that when the pupil size is larger than the ablation zone the patient should know that they're at increased risk for developing these problems, isn't that a fair statement, Doctor?
A. I think it is a fair statement and anyone who have refractive surgery should be told that they have the risk for developing halos and glare.
Q. But this is a little bit different, Doctor. I'm not talking about anyone. I'm talking about a patient who comes in that presents with a relatively large pupil and the ablation zone is smaller than that, aren't they at increased risk for developing these problems that we're talking about?
A. I would say they probably are at increased risk.
Q. And don't you think those patients should know about that risk?
Q. And if that was one of your patients would you tell them?
MS. KRAMER: Objection.
THE VIDEOGRAPHER: Stand by please. Time is 7:54, we are now off the record.
MS. KRAMER: My objection is that I can't tell when you're asking the questions if you're talking about today or you're talking about 1997. If you're talking about today, I object.
MR. EISENBERG: We can go back on the record.
THE VIDEOGRAPHER: Stand by please. The time is 7:55; we are now back on the record.
BY MR. EISENBERG:
Q. I know you weren't doing these procedures in 1997, Doctor, so it's a bit of speculation, but if you were doing them, Doctor, is that something that you would tell your patient about, that is that they were at increased risk because of the relationship between the laser ablation zone and the pupil diameter?
A. Again, I'm not entirely sure that that concept was that clear under those -- at that time. It's something that I would mention to the patients and I'm sure that's something that people do mention to their patients certainly in today's environment. And again, I think that I read the consent form that Mr. Wills signed and halos were mentioned in that consent form.
Q. Excuse me. I'm not talking about whether halos and glare are mentioned in the consent form. Did you see anywhere -- you reviewed the consent form, didn't you?
Q. Did you review both of them, the right and left eye?
Q. Okay. I'm not asking you, Doctor, whether glare and halo is mentioned. Did you see anywhere in that consent form that it says that because of the relationship between Mr. Wills' pupil size and the laser ablation zone he was at increased risk for developing these problems?
Q. Now, Doctor, you talked a little bit about the problems Mr. Wills is suffering from, this distorted vision.
Q. Did you run any tests, Doctor, to see if Mr. Wills had this distorted vision?
A. Well, the one test that is a good objective way of measuring that problem was not available to me at the time. And that's called wave front aberrometry. Wave front is a very sophisticated way now of measuring higher order aberrations, those are distortions that a patient might be complaining about that under normal examining conditions we wouldn't necessarily be able to detect. So I didn't do that.
Q. Did you review Doctor Kenyon's reports?
Q. Did you review his report dated December 3rd, 2003?
Q. And did you see that he ran contrast sensitivity tests?
Q. Do you disagree with any of his findings on those testings, Doctor?
A. Again, can I look at that again?
A. Which report was this, the 21st of January?
Q. No, December 3rd. Have you been given that report?
MS. KRAMER: It's the new one.
THE WITNESS: Yes, but I don't have it here. You showed it to me.
MS. KRAMER: Yes, the new one.
THE WITNESS: Here it is, I'm sorry. Yes, I saw that and I just reviewed it now.
BY MR. EISENBERG:
Q. Do you disagree with anything he has to say in terms of the contrast sensitivity testing, Doctor?
Q. Do you know Doctor Kenyon, Doctor Orlin?
A. Again, I know his -- I know who he is, again, not social friends but I'm scarred to say that in just in case you have a picture of him and I at a meeting together. But I don't know him. I know who he is and certainly would recognize him and I've met him and he's been invited to the Scheie Eye Institute where I worked to give talks. He's – I mean a well-known individual.
Q. Doctor, other than the Fiarelli report which I showed you, concerning your opinions on behalf of Doctor Nevyas, and this report now that you've had a little bit more time to think about it, can you remember any other cases where you testified for Doctor Nevyas where the pupil size has been at issue?
A. I don't remember.
MR. EISENBERG: I have no further questions. Thank you, Doctor.