Intraocular Lenses Litigation

IOL example

Intraocular lenses or IOLs are artificial lenses implanted by ophthalmologists in the human eye to correct vision loss resulting from removal of the eye’s natural crystalline lens during cataract surgery. Since at the least the mid-1950’s, IOLs have been an acceptable mode of treatment.[1]

As of 1985 there were 17 to 20 manufacturers of IOLs with the six largest having over 80% of the market. One of the leading competitors was Surgidev Corporation of Goleta, California near Santa Barbara.[2]

In 1985 five key employees of Surgidev left the company and soon thereafter organized a new company, (Eye Technology, Inc. (ETI)), to manufacture IOLs and compete with Surgidev and other such manufacturers.

Litigation ensued. Surgidev sued its former employees and ETI in Minnesota’s federal court.[3] It asserted claims for unfair competition, misappropriation of trade secrets, breach of contract, breach of fiduciary duty, conversion and wrongful interference with contractual relations and prospective economic advantage.[4]

The defendants retained Faegre & Benson to defend the case, and I was in charge of the team at the law firm.

We answered the complaint by denying its material allegations and asserting counterclaims for alleged wrongful interference with ETI’s public offering of securities, abuse of process, malicious prosecution, and defamation. The district court granted Surgidev’s motion to dismiss the counterclaim for abuse of process, but otherwise denied the motion, holding that the counterclaims were not a “sham” and were protected by Noerr-Pennington privilege from tort liability for filing suit and the defamation claim was one for “slander per se” rather than “trade libel,” and thus, special damages did not have to be pled.[5]

The parties later returned to the district court for a combined hearing and trial on Surgidev’s motion for preliminary and permanent injunction. The court concluded that there was no breach of the former employees’ contractual non-compete and non-disclosure provisions. [6] But the court held that they had engaged in wrongful interference with certain Surgidev agreements and, therefore, enjoined them from attempting to solicit through December 31, 1986, any Surgidev employees from joining ETI, from having four named doctors doing any work for ETI and from soliciting certain Surgidev customers to become ETI customers.[7]

The granting of the injunction was affirmed by the appellate court.[8]

I have three extraneous memories from this case.

Some of the depositions were taken in Santa Barbara and San Diego, California, and I remember opposing counsel and I split the cost of a rental car to drive to San Diego. I was the driver, and it was a harrowing drive on a very dark and very rainy night on Interstate 5.

Boston was the location for other depositions. On a day off in the midst of a heavy snow storm I had lunch in a Russian restaurant near Harvard Square with a Grinnell College contemporary to talk about our mutual interest in El Salvador.

The last memory is lunch at a Minneapolis hotel with an ophthalmologist who was involved in the case and who, out of the blue, offered to perform laser surgery on my eyes to correct my nearsightedness. I declined the offer.

In 1998 ETI was merged into Star Tobacco and Pharmaceuticals Inc. which was focused on developing a new, “less-harmful” cigarette. Now known as Star Scientific, Inc., it still is pursuing this cigarette goal and apparently no longer manufactures IOLs.[9]

[1]  Surgidev Corp. v. Eye Technology, Inc., 648 F. Supp. 661, 669 (D. MInn. 1986).

[2]  Id. at 671-73.

[3]  See Post: Minnesota’s Federal Court (June 28, 2011).

[4]  Surgidev Corp. v. Eye Technology, Inc., 625 F. Supp. 800, 801 (D. Minn. 1985).

[5]  Id.

[6] Surgidev Corp. v. Eye Technology, Inc., 648 F. Supp. 661, 696-99 (D. MInn. 1986).

[7] Id. at 700-04.

[8]  Surgidev Corp. v. Eye Technology, Inc., 828 F.2d 452 (8th Cir. 1987).

[9] Jones, Star Moves Toward Stock Market.  Eye Technology Deal Prepares Petersburg Company To Go Public, Richmond Times-Dispatch (Feb. 10, 1998); Star Scientific, Corporate Policy Statement,

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As a retired lawyer and adjunct law professor, Duane W. Krohnke has developed strong interests in U.S. and international law, politics and history. He also is a Christian and an active member of Minneapolis’ Westminster Presbyterian Church. His blog draws from these and other interests. He delights in the writing freedom of blogging that does not follow a preordained logical structure. The ex post facto logical organization of the posts and comments is set forth in the continually being revised “List of Posts and Comments–Topical” in the Pages section on the right side of the blog.

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