Bausch & Lomb responds to suit as case moves to federal court

Marilyn Tennissen Jun. 6, 2007, 10:00am

Bausch & Lomb has denied allegations of negligence relating to a local man's eye infection as lawyers prepare for a conference in federal court.

On March 20, plaintiffs Thomas Michael Pouch and Shari Pouch filed a suit in Jefferson County naming Bausch & Lomb Inc., Wal-Mart Stores Inc. and three employees of the store's vision center and pharmacy as defendants.

According to the plaintiffs' original petition, Michael Pouch had worn contact lenses since July 2005 and purchased Bausch & Lomb ReNu with MoistureLoc Multi-Purpose Solution that he purchased at a Lumberton Wal-Mart.

In early May 2006, Pouch began experiencing pain and loss of vision in his right eye. On May 23, 2006, he consulted with Dr. Katherine Hyde of the Wal-Mart Vision Center who eventually diagnosed him with Fusarium Keratitis, a fungal infection.

"It was subsequently learned by Mr. and Ms. Pouch that Bausch & Lomb and the other defendants knew that Bausch & Lomb's product, ReNu with MoistureLoc Multi-Purpose Solution, was causing or contributing to cause Fusarium Keratitis in individuals around the world," the petition states.

On April 17, the company, represented by Elmore Shepherd, Lynnea Myers, and Nan Leverett of Shook, Hardy & Bacon LLP of Houston, submitted its original answer to the plaintiffs' petition.

Bausch & Lomb "denies each and every, all and singular, the allegations of Plaintiffs' Original Petition and demands strict proof thereof pursuant to Rule 92 of the Texas Rules of Civil Procedure."

B&L states that the "contact lenses and lens solutions that it designs, manufactures, and distributes are free from all defects at the time they leave the care, custody and control of B&L and are reasonably fit for their intended and reasonably anticipated use and were marketed with adequate and sufficient warnings."

The company says that in light of the reasonably available scientific and technological knowledge at the time, that B&L "could not have known of the characteristics that allegedly caused the plaintiff's alleged loss or damage or known of any alternative design."

"All contact lenses and lens solutions designed, manufactured and distributed meet all applicable Food and Drug Administration standards" and also conformed with the Federal, Food, Drug and Cosmetic Act, the company claims.

In addition, B&L believes that plaintiffs were advised of the risks associated with the matters alleged in the petition and knowingly and voluntarily assumed them. "Pursuant to the doctrines of primary and secondary assumption of the risk or informed consent, this conduct bars in whole or part the damages that plaintiff seeks to recover herein."

The injuries received by the plaintiff may have been the result of an "intervening cause" and that any action on the part of B&L was not the "proximate cause or competent producing cause of the plaintiff's alleged injuries."

Pouch was seeking punitive damages from the defendants, which B&L said he is not legally entitled to.

"To recover punitive damages, plaintiff must establish an actual or constructive intent to harm based upon conscious indifference to the creation of a high probability of harm. An intent to injure, actual or constructive, is completely absent in this case."

Shook, Hardy & Bacon also represents Wal-Mart Stores Inc. and its two employees, Michael Leduc and Robert Allen.

Wal-Mart asserts that it is not the manufacturer of the subject contact lenses or lens solutions and
did not participate in the design of the product, did not alter or modify the product, did not exercise control over the content of the warning or instructions accompanying the product, did not make any incorrect express factual representations about any aspect of the product and did not actually know of any alleged defect to the product.

The employees of the vision center believed the ReNu solution was reasonably safe and fit for its intended use, the defendants' original answer to the plaintiffs' petition said.

The defense claims that Wal-Mart and the employees should be removed from the lawsuit.

After submitting the response to the plaintiffs, Shook, Hardy & Bacon also submitted a request that the case, originally assigned to Judge Gary Sanderson of the 60th Jefferson County District Court, be removed to U.S. District Court for the Eastern District of Texas.

"This is one of many cases that have been filed recently in both federal and state courts around the country involving Bausch & Lomb's ReNu with Moisture Loc Solution," defense wrote on April 27. "On Aug. 14, 2006, the Judicial Panel on Multi-District Litigation directed that the ReNu cases be transferred and coordinated for pretrial proceedings in the U.S. District Court for the District of South Carolina."

"Accordingly, Defendant expects this case to be included in a conditional transfer order to be issued soon. To conserve judicial resources and avoid inconsistent rulings, Defendant requests that this Court defer any rulings and allow the MDL judge to decide on the removal of this case," defense wrote.

If the Eastern District court decides not to allow the MDL court to rule, then it should retain jurisdiction because of a diversity of citizenship exists between the plaintiffs and the defendants and the amount in controversy exceeds $75,000.

On May 18, U.S. District Court Judge Thad Heartfield for the Eastern District of Texas accepted the case and set a June 8 deadline for an attorney conference to discuss settlement options and if parties are willing to go to trial.

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