Judge denies motion to compel contact lens maker to turn over documents

Michelle Massey, East Texas Bureau Mar. 12, 2009, 7:00am

MARSHALL – U. S. District Judge T. John Ward recently denied a plaintiff's motion to compel Advanced Medical Optics to produce privileged documents in lawsuit alleging the contact lens solution caused a woman's eye disease.

Kimlyn Cline filed the product liability suit against Advanced Medical Optics Inc., the manufacturer of Complete Moisture Plus Multi-Purpose Solution, on Feb. 18, in the Marshall Division of the Eastern District of Texas.

After 35 years of wearing contact lenses, Cline developed an infection in her left eye. She was treated for a simple eye infection but the condition worsened and claims she is now in need of corneal transplant surgery.

The Kilgore resident alleges she developed the eye infection because AMO's solution failed to adequately disinfect the lenses.

Cline wanted to obtain documents she believed showed an early awareness by AMO about a possible connection between Complete Moisture Plus Multi-Purpose Solution and Acathamoeba Keratitis infections.

The plaintiff argued the undisclosed documents are for multi-business purposes and should not be considered privileged.

In addition, Cline argued that the requested documents were given to multiple agencies such as the U.S. Food and Drug Administration and the Centers for Disease Control, and that some product studies have been made public.

However Advanced Medical Optics argued the documents and studies are subject to the attorney-product privilege as the studies were conducted in anticipation of litigation.

In the recent opinion regarding the motion to compel, Judge Ward wrote, "litigation need not be imminent to protect documents prepared by attorneys in anticipation thereof to come within the work product doctrine, so long as the primary motivating purpose behind creation of the document was to aid in possible future litigation."

Judge Ward denied the plaintiff's motion to compel.

Case background

According to Cline's lawsuit, she developed an eye infection in her left eye in March 2007. She claims the eye infection symptoms increased with her use of Complete Moisture Plus Multi-Purpose solution. After seeking medical attention, the condition worsened.

She was sent to a corneal specialist and diagnosed with Acanthamoeba Keratitis, a rare infection that is mostly found in contact lens users.

As a long-time contact lens user, Cline states she has always been diligent about disinfecting her contact lenses, is aware of the necessary procedures for cleaning and disinfecting her contacts and has complied with the instructions provided by doctors and on the solution labeling.

With the filing of the original complaint, her infection remained unresolved. Cline states that her eye specialist determined that she needs to proceed with a corneal transplant surgery to improve her vision.

Causes of action filed against the company included strict liability for design, manufacturing, and marketing defects, breach of implied warranties, and negligence.

In addition, the plaintiff asserts the defendant violated the Texas Deceptive Trade Practices and Consumer Protection Act because it knew the disinfecting solution was not effective killing the organisms that caused the plaintiff's infection.

The complaint also alleges Advanced Medical Optical misrepresented their product's characteristics, standards, quality and failed to disclose complete product information.

Cline is seeking damages for past and future medical expenses, disfigurement, lost income and wages, loss of wage earning capacity, pain, vision loss, visual disturbances, mental and emotional anguish, attorney's fees and court costs.

Arguing the defendant's actions involved an extreme degree of risk, the plaintiff is also seeking an award of exemplary damages to punish and deter "such unconscionable and irresponsible conduct in the future."

On Feb. 26, Advanced Medical Optics became a wholly-owned subsidiary of Abbott, and renamed Abbott Medical Optics.

Currently the case has a pretrial date set for June.

Tyler attorneys Michael Ace and Randell C. Roberts are representing the plaintiff in her allegations.

U.S. District Judge T. John Ward has been assigned to the litigation.

Case No.: 2:08cv00062

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