> IN THE CIRCUIT COURT OF TANEY COUNTY, MISSOURI
> CHERYL ATCHISON
> Plaintiff,
> vs.
> VISX, INCORPORATED,
> LASER VISION CENTERS, INC.,
> TOM V. MORRISON, M.D.,
> TRI-LAKES MEDICAL AND
> SURGICAL EYE CLINIC, INC.,
> d/b/a TRI-LAKES EYE CENTER,
> Defendants.
> Case No.: 04AFCV00676
> SECOND AMENDED PETITION
> COUNT I
> COMES NOW plaintiff and for Count I of her cause of action
> against defendants, and each of them, alleges and states as follows:
> 1. The cause of action stated in this Petition accrued in
> Taney County, Missouri.
> 2. At all times mentioned herein, defendant Tri-Lakes
> Medical and Surgical Eye Clinic, Inc., d/b/a Tri-Lakes Eye Center
> (hereinafter referred to as "Tri-Lakes Eye Center") was a corporation
> organized and existing under the laws of the state of Missouri with its
> principal office and place of business in Taney County, Missouri. It
> does business under the name Tri-Lakes Eye Center. The name and address
> of its registered agent is Tom V. Morrison, M.D., 101 Skaggs Road,
> Suite 201, Branson, Missouri 65616.
> 3. At all times mentioned herein, defendant Laser Vision
> Centers, Inc. (hereinafter referred to as "Laser Vision") was a
> corporation organized and existing under the laws of the state of
> Delaware with its principal office and place of business in St. Louis,
> Missouri. The name and address of its registered agent is Robert W.
> May, 540 Maryville Center Drive, Suite 200, St. Louis, Missouri 63141.
> 4. The defendant VISX, Incorporated (hereinafter referred to
> as "VISX") is a corporation doing business and capable of suing and
> being sued in the state of Missouri. The name and address of the
> registered agent of said corporation is the corporation company, 120 S.
> Central, Clayton, Missouri 63105. In the preceding pleadings, said
> defendant was designated as VISX, Inc..
> 5. Defendant Tom V. Morrison, M.D. (hereinafter referred to
> as "Morrison"), at all times mentioned herein, was a licensed physician
> specializing in ophthalmology, who held himself out as being able to
> perform LASIK eye surgery.
> 6. At all times mentioned in this Petition, defendant
> Morrison was the agent, servant and employee of (1) defendant Tri-Lakes
> Eye Center, and/or (2) the joint venture described in this Petition,
> and was acting within the course and scope of each those agencies.
> 7. At all times mentioned in this Petition, defendants
> Tri-Lakes Eye Center and Laser Vision Centers, Inc. were engaged in a
> joint venture to provide LASIK services to the public. Defendant Laser
> Vision Centers, Inc. would provide the machine and laser used to do the
> surgery, a technician and marketing, as well as some support staff, and
> Tri-Lakes Eye Center would provide the physician, some equipment, other
> support staff, and facilities to conduct the surgery. The fees would be
> shared according to a specific agreement. Therefore, any negligence of
> defendant Laser Vision Centers, Inc., as described in this Petition is
> imputed to defendant Tri-Lakes Eye Center, and any negligence of
> defendant Tri-Lakes Eye Center or Morrison as described in this Second
> Amended Petition is imputed to defendant Laser Vision Centers, Inc..
> 8. At all times mentioned herein, defendant Laser Vision
> Centers, Inc. was engaged in the business of furnishing, calibrating
> and maintaining the machine and computer used during plaintiff's
> surgery.
> 9. At all times mentioned in this Petition, defendant VISX
> was engaged in the business of designing, manufacturing, selling,
> renting, leasing, maintaining, furnishing, and servicing the type of
> equipment used during plaintiff's surgery.
> 10. On or about October 28, 2002, defendant Morrison
> performed LASIK surgery on both eyes of plaintiff at defendant
> Tri-Lakes Eye Center using the machine and computer furnished,
> maintained , and calibrated by Laser Vision Centers, Inc.. This machine
> and computer were designed, manufactured, sold, rented or leased,
> maintained, and serviced by defendant VISX.
> 11. The LASIK surgery was first performed on plaintiff's
> right eye. While approximately midway through performing the LASIK
> surgery procedure on the left eye, defendant Morrison and Tri-Lakes
> discontinued the procedure. The laser stopped prematurely and/or the
> fluence became out of range causing an asymmetric treatment, furrow or
> trough in the stroma and/or more ablation to be received in a portion
> of the left eye of plaintiff when the surgery was being performed,
> causing damage to her eye.
> 12. Such stopping and/or malfunction does not occur without
> negligence on the part of the person or entity manufacturing,
> designing, using, calibrating, maintaining, servicing, or operating the
> machine. The machine was under the control of defendants, and each of
> them, at the time of plaintiff's injury.
> 13. As a result of the negligence of defendants, and each of
> them, plaintiff's left eye sustained damage. The vision in
> plaintiff's left eye is blurring and causes her to see double or
> triple and causes lights to spray out. Plaintiff also suffers from pain
> in her left eye and headaches. The quality and correctness of
> plaintiff's vision in her left eye has decreased. Plaintiff has
> double vision and cannot see well at night, and requires more light for
> vision on the left eye. She has been rendered nervous and has suffered
> pain and anxiety of body and mind and has experienced emotional upset
> and personality changes. She has suffered all of the above injuries,
> pain and damages since the date of the incident and suffers them at the
> present time, and will suffer them in the future, said injuries, pain
> and damages being permanent, disabling and progressive.
> 14. Prior to the aforesaid injuries, plaintiff Cheryl
> Atchison was an able bodied woman capable of doing and performing work
> and labor. As a direct and proximate result of her injuries, she has,
> and in the future, will suffer loss of wages, earnings, salaries, and
> profits; and she has, and in the future, will suffer an impaired and
> diminished capacity for work, labor and pleasure.
> 15. By reason of her injuries, plaintiff Cheryl Atchison has
> paid or become obligated for, and in the future will pay or become
> obligated for, items of expense in obtaining and receiving medical care
> and treatment.
> 16. As a direct result of the negligence of defendants, and
> each of them, plaintiff Cheryl Atchison has been damaged and is
> entitled to such damages as are fair and reasonable.
> WHEREFORE, plaintiff Cheryl Atchison prays damages against
> defendants, and each of them, on this Petition, for such damages as are
> fair and reasonable, and for her costs herein expended.
> COUNT II
> COMES NOW plaintiff and for Count II of her cause of action
> against defendant VISX, Incorporated (referred to as "VISX"), alleges
> and states as follows:
> 17. Realleges and restates all of paragraphs 1, thru 11 of
> Count I of this Petition and incorporates each of said paragraphs
> herein by reference.
> 18. At all times mentioned in this petition, defendant VISX
> engaged in the business of designing, manufacturing, selling, leasing
> or furnishing LASIK machine for the performance of LASIK surgery.
> 19. Defendant VISX manufactured, designed, and/or sold,
> leased, rented or furnished a machine and computer to perform LASIK
> surgery (hereafter referred to as "LASIK equipment"). It sold the
> machine and computer, or leased or rented it to defendant Laser Vision
> knowing that it would be utilized in performing surgery on the public,
> including plaintiff.
> 20. The LASIK's equipment was defective, and therefore,
> unreasonably dangerous, when put to a use reasonably anticipated, in
> that it stopped prematurely and/or allowed the fluence to become out of
> range and/or caused an asymmetric treatment or a furrow or trough in
> the stroma and/or caused more ablation to be received in a portion of
> the left eye of plaintiff when the surgery was being performed. The
> said defective and dangerous condition existed when the LASIK equipment
> was manufactured, sold, and/or rented, leased, or furnished by
> defendant VISX, and used by defendant Laser Vision Centers, Inc.,
> and/or Tri-Lakes Eye Center.
> 21. At the time of the incident described in this petition,
> the LASIK equipment was:
> Being used in a manner reasonably anticipated;
> In substantially the same condition as when manufactured, sold, rented,
> and/or leased or furnished by defendant VISX.
> 22. As a direct and proximate result of the defective and
> unreasonably dangerous condition of the LASIK equipment when the LASIK
> equipment was sold, rented, and/or leased, or furnished by VISX,
> plaintiff's left eye sustained damage. The vision in plaintiff's
> left eye is blurring and causes her to see double or triple and causes
> lights to spray out. Plaintiff also suffers from pain in her left eye
> and headaches. The quality and correctness of plaintiff's vision in
> her left eye has decreased. Plaintiff has double vision and cannot see
> well at night, and requires more light for vision on the left eye. She
> has been rendered nervous and has suffered pain and anxiety of body and
> mind and has experienced emotional upset and personality changes. She
> has suffered all of the above injuries, pain and damages since the date
> of the incident and suffers them at the present time, and will suffer
> them in the future, said injuries, pain and damages being permanent,
> disabling and progressive.
> 23. Prior to the aforesaid injuries, plaintiff Cheryl
> Atchison was an able-bodied woman capable of doing and performing work
> and labor. As a direct and proximate result of her injuries, she has,
> and in the future, will suffer loss of wages, earnings, salaries, and
> profits; and she has, and in the future, will suffer an impaired and
> diminished capacity for work, labor and pleasure.
> 24. By reason of her injuries, plaintiff Cheryl Atchison has
> paid or become obligated for, and in the future will pay or become
> obligated for, items of expense in obtaining and receiving medical care
> and treatment.
> 25. By reason of all the foregoing, plaintiff Cheryl
> Atchison has been damaged and is entitled to such damages as are fair
> and reasonable.
> WHEREFORE, plaintiff Cheryl Atchison prays damages against
> defendant VISX, on Count II this Petition, for such damages as are fair
> and reasonable, and for her costs herein expended.
> COUNT III
> COMES NOW plaintiff and for Count III of her cause of action
> against defendants Laser Vision Centers, Inc., alleges and states as
> follows:
> 26. Realleges and restates all of paragraphs 1 thru 11 of
> Count I of this Petition and incorporates each of said paragraphs
> herein by reference.
> 27. At all times mentioned in this petition, defendants
> Laser Vision Centers, Inc. engaged in the business of furnishing LASIK
> equipment to physicians (said equipment being that described in Count
> II, but also including a calibrated computer) for use with LASIK
> surgery. This included the equipment used to perform the surgery on
> plaintiff.
> 28. The LASIK equipment furnished for the surgery on
> plaintiff was defective, and therefore, unreasonably dangerous when put
> to the reasonably anticipated use in that it stopped prematurely and/or
> allowed the fluence to become out of range and/or caused an asymmetric
> treatment or a furrow or trough in the stroma and/or caused more
> ablation to be received in the inferior portion of the left eye of
> plaintiff when the surgery was being performed. The said defective and
> dangerous condition existed when the LASIK equipment was furnished to
> defendant Morrison, and when used in plaintiff's surgery.
> 29. At the time of the incident described in this Petition, the
> LASIK equipment was:
> Being used in a manner reasonably anticipated; and
> In substantially the same condition as when furnished for use in
> plaintiff's surgery.
> 30. As a direct and proximate result of the defective and
> unreasonably dangerous condition of the LASIK equipment when the LASIK
> equipment was furnished by said defendant, plaintiff's left eye
> sustained damage. The vision in plaintiff's left eye is blurring and
> causes her to see double or triple and causes lights to spray out.
> Plaintiff also suffers from pain in her left eye and headaches. The
> quality and correctness of plaintiff's vision in her left eye has
> decreased. Plaintiff has double vision and cannot see well at night,
> and requires more light for vision on the left eye. She has been
> rendered nervous and has suffered pain and anxiety of body and mind and
> has experienced emotional upset and personality changes. She has
> suffered all of the above injuries, pain and damages since the date of
> the incident and suffers them at the present time, and will suffer them
> in the future, said injuries, pain and damages being permanent,
> disabling and progressive.
> 31. Prior to the aforesaid injuries, plaintiff Cheryl
> Atchison was an able-bodied woman capable of doing and performing work
> and labor. As a direct and proximate result of her injuries, she has,
> and in the future, will suffer loss of wages, earnings, salaries, and
> profits; and she has, and in the future, will suffer an impaired and
> diminished capacity for work, labor and pleasure.
> 32. By reason of her injuries, plaintiff Cheryl Atchison has
> paid or become obligated for, and in the future will pay or become
> obligated for, items of expense in obtaining and receiving medical care
> and treatment.
> 33. By reason of all the foregoing, plaintiff Cheryl
> Atchison has been damaged and is entitled to such damages as are fair
> and reasonable.
> WHEREFORE, plaintiff Cheryl Atchison prays damages against
> defendants Laser Vision Centers, Inc., on Count III this Petition, for
> such damages as are fair and reasonable, and for her costs herein
> expended.
> COUNT IV
> COMES NOW plaintiff and for Count IV of her cause of action
> against defendant VISX Incorporated, and Laser Vision Centers, Inc.,
> and each of them, alleges and states as follows:
> 34. Realleges and restates all of Counts II and III of this
> Petition and incorporates each of said paragraphs herein by reference.
> 35. The equipment was unreasonably dangerous when sold,
> leased, rented, or furnished by defendant VISX Incorporated, and when
> furnished by Laser Vision Centers, Inc. when put to a reasonably
> anticipated use without knowledge of its characteristics.
> 36. Said defendants, and each of them, did not give adequate
> warning of the danger that it might stop prematurely and/or the fluence
> might became out of range causing an asymmetric treatment, furrow or
> trough in the stroma and/or cause more ablation to be received in a
> portion of the left eye of plaintiff when the surgery was being
> performed, causing damage to her eye.
> 37. As a direct and proximate result of the product being
> sold, rented, leased, and/or furnished for surgery on plaintiff without
> inadequate warning, plaintiff's left eye sustained damage The vision
> in plaintiff's left eye is blurring and causes her to see double or
> triple and causes lights to spray out. Plaintiff also suffers from pain
> in her left eye and headaches. The quality and correctness of
> plaintiff's vision in her left eye has decreased. Plaintiff has
> double vision and cannot see well at night, and requires more light for
> vision on the left eye. She has been rendered nervous and has suffered
> pain and anxiety of body and mind and has experienced emotional upset
> and personality changes. She has suffered all of the above injuries,
> pain and damages since the date of the incident and suffers them at the
> present time, and will suffer them in the future, said injuries, pain
> and damages being permanent, disabling and progressive.
> 38. Prior to the aforesaid injuries, plaintiff Cheryl
> Atchison was an able-bodied woman capable of doing and performing work
> and labor. As a direct and proximate result of her injuries, she has,
> and in the future, will suffer loss of wages, earnings, salaries, and
> profits; and she has, and in the future, will suffer an impaired and
> diminished capacity for work, labor and pleasure.
> 39. By reason of her injuries, plaintiff Cheryl Atchison has
> paid or become obligated for, and in the future will pay or become
> obligated for, items of expense in obtaining and receiving medical care
> and treatment.
> 40. By reason of all the foregoing, plaintiff Cheryl
> Atchison has been damaged and is entitled to such damages as are fair
> and reasonable.
> WHEREFORE, plaintiff Cheryl Atchison prays damages against
> defendant VISX, and defendant Laser Vision Centers, Inc., on Count IV
> this Petition, for such damages as are fair and reasonable, for her
> costs herein expended and for such other and further relief as the
> Court may deem just and fair in the premises.
> PLACZEK & FRANCIS
> By: _____________________
> MATHEW W. PLACZEK
> Missouri Bar No. 24819
> ANGELA DESANCTIS MYERS
> Missouri Bar No. 53935
> 1722 S. Glenstone, Suite J
> Springfield, MO 65804
> Phone: 417-883-4000
> Attorneys for plaintiff.
> Posted by Admin at February 21,