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Up Front | Jul 2002

Defense Claims Dr. Machat “Dropped a Bombshell” in Post vs. UPI Lawsuit

Court grants Defense Motion for Evidentiary Hearing—will the Defense be granted a new trial?

Within weeks after a Pima County, Arizona, jury returned a record $4 million verdict in favor of Stephan Post in his lawsuit against University Physicians, Inc., (UPI), relating to his LASIK surgery, both parties are back in court, with the Defense seeking an Evidentiary Hearing and a new trial. On Monday, June 24th, 2002, Judge Kenneth Lee heard oral argument and granted Defendant UPI's post-trial Motion for an Evidentiary Hearing on what it asserts is “newly discovered evidence in support of its Motion for New Trial.”1

UPI previously filed its Motion for an Evidentiary Hearing, in conjunction with a Motion for a New Trial, on May 29, 2002. These two motions arise from a bizarre turn of events that allegedly occurred on May 21, 2002, involving the Plaintiff's expert witness, Jeffery Machat, MD. The Motion for a New Trial and affidavit of UPI Attorney Jeff Campbell attached to UPI's Motion for Evidentiary Hearing allege that “on Tuesday, May, 21, 2002, plaintiff's expert, Dr. Jeffrey Machat, dropped a bombshell. Without forewarning or notice and on his own initiative Dr. Machat contacted attorney Jeff Campbell. Dr. Machat informed Mr. Campbell that he wanted to assist in any way possible with defendant's appeal. Dr. Machat stated that this case was a ‘grave injustice.' Remarkably, Dr. Machat informed Mr. Campbell that he understands the software programs were different between the VISX laser machines in the United States and in the international community. In other words, Dr. Machat admitted that his trial testimony on this pivotal issue was wrong!”2

In support of its motion, UPI also attached an affidavit from Attorney Janet Richardson, counsel for VISX, Inc. (Santa Clara, CA). In her affidavit, she stated that, prior to the trial, “Mr. Redhair [counsel for Mr. Post] informed me that one of Mr. Post's experts, Dr. Machat, indicated that he had had a conversation with a VISX employee, Carol Harner, in which Ms. Harner allegedly made certain representations to him about the optical zone of the VISX laser used during Mr. Post's surgery. I informed Mr. Redhair on several occasions that Ms. Harner would deny having made the indicated statements to Dr. Machat.” Attorney Richardson further stated in her affidavit, “Mr. Redhair also informed me that Dr. Machat intended to testify about the size of what Dr. Machat calls the ‘effective optical zone.' I informed Mr. Redhair that VISX would not substantiate those opinions, and that Dr. Machat's opinions were incorrect. I made similar statements to Mr. Beal [also counsel to Mr. Post] when I saw him in court in California on May 6.”3

Stephan Post's attorneys opposed the motions. In their response to Defendant's Motion for a New Trial, they asserted that, to “properly evaluate Defendants' Motion for a New Trial, the Court needs to understand what prompted Dr. Machat's telephone call to the attorneys and what his current options are. This verdict was the largest verdict ever recorded in a LASIK case. This verdict has the LASIK industry in an uproar. Because of the size of the verdict, Dr. Machat has been the central focus of the uproar within the LASIK industry. Prior to this case, Dr. Machat was one of the most respected members of the LASIK community. Now, Dr. Machat is viewed as a pariah. The reasoning behind Dr. Machat's telephone call to the attorneys in this case is clear. Because of the large verdict, Dr. Machat is fighting for his professional reputation. Dr. Machat is under tremendous pressure from all corners of this profession as a result of his involvement in this case.”4

Plaintiff's attorneys, Michael Redhair and Robert Beal, also filed affidavits, in which they rebutted several of the allegations in the Defense motion and affidavits. Mr. Beal's affidavit claimed that after the trial, “Dr. Machat spoke with an ophthalmologist colleague who is not associated with VISX. This colleague told Dr. Machat there was a difference as of May of 2000, between the VISX Star S2 software (3.10 version) in the United States and Canada.” The affidavit goes on to state that “Dr. Machat does not now know for sure if the VISX Star S2 (3.10 software) was different in the United States and Canada as of May, 2000, but felt he should raise this possibility with both parties.”5 Mr. Redhair's affidavit claimed that he spoke to Janet Richardson on February 22, 2002, and March 3, 2002, and that her understanding was that the effective optical zone of the VISX S2 laser “given Steve Post's eye characteristics, would be 6.0 mm and not the 5.5 mm as opined by Dr. Machat. This was so in spite of the fact that the treatment zone with this laser was 6.5 mm.”6

Defendant UPI has moved for a new trial based on irregularities in the proceedings, newly discovered evidence, potential misconduct of the prevailing party, and an excessive damages award that it claims was not justified by the evidence.7 While motions for new trials are not routinely granted, Judge Lee has granted the Defense Motion for an Evidentiary Hearing. This ruling will permit the defense counsel to question Dr. Machat further under oath concerning his telephone call to Attorney Campbell on May 14, 2002, the VISX lasers, and his trial testimony on these and related issues. After that testimony is taken, Judge Lee must then decide whether the defense is entitled to a new trial. A date has not yet been set for Dr. Machat to appear and give further testimony pursuant to Judge Lee's June 24th ruling.

1. UPI's 5/29/02 Motion for an Evidentiary Hearing, p.1
2. UPI's 5/29/02 Motion for New Trial, pp. 3-4; 5/28/02 Affidavit of Jeffrey Campbell, Esq attached to UPI's 5/29/02 Motion for Evidentiary Hearing at Exhibit “1”
3. 5/29/02 Affidavit of Janet Richardson, Esq. attached to UPI's 5/29/02 Motion for New Trial as Exhibit “'1”
4. Plaintiff Post's 6/12/02 Response to UPI's Motion for New Trial at p. 4; Affidavit of Robert Beal, Esq, attached to Plaintiff Post's 6/12/02 Response to UPI's Motion for New Trial at Exhibit “3”
5. Affidavit of Robert Beal, Esq, attached to Plaintiff Post's 6/12/02 Response to UPI's Motion for New Trial at Exhibit “3”
6. Affidavit of Michael Redhair, Esq, attached to Plaintiff Post's 6/12/02 Response to UPI's Motion for New Trial at Exhibit “13”
7. UPI's 5/29/02 Motion for New Trial, pp. 3-4

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