Hollman v. TLC The Laser Eye Center Institute Inc et al

Filing 401

ORDER denying 387 Motion for Reconsideration. Signed by Honorable J Michelle Childs on 12/21/11.(awil)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
GREENVILLE DIVISION
Charles Benjamin “Ben” Dickerson, on behalf
of himself and all others similarly situated
Plaintiff,
v.
TLC LASIK Centers:
TLC The Laser Eye Center (Institute), Inc.;
TLC The Laser Center (Carolina), Inc.; TLC
The Laser Center (Madison), Inc.; TLC The
Laser Center (Institute), Inc. d/b/a TLC
Denver; TLC The Laser Center (Institute), Inc.
d/b/a TLC Atlanta; TLC Laser Eye Centers
Oklahoma City; TLC The Laser Center (TriCities), Inc.; TLC The Laser Center
(Massachusetts), Inc.; TLC The Laser Center
(Brea), Inc.; TLC Laser Eye Centers
Cleveland; TLC Laser Eye Centers Columbus;
TLC The Laser Center (Boca Raton), Inc.;
TLC Laser Eye Centers (Pittsburgh), TLC
Laser Eye Centers (Fargo); Valley Laser Eye
Center, LLC; TLC The Laser Center
(Institute), Inc. d/b/a TLC Manhattan; TLC
The Laser Center (Institute), Inc. d/b/a TLC
Garden City; TLC The Laser Center (Institute),
Inc. d/b/a TLC Torrance; TLC The Laser
Center (Northeast), Inc. d/b/a TLC North
Jersey; TLC Laser EyeCenters Tulsa; TLC
Laser Center (Northeast), Inc. d/b/a TLC
Rockville; TLC The Laser Center (Institute)
Inc. d/b/a TLC White Plains; TLC Midwest
Eye Laser Center, Inc. d/b/a TLC Chicagoland;
TLC The Laser Center (Northeast), Inc. d/b/a
TLC Big Sky; TLC The Laser Center
(Institute), Inc. d/b/a TLC Charleston; TLC
The Laser Center (Institute), Inc. d/b/a TLC
San Antonio; TLC Laser Eye Centers Edina;
TLC The Laser Center (Indiana), LLC; TLC
The Laser Center (Institute), d/b/a TLC Ft.

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C.A. No. 6:10-cv-00685-JMC
ORDER AND OPINION

Lauderdale; TLC The Laser Center (Institute),
d/b/a TLC Tampa;
TLC Clinical Directors:
Jo Angeles, O.D.; Kristen Brown, O.D.;
E. Edward Carmen, O.D.; Phillip Cuva, O.D.;
Despina Fikaris, O.D.; J. Christopher Freeman,
O.D.; Jeffrey J. Genos, O.D.; Lee Ann Gertz,
O.D.; Rhonda Kerzner, O.D.; David Kohler,
O.D.; William Bruce Laurie, Jr., O.D.; Michael
Mariano, O.D.; Elizabeth M. McLemore, O.D.;
Melissa Melott, O.D.; Andrew S. Morgenstern
O.D.; Debbie Pian, O.D.; Mary J. Rauch, O.D.;
Carl J. Roth, O.D.; Susan Shin, O.D.; Stephen
Siegel, O.D.; Mark A. Slosar, O.D.; Thomas
Spetalnick, O.D.; Derek Van Veen, O.D.;
Cynthia Yaeger, O.D.; Individually and in their
capacity as Clinical Director for TLC The Laser
Eye Center (Institute), Inc.;
TLC LASIK Surgeons:
Jodi Abramson, M.D.; Alberto Aran, M.D.;
Robert Arffa, M.D.; David K. Aymond, M.D.;
David Boes, M.D.; Stan Braverman, M.D.;
Stephen Brint, M.D.; Barry Concool, M.D.;
Charles Davis, M.D.; Eric Donnenfeld, M.D.;
Martin Fox, M.D.; David Hunter, M.D.;
Scott Jaben, M.D.; Jeffrey Machat, M.D.;
Peter Mogyordy, M.D.; John Oster, M.D.;
George Pardos, M.D.; Edward Perraut, M.D.;
Louis Probst, M.D.; Randall Rabon, M.D.;
Jeff Robin, M.D.; Roy Rubinfeld, M.D.;
Stephen Slade, M.D.; Mark Speaker, M.D.;
Robert Spector, M.D.; Nancy Tanchel, M.D.;
Brad Taylor, M.D.; Gregory Temas, M.D.;
Stewart Terry, M.D.; Mark E. Whitten, M.D.;
Larry Womack, M.D.;Wendell Wong, M.D.;
Jonathan Woolfson, M.D.;
TLC Management:
Brian Andrew, Esq.; Stacey Anne Lerum;
Bob May, Esq.; John Potter, M.D.,

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Defendants.
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_________________________________________ )

This matter is before the court on Plaintiff Benjamin “Ben” Dickerson’s (“Plaintiff”) Motion
to Alter and Amend [Doc. 387] this court’s order granting Defendants TLC LASIK Centers, TLC
Clinical Directors, TLC LASIK Surgeons, and TLC Management’s motions to dismiss all claims
asserted by Plaintiff. Based upon the record before the court, Plaintiff’s Motion is denied.
STANDARD OF REVIEW
A court may alter or amend a judgment if the movant shows either (1) an intervening change
in the controlling law; (2) new evidence that was not available at the time of the judgment; or (3) that
there has been a clear error of law or a manifest injustice. See Robinson v. Wix Filtration Corp., 599
F.3d 403, 407 (4th Cir. 2010).
DISCUSSION
Plaintiff brought this action as a putative class representative alleging causes of action for
violations under the Racketeer Influenced and Corrupt Organization Act (“RICO”) and declaratory
and equitable relief relating to certain medical records of the putative class members against the
individual and corporate Defendants. Specifically, Plaintiff alleged that Defendants created and
utilized a database containing medical information without the consent and knowledge of the
patients, and that such actions violated the civil RICO statute.
All Defendants filed motions to dismiss Plaintiff’s Amended Complaint on the grounds that
Plaintiff failed to state a claim under RICO and failed to state a claim for declaratory and injunctive
relief. The court granted Defendants’ motions finding that Plaintiff failed to demonstrate any

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concrete, quantifiable injury to his business or property, and therefore, had no standing to pursue his
RICO claims. The court further found that Plaintiff’s RICO claims were barred by the statute of
limitations, and that Plaintiff failed to state a claim for declaratory and injunctive relief.
In his motion for reconsideration, Plaintiff contends that the court impermissibly concluded
that Plaintiff’s interest in intangible medical information was insufficient to confer standing for a
RICO claim because the RICO statute does not include the word “tangible.” Plaintiff argues that an
injury to an interest in intangible property, such as the confidential information in the Plaintiff’s
medical records, is sufficient to confer RICO standing. However, while there is no differentiation
in the statute between tangible and intangible property, courts have repeatedly held that certain
injuries to intangible property interests are not sufficient to confer RICO standing. See, e.g., Regions
Bank v. J. R. Oil Co., LLC, 387 F.3d 721, 730 (8th Cir. 2004) (intangible property interests such as
security interests or contractual rights to repayment are not the type of injuries that may support
standing under RICO); Diaz v. Gates, 380 F.3d 480, 484-85 (9th Cir. 2004) (the right to pursue
gainful employment is at most a “valuable intangible property interest” which is insufficient to
satisfy RICO’s standing requirement); Price v. Pinnacle Brands, Inc. 138 F.3d 602, 607 (5th Cir.
1998) (“Injury to mere expectancy interests or to an “intangible property interest” is not sufficient
to confer RICO standing.”). Accordingly, the court finds that Plaintiff’s statutory construction
argument lacks any merit and declines his request to alter the court’s order on that basis.
Plaintiff also argues that the court incorrectly analyzed his allegations concerning his out-ofpocket losses related to unnecessary surgeries and pretextual meetings. The court found that
“Plaintiff’s loss of money for amounts paid for unnecessary surgeries derives from the performance
of the initial surgery and the alleged failure to properly inform Plaintiff of his proper diagnoses. . .
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.” Order, at 19 [Doc. 383]. Plaintiff argues that the correct interpretation of his allegations would
lead to the conclusion that “Mr. Dickerson was never a candidate for Lasik surgery at all but that he
paid money for the initial Lasik surgery and then incurred expenses in attending meetings
purportedly to discuss his vision problems but in actuality to further the Defendants’ cover up of the
true facts.” Plaintiff’s Motion to Alter and Amend, at 8 [Doc. 387]. This is merely a restatement
of Plaintiff’s prior arguments in response to the motions to dismiss and do not distinguish Plaintiff’s
claims in this case from the substance of a medical malpractice claim. The court adequately
addressed this issue in its Order and declines to alter its findings.
Finally, Plaintiff argues that the court erred in finding his claims barred by the statute of
limitations. Plaintiff alleged in his Amended Complaint that Defendants performed laser eye surgery
on him, for which he alleges he was contraindicated, sometime between 1998 and 2003. He further
alleges that he began experiencing vision problems, was scheduled and rescheduled for corrective
treatments, and that Defendants canceled his Lifetime Commitment Contract despite representations
that such benefit would continue for life. The court ruled that because Plaintiff alleged that his
surgeries were performed between 1998 and 2003 and the alleged predicate acts were accrued, at the
latest, by May 2005, his claims were barred by the statute of limitations. In determining when the
statute of limitations began to run, the court adopted the discovery accrual rule. See Rotella v. Wood,
528 U.S. 549, 555-57 (2000) (discussing that the statute of limitations begins to run when the
plaintiff knows or should know of the existence of a RICO injury, not discovery of the other
elements of a claim such as the underlying pattern of racketeering activity). The court also found
that Plaintiff failed to plead any basis upon which the court could find his claim equitably tolled.
See Klehr v. A.O. Smith Corp., 521 U.S. 179, 194-95 (1997) (noting that a plaintiff must use
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reasonable diligence to discover the claim). Although Plaintiff disagrees with the court’s analysis,
the court finds that Plaintiff has failed to present the court with any basis upon which it should
amend its ruling on the statute of limitations issue.
For the foregoing reasons, the court DENIES Plaintiff’s Motion to Alter and Amend [Doc.
387] .
IT IS SO ORDERED.

United States District Judge

Greenville, South Carolina
December 21, 2011

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