Beyer Laser Center, LLC v. Polomsky

          ORDER

          MICHAEL E. HEGARTY, UNITED STATES MAGISTRATE JUDGE.

         Before the Court is Plaintiffs Beyer Laser Center, LLC, and Craig F. Beyer's Motion for Summary Judgment (ECF 151). Plaintiffs seek summary judgment in their favor on Defendant's two remaining counterclaims: Claim 3 for abuse of process, and Claim 6 for violation of the Colorado Consumer Protection Act (“CCPA”).^[1] For the reasons that follow, the Motion is granted.

         FINDINGS OF FACT

         The Court makes the following findings of fact viewed in the light most favorable to Defendant, who is the non-moving party in this matter.

         1. Plaintiff Craig F. Beyer is an ophthalmologist who practices at Plaintiff Beyer Laser Center (“BLC”). ECF 150 ¶ 1; ECF 166 ¶ 1.

         2. From April to October 2012, Katherine Homan was BLC's Refractive Services Director. When a prospective patient first contacted BLC, Ms. Homan would inform the patient of the available treatment options. Among these options, she would describe the differences between “conventional” and “custom” treatments. ECF 150-10 ¶¶ 2-3.

         3. In Discussing options, Ms. Homan would use handouts that contained pricing programs and videos created by manufacturers. ECF 150-11 at 44:3-46:1.

         4. BLC also distributed material that contained the following when a patient was choosing his or her desired procedure:

As of June 2003, the FDA approved a more expensive “customized” approach to LASIK surgery called “WavePrint” or “CustomVue.” Unlike the “Traditional” treatment, “the CustomVue WavePrint refractive technology provides a WavePrint Map - a unique fingerprint of the patient's vision that displays the refractive errors and aberrations of the eye. This information is directly entered into the laser allowing an extremely precise, customized treatment for your eye.

ECF 150-5.

         5. In 2011, Dr. Beyer hired Dr. Polomsky for a fellowship at BLC, which would begin upon Dr. Polomsky's completion of his residency in the summer of 2012. ECF 150 ¶ 1; ECF 166 ¶ 1.

         6. In October 2012, Dr. Richard Stewart, another ophthalmologist at BLC, filed a complaint with the Colorado Medical Board (“CMB”) accusing Dr. Beyer of obtaining patients' consent for a specific procedure and then “ultimately performing an entirely different procedure.” ECF 150-20 at 5; ECF 166 ¶ 21. In the Complaint, Dr. Stewart stated that Dr. Beyer had been “substituting the PTK cards for PRK/LASIK cards and passing this off to patients as refractive surgery.” ECF 150-20 at 6.

         7. In November 2012, Dr. Polomsky filed a similar complaint with the CMB. In this document, Dr. Polomsky reported that Dr. Beyer “ha[d] been switching laser vision correction treatment cards without patients' knowledge or permission.” ECF 150-19; see ECF 150 ¶ 19 and ECF 166 ¶ 19. He stated further that the “switched treatment cards were of inferior quality to what the patient asked for, had been consented for, and paid for.” ECF 150-19.

         8. On December 24, 2012, a third complaint regarding Dr. Beyer was filed anonymously with the CMB. ECF 195 ¶ 1; ECF 201 at 2.

         9. Dr. Polomsky determined to end his fellowship at BLC “early” based on “a lot of things, ” including the “stress” of being “associated with Dr. Beyer, ” who he believed to be “committing fraud.” ECF 150-57 at 34:4-7, 35:18-25, 36:1. Beginning August 20, 2012, Dr. Polomsky worked with a “head-hunter” and on his own to seek alternate employment; he interviewed with an ophthalmology practice in Wilmington, North Carolina in November 2012 and accepted its offer in December 2012 for a position with a starting salary of $120, 000. ECF 166-28 at 6.

         10. On March 13, 2015, the CMB suspended Dr. Beyer's license to practice medicine. In the Order of Suspension, the CMB stated it determined it had “reasonable grounds” to conclude Dr. Beyer had “deliberately and willfully violated” ethical standards based on his practice of using PTK cards to perform PRK or Lasik procedures. ECF 150-21 at 1-2. The letter stated the suspension was “pending proceedings for suspension or revocation.” Id. at 2. The notice informed Dr. Beyer that he “may request a hearing” before the CMB to argue “why the suspension should be set aside.” Id. at 3.

         11. At the hearing held on April 9, 2015, the CMB “reviewed and considered new information regarding th[e] matter” and concluded the suspension “should be terminated.” It thereby reinstated Dr. Beyer's license to “active and in good standing.” ECF 150-22 at 1-2.

         12. There is no dispute that during the relevant period, Dr. Beyer used PTK cards to perform PRK procedures. Dr. Beyer continued to do so after the CMB terminated his suspension. ECF 150-3 at 189:8-13.

         13. On June 22, 2015, Plaintiffs initiated a lawsuit in Boulder County, Colorado District Court against Dr. Stewart and “John Doe” based on claims related to the suspension of Dr. Beyer's license (the “First Lawsuit”). ECF 151 ¶ 26; ECF 163 ¶ 26.

         14. Plaintiffs learned during discovery in the First Lawsuit of Dr. Polomsky's CMB complaint. ECF 151 ¶ 30.^[2]

         15. Plaintiffs initiated this action against Dr. Polomsky on October 27, 2016, in Boulder County District Court, ECF 4. Dr. Polomsky timely removed the action to this Court, ECF 1.

         LEGAL ...