United States District Court, D. Colorado
BEYER LASER CENTER, LLC, and CRAIG F. BEYER, Plaintiffs/Counterclaim Defendants,
MATEJ POLOMSKY, Defendant/Counter Claimant.
MICHAEL E. HEGARTY, UNITED STATES MAGISTRATE JUDGE.
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”). For the reasons that follow, the Motion is
Court makes the following findings of fact viewed in the
light most favorable to Defendant, who is the non-moving
party in this matter.
Plaintiff Craig F. Beyer is an ophthalmologist who practices
at Plaintiff Beyer Laser Center (“BLC”). ECF 150
¶ 1; ECF 166 ¶ 1.
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.
Discussing options, Ms. Homan would use handouts that
contained pricing programs and videos created by
manufacturers. ECF 150-11 at 44:3-46:1.
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.
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
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.
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.
December 24, 2012, a third complaint regarding Dr. Beyer was
filed anonymously with the CMB. ECF 195 ¶ 1; ECF 201 at
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
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.
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.
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.
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.
Plaintiffs learned during discovery in the First Lawsuit of
Dr. Polomsky's CMB complaint. ECF 151 ¶
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.