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IN THE THIRTEENTH CIRCUIT
IN AND FOR HILLSBOROUGH COUNTY,
FLORIDA CIVIL DIVISION

ANTHONY MAJKA and LARAINE MAJKA,
and on Behalf of All Others
Similarly Situated, and
CASEY NEWTON, and on Behalf of
All Others Similarly Situated,

Plaintiffs,

v.

THE LASER VISION INSTITUTE, LLC
d/b/a THE LASIK VISION INSTITUTE,
a Florida corporation,

Defendant.

CLASS ACTION COMPLAINT

Jury Trial Demanded

Case No: 03 7210 Div. H


 

FIRST AMENDED CLASS ACTION COMPLAINT FOR DAMAGES,
INJUNCTIVE RELIEF AND ELECTION OF JURY TRIAL

I. INTRODUCTION

1. Plaintiff, ANTHONY MAJKA, is a resident of Hernando County, Florida and a former patient of the Defendant.

2. Plaintiff, LARAINE MAJKA, is a resident of Hernando County, Florida and a former patient of the Defendant.

3. Plaintiff, CASEY NEWTON, is a resident of Hillsborough County, Florida and a former patient of the Defendant.

4. Defendant, THE LASER VISION INSTITUTE, LLC d/b/a THE LASIK VISION INSTITUTE, a Florida corporation (hereinafter THE LASIK VISION INSTITUTE), has violated Florida law by adopting unfair methods of competition and deceptive acts by "baiting" prospective LASIK patients with unconscionably low rates, such as Two Hundred Ninety-Nine Dollars and No/100 ($299.00) per eye, and "switching" the rate once the prospective patient visits its clinic.

II. VENUE AND JURISDICTION

5. Venue of this cause is properly in Hillsborough County, Florida as certain of the injury and damage occurred within this County and as Defendant, THE LASIK VISION INSTITUTE, is located within this County and doing business in this County and jurisdiction of the Court is under and pursuant to Fla. Stat. §§ 501.204, 501.2105, 501.211, et seq; damages are in excess of Fifteen Thousand Dollars and No/100 ($15,000.00); and, equitable relief is also sought.

II. FACTS

6. Plaintiffs, ANTHONY MAJKA, LARAINE MAJKA and CASEY NEWTON, are former patients of Defendant, THE LASIK VISION INSTITUTE, and file this action on their own behalf as a patient and on behalf of all others similarly situated who are former and present patients of Defendant, THE LASIK VISION INSTITUTE.

7. Defendant, THE LASIK VISION INSTITUTE, typically advertised that it would perform LASIK surgeries for Two Hundred Ninety-Nine Dollars and No/100 ($299.00) per eye, such as in the advertisement attached hereto as Exhibit "A".

8. Defendant, THE LASIK VISION INSTITUTE, typically advertised that prospective patients would receive a "free consultation", such as seen in the advertisement attached hereto as Exhibit "A".

9. Prospective patients, such as Plaintiffs, ANTHONY MAJKA, LARAINE MAJKA and CASEY NEWTON, viewed the advertisement for LASIK surgery for Two Hundred Ninety-Nine Dollars and No/100 ($299.00) per eye and scheduled an appointment at Defendant, THE LASIK VISION INSTITUTE, in Hillsborough County because of the low advertised rate.

10. The low advertised rate of Two Hundred Ninety-Nine Dollars and No/100 ($299.00) per eye was unconscionable and deceptive because it was intended to attract prospective customers who would later be told that they do not qualify for the low rate and would be quoted a much higher rate for a LASIK surgery: a classic "bait and switch."

11. Prospective patients, including Plaintiffs, ANTHONY MAJKA, LARAINE MAJKA and CASEY NEWTON, would meet with a nonmedical sales person who would advise the prospective patient that they did not qualify for the Two Hundred Ninety-Nine Dollars and No/100 ($299.00) per eye rate, without patient consultation with a physician.

12. Prospective patients, including Plaintiffs, ANTHONY MAJKA, LARAINE MAJKA and CASEY NEWTON, were told they had to put a non-refundable prepayment of One Hundred Dollars and No/100 ($100.00) towards the examination prior to getting a consultation with a doctor.

13. Prospective patients, including Plaintiffs, ANTHONY MAJKA, LARAINE MAJKA and CASEY NEWTON, after being told by nonmedical personnel that they did not qualify for the Two Hundred Ninety-Nine Dollars and No/100 ($299.00) per eye rate, for medical reasons, would be presented with options for LASIK surgery at substantially higher prices.

14. Prospective patients, including Plaintiffs, ANTHONY MAJKA, LARAINE MAJKA and CASEY NEWTON, were not allowed to meet a surgeon prior to placing their non-refundable deposit of One Hundred Dollars and No/100 ($100.00).

15. The advertisements also did not disclose that the prospective patient would meet with a non medical person, (a sales person), who would not permit such patient to meet with a medical person until the payment of $100.00 was made. This nondisclosure, particularly the nondisclosure regarding the non medical sales aspects, was in and of itself deceptive, unfair and unconscionable under Florida law.

16. Prospective patients, including Plaintiffs, ANTHONY MAJKA, LARAINE MAJKA and CASEY NEWTON, would be told by non-medical personnel that they would never have to wear glasses again.

17. Representations that patients, including Plaintiffs, ANTHONY MAJKA, LARAINE MAJKA and CASEY NEWTON, would never have to wear glasses again, were deceptive and intended to generate business even from patients who would likely require glasses (i.e., reading glasses) even after the procedure.

18. Defendant, THE LASIK VISION INSTITUTE, profited by these deceptive and unfair "bait and switch" tactics by switching into expensive LASIK surgeries and/or One Hundred Dollars and No/100 ($100.00) non-refundable deposits from those patients who had been baited by the Two Hundred Ninety-Nine Dollars and No/100 ($299.00) rate.

19. These deceptions and "bait and switches" were designed to trick a reasonable person on an objective basis.

VIOLATION OF LAW

20. All matters and facts heretofore alleged are hereby realleged and reincorporated as if fully set forth herein.

21. Defendant, THE LASIK VISION INSTITUTE, has utilized unfair methods of competition, unconscionable acts or practices, and unfair or deceptive acts or practices in the conduct of trade and commerce in violation of Fla. Stat., § 501.204 (2003).

22. Pursuant to Rule 1.220 Fla.R.Civ.P., Plaintiffs, ANTHONY MAJKA, LARAINE MAJKA and CASEY NEWTON, bring this cause as a class action seeking class wide relief on behalf of all former and present patients of Defendant, THE LASIK VISION INSTITUTE, in an amount to be determined and for other class-wide relief.

23. A class of persons, including hundreds, if not thousands of consumers, were tricked by the unfair and deceptive trade practices into paying a One Hundred Dollars and No/100 ($100.00) prepayment for physician consultation without receiving LASIK or being "baited and switched" into a much more expensive procedure than advertised.

24. Plaintiffs, ANTHONY MAJKA, LARAINE MAJKA and CASEY NEWTON, on behalf of themselves and of the class, are entitled to the following relief:

a. An Order certifying this cause as a class action on behalf of all persons who have been "baited and switched" from a date to be determined until the filing of this First Amended Complaint;

b. An Order certifying this cause as a class action on behalf of all persons who paid the One Hundred Dollars and No/100 ($100.00) non-refundable prepayment and did not proceed with the LASIK surgery, from a date to be determined until the filing of this First Amended Complaint;

c. Damages, including return or refund of monies paid to Defendant, THE LASIK VISION INSTITUTE, pursuant to Fla. Stat., § 501.211;

d. Statutory attorney fees pursuant to Fla. Stat., § 501.2105 for bringing this action;

e. An injunction to enjoin further violations of law; and

f. Trial by jury of all issues so triable as a matter of right.

 

_________________________________
Steven C. Ruth, Esquire FBN: 226531
Larry D. Beltz, Esquire FBN: 126001
BELTZ RUTH MAGAZINE NEWMAN & KOHL, P.A.
SouthTrust Bank Building
150 Second Ave. N., 15th Floor
St. Petersburg, FL 33701
(727) 327-3222
 
_________________________________
Jonathan L. Alpert, Esq. Fla Bar No: 121970
THE ALPERT LAW FIRM
401 E. Jackson Street Suite 1825
Post Office Box 3270 Tampa, FL 33601

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This page was posted on January 21, 2004.