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The largest reported verdict in a suit involving a popular laser-corrective eye surgery has been suspended and a new trial ordered after a key plaintiff’s expert said his testimony was wrong. The $4 million awarded to former commercial airline pilot Steve Post was left in limbo when Pima County, Ariz., Superior Court Judge Kenneth Lee granted the defendants’ motion. Post won the verdict last May after alleging that doctors at University Physicians Inc., a University of Arizona affiliate, had fallen below the standard of care by failing to impress upon him the risks of laser-assisted in-situ keratomileusis. Post v. University Physicians Inc., No. C20011817. Post was forced to give up his job as a captain for United Airlines as a result of the diminished night vision he experienced following the operation. Post claimed that during pre-operative treatment, his pupils had been measured incorrectly. He argued that because his pupils had been measured at 5.5 millimeters, rather than the 7 millimeters they measure in true darkness, his treating physicians failed to inform him of the greater risk of complication that Lasik surgery posed for patients with pupils larger than 6.5 millimeters. According to Jeffrey J. Campbell of Phoenix’s Campbell, Yost, Hergenroether, Clare & Norell and counsel for the defendants, approximately one week after the verdict was returned, both sides were contacted by Dr. Jeffrey Machat, a Toronto ophthalmologist. Machat had testified at trial as a plaintiff’s expert, saying that Post’s pupils had been incorrectly measured and that the Visx S2 excimer laser used in the procedure had insufficient range to deal with the size of Post’s pupils. After the trial, Machat told both parties that he had incorrectly equated the Canadian version of the laser software with the U.S. version. Machat said that had he known how the American version had been calibrated, he would not have claimed that the laser lacked the proper range to treat a larger pupil. Campbell then contacted Judge Lee to request an evidentiary hearing. After Machat recanted his testimony regarding the laser, Campbell filed the motion for a new trial. IT’S NOT OVER Ted A. Schmidt, Post’s attorney and a partner at Tucson, Ariz.’s Kinerk Beal Schmidt & Dyer, said that Lee’s ruling was based on a factual inaccuracy and that he would ask the judge to reconsider. Failing that, he would appeal: “We are confident that the verdict will ultimately be upheld.” Schmidt said that Machat had in fact been aware of the differences in the Canadian and American software and that he had recanted only because of professional pressure he allegedly experienced after testifying for the plaintiff. Schmidt further claimed that Machat had maintained the pertinent point of his testimony: that Post’s pupils had been measured incorrectly. He only changed his testimony regarding the ability of the Visx machine equipped with the American version of the software to operate on an eye with a pupil larger than 6.5 millimeters. Schmidt added that an important issue in the trial had been the calculation of damages. Post, who was only 33 when he underwent the Lasik surgery, had claimed $4 million in future lost income. Schmidt said that while this figure was undisputed by the defense, he felt that they had placed a great deal of faith in the idea that Post would undergo further operations that would likely restore his night vision and thus mitigate his lost-income damages. However, Post testified that he would not undergo more laser surgery and the jury indicated in post-trial interviews that they did not expect that anyone who had been injured by the Lasik procedure would necessarily elect to undergo additional laser surgery on their eyes.

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