Lenscrafters, Inc. v. Wadley, 3:98-0150.

Decision Date16 January 2003
Docket NumberNo. 3:98-0150.,No. 3:00-0096.,3:98-0150.,3:00-0096.
Citation248 F.Supp.2d 705
PartiesLENSCRAFTERS, INCORPORATED, Plaintiff, v. Fredia WADLEY, in her Official capacity as Commissioner of the Tennessee Department of Health, et al., Defendants. U.S. Vision, Cole Vision Corporation, and National Association of Optometrists and Opticians, v. Fredia Wadley, in her Official capacity as Commissioner of the Tennessee Department of Health, et al., Defendants.
CourtU.S. District Court — Middle District of Tennessee
Order Granting in Part, Denying in Part Motion to Amend Opinion February 26, 2003.

COPYRIGHT MATERIAL OMITTED

Barbara Jean Moss, Wyatt, Tarrant & Combs, Nashville, TN, Stacey Leigh Jarrell, Julie A. Maloney, Thorp, Reed &amp Armstrong, Pittsburgh, PA, Thorp, Reed & Armstrong, Pittsburgh, Barry Friedman, New York, NY, Kenneth Edward Pringle, Pringle, Quinn & Anzano, Belmar, NJ, for Lenscrafters, Inc., pltf.

Eugene N. Bulso, Jr., Barbara Hawley Smith, Melissa R. Ballengee, Boult, Cummings, Conners & Berry, Nashville, TN, for defts.

Raoul A. Renaud, Vision Service Plan, Rancho Cordova, CA, for Vision Service Plan.

Richard M. Smith, Smith & Cashion, PLC, Nashville, TN, for Gary Collins.

MEMORANDUM

TRAUGER, District Judge.

Pending before the court are cross-Motions for Summary Judgment (Docket Nos. 163, 169) and responses thereto (Docket Nos. 197, 200) For the reasons discussed herein, the defendants' motion will be granted, and plaintiffs' motion will be denied.

I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
A. Evidentiary Matters

As an initial matter, plaintiffs refer to a number of documents in support of their Motion for Summary Judgment, as well as their Response to the defendant's Motion for Summary Judgment, that defendants have objected to as inadmissible under Federal Rules of Evidence 802 and 901. (Docket No. 197 at pp. 1-2). Because some of these objections are well founded, the court will not consider the inadmissible documents, except to the extent that they are incorporated into plaintiffs' expert testimony.

In addition, defendants have moved to strike (Docket No. 209) Plaintiffs Statement of Material Facts in Support of Response to Motion for Summary Judgment (Docket No. 202), or in the alternative for relief from Local Rule 8(b)(7), which the plaintiffs have opposed (Docket No. 211). The court finds that the Plaintiffs Statement of Material Facts is not a concise statement of additional facts (being 202 pages in length) and is redundant with regard to many of the facts set forth in Plaintiffs's Statement of Undisputed Facts in support of their own Motion for Summary Judgment. However, in lieu of striking Plaintiffs' Statement of Material Facts in Support of Response to Motion for Summary Judgment, the court will grant defendants' relief from the Local Rule and will consider the additional facts set forth by the plaintiffs only to the extent the court is certain that those facts could not be disputed.

Finally, plaintiffs have filed a Motion to Supplement the Record (Docket 212), which defendants have opposed (Docket No. 219). Because this evidence has been proffered subsequent to the close of discovery, plaintiffs' motion will be denied.

B. Parties1

Interstate optical firms, such as the plaintiffs, are businesses that employ licensed opticians.2 The purpose of their businesses is to sell optical goods to consumers at the retail level. Plaintiffs operate retail optical stores in several states, including Tennessee.3 In some states plaintiffs sublet space and/or diagnostic equipment inside of their stores to licensed optometrists. In Tennessee, plaintiffs are prohibited from doing so by Tenn.Code. Ann. § 63-8-113(c)(6), which provides that:

(c) It is unlawful for any licensed optometrist to:

(1) Advertise optometric services or ophthalmic materials, except as provided in subsection (d);

(2) Practice optometry as an employee of any person or business or organization not engaged primarily in health care delivery;

(3) Practice optometry under a name other than the optometrist's own unless board approved;

(4) Appoint agents or other persons to take orders for optometric services or ophthalmic materials;

(5) Split or share fees with any person or organization in return for solicitation of customers by that person or organization;

(6) Practice or offer to practice optometry in, or in conjunction with, any retail store or other commercial establishment where merchandise is displayed or offered for sale. Any licensed, registered optometrist practicing in premises of such type prior to April 17, 1967, shall be permitted to continue the independent practice in that optometrist's present location, or in such new location to which the retail store or other commercial establishment might move, but when any such optometrist vacates any such premises, no other optometrist shall be permitted to practice in such vacated premises; or

(7) Engage in practice in any temporary or mobile office except as authorized by the board, or any office which does not have the appropriate instrumentation for diagnosis and treatment for the practice of optometry as established by the board.

Defendants Richt, Spivey, Hendrickson, Abernathy, Foster, and Browder are members of the Tennessee State Board of Optometry. Defendant Browder is the consumer member of the Board. The remaining members of the Board are Tennessee licensed optometrists.4 Defendant Wadley is the Commissioner of the Tennessee Department of Health. All defendants are sued in their official capacities.

With respect to the Board's authority, Tenn.Code.Ann. § 63-8-112 provides in pertinent part:

The board is given authority to:

(1) Make rules, regulations, policies and procedures not inconsistent with the laws of this state, for the proper performance of its duties to carry out the purposes, and to enforce the provisions of this chapter;

(2) Provide a standard of efficiency as to the moral, educational and experience qualifications and fitness of all persons who desire to practice optometry in Tennessee, in conformity with the provisions of this chapter;

. . . . .

(5) Investigate possible violations of and enforce the provisions of this chapter;

. . . . .

(7) Seek injunctions to prevent violations of this chapter. Such actions shall be brought in the chancery court of Davidson County or the chancery court of the county in which the defendant resides or does business. Such actions may be brought by ten (10) or more licensed optometrists or a state association of optometrists as well as by the board[.]

The Department of Health is organized into divisions, among them the Division of Health Related Boards, which, concurrent with the Board of Optometry, is charged with enforcing the state's optometry laws.

C. Retail Optical Market

Prescription optical goods are sold from a number of outlets in Tennessee. These outlets include interstate optical stores, local optical stores, health maintenance organizations (HMOs), and dispensaries operated by optometrists and ophthalmologists incident to their practice. Plaintiffs refer to the optometrists and ophthalmologists who operate such dispensaries as dispensing optometrists and ophthalmologists. For ease of reference, the court will as well, even though the term has no legal significance. Plaintiffs economic expert, Dr. Daniel L. Rubinfeld, estimates that the share of the retail market occupied by the different outlets is as follows:

                Dispensing Optometrists     39.2%
                Dispensing Ophthalmologists 12.6%
                Chains                      34.5%
                Local optical stores        10.9%
                HMOs                         2.9%
                

(Docket No. 163, Ex. 2 at p. 10) Dr. Rubinfeld's estimates are based upon data provided by Jobson's.5 Defendants have offered unrefuted evidence that this data is often unreliable. (Docket No. 197 at pp. 17-19)

D. Practice of Optometry in Tennessee

Tennessee regulates and licenses optometrists, ophthalmologists, and opticians. See Tenn.Code.Ann. §§ 63-8-101 (optometrists), 63-6-101 (ophthalmologists), and 63-14-101 (opticians). Optometrists are required to have earned a doctor of optometry (O.D.) degree to obtain licensure in Tennessee. Upon being licensed, optometrists are authorized to examine eyes, prescribe corrective lenses, diagnose eye disease, and prescribe drugs to treat eye disease.6 Optometrists are also authorized to dispense optical goods incident to their practice of optometry. As stated, those who do so will be referred to herein as dispensing optometrists. Those who do not dispense optical goods incident to their practice will be referred to as prescribing optometrists.

Ophthalmologists are medical doctors who have specialized in the diagnosing and treating of the eye. In addition to performing the functions carried out by optometrists, ophthalmologists are authorized to perform eye surgery.

According to the Tennessee Supreme Court's decision in Lenscrafters, Inc. v. Sundquist, 33 S.W.3d 772 (Tenn.2000), Tennessee licensed optometrists are health care providers.7 Retail optical goods establishments are not health care providers. Rather, they are deemed "dispensing opticians" under Tenn.Code Ann. § 63-14-102. As such, plaintiffs are "allowed to prepare, adapt, and dispense lenses, spectacles, eye glasses, frames, and optical devices." Id. at 777. Businesses "in the practice of dispensing opticians" are also allowed to employ persons licensed as opticians, as long as the optician is "under the actual and personal supervision of partners, officers, managers or stockholders who possess valid unrevoked licenses as dispensing opticians entitled to practice in [Tennessee]." Id. (citing Tenn.Code Ann. § 63-14-103(d) (1997)). Thus, plaintiffs may sell ophthalmic lenses and frames and may employ opticians who dispense ophthalmic lenses and frames.

E. Legislative History of Tenn.Code. Ann. § 63-8-113(c)(6)

The prohibition on optometric practice in or in conjunction with retail establishments...

To continue reading

Request your trial
5 cases
  • City of New York v. Milhelm Attea & Bros., Inc.
    • United States
    • U.S. District Court — Eastern District of New York
    • April 30, 2008
    ... ... See, e.g., LensCrafters, Inc. v. Wadley, 248 F.Supp.2d 705, 737 (M.D.Tenn.2003) ("The court can see no basis for finding ... ...
  • U.S. v. Morrison
    • United States
    • U.S. District Court — Eastern District of New York
    • February 6, 2009
    ... ... Department of Taxation and Finance of N.Y. v. Milhelm Attea & Bros., Inc., 512 U.S. 61, 64-65, 114 S.Ct. 2028, 129 L.Ed.2d 52 (1994). Because ... Compare LensCrafters, Inc. v. Wadley, 248 F.Supp.2d 705, 737 (M.D.Tenn.2003) ("The court can ... ...
  • U.S. v. Morrison
    • United States
    • U.S. District Court — Eastern District of New York
    • November 9, 2007
    ... ... Department of Taxation and Finance of N.Y. v. Milhelm Attea & Bros., Inc., 512 U.S. 61, 64-65, 114 S.Ct. 2028, 129 L.Ed.2d 52 (1994). Because ... Compare LensCrafters, Inc. v. Wadley, 248 F.Supp.2d 705, 737 (M.D.Tenn.2003) ("The court can ... ...
  • Lenscrafters, Inc. v. Robinson
    • United States
    • U.S. Court of Appeals — Sixth Circuit
    • April 14, 2005
    ... ... v. Wadley, 248 F.Supp.2d 705, 728-29 (M.D.Tenn.2003) (quoting Pike, 397 U.S. at 142, 90 S.Ct. 844). It appears to us that the court simply omitted the word ... ...
  • Request a trial to view additional results
12 books & journal articles
  • Table of Cases
    • United States
    • James Publishing Practical Law Books Archive Is It Admissible? - 2015 Part IV - Demonstrative Evidence
    • July 31, 2015
    ...53 Cal.2d 544, 348 P.2d 887, (1960), §44.500 Lehnhard v. Moore, 401 S.W.2d 232 (Texas 1966), §9.505 LensCrafters, Inc. v. Wadley, 248 F.Supp.2d 705 (M.D.Tenn., 2003), §23.401 Lentz v. Nic’s Gym, Inc. , 90 A.D.3d 618, 933 N.Y.S.2d 875 (N.Y.A.D. 2 Dept. 2011), §30.300 Leonard v. Boston Ry. Co......
  • Table of Cases
    • United States
    • James Publishing Practical Law Books Archive Is It Admissible? - 2014 Part IV - Demonstrative Evidence
    • July 31, 2014
    ...53 Cal.2d 544, 348 P.2d 887, (1960), §44.500 Lehnhard v. Moore, 401 S.W.2d 232 (Texas 1966), §9.505 LensCrafters, Inc. v. Wadley, 248 F.Supp.2d 705 (M.D.Tenn., 2003), §23.401 Lentz v. Nic’s Gym, Inc. , 90 A.D.3d 618, 933 N.Y.S.2d 875 (N.Y.A.D. 2 Dept. 2011), §30.300 Leonard v. Boston Ry. Co......
  • Table of Cases
    • United States
    • August 2, 2016
    ...53 Cal.2d 544, 348 P.2d 887, (1960), §44.500 Lehnhard v. Moore, 401 S.W.2d 232 (Texas 1966), §9.505 LensCrafters, Inc. v. Wadley, 248 F.Supp.2d 705 (M.D.Tenn., 2003), §23.401 Lentz v. Nic’s Gym, Inc. , 90 A.D.3d 618, 933 N.Y.S.2d 875 (N.Y.A.D. 2 Dept. 2011), §30.300 Leonard v. Boston Ry. Co......
  • Basics of documentary evidence
    • United States
    • James Publishing Practical Law Books Is It Admissible? Part II. Documentary evidence
    • May 1, 2022
    ...facts and circumstances that inform the contractual text and render it capable of only one meaning. 20 LensCrafters, Inc. v. Wadley , 248 F.Supp.2d 705 (M.D. Tenn., 2003) involved a case wherein retailers of prescrip- tion eyewear challenged the constitutionality of a Tennessee statute that......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT