Texas OD sues WalMart...... and wins. Finally, an OD with some back bone.
MEMORANDUM
DATE:
February 5, 2007
SUBJECT:
Texas Federal Court Case: Aaron v. Wal-Mart Stores, Inc. (Eastern
District
of Texas, December 28, 2006, Settlement Agreement)
TO:
Affiliate Presidents, Presidents-Elect, State Executive Directors
FROM:
Lance R. Plunkett
BACKGROUND:
Optometrist Brad Aaron, O.D., of Texas, sued Wal-Mart in federal court
in
Texas for violations of the Texas Optometry Act -- specifically,
provisions
of that law that make it illegal for retailers of optical goods to
control
or attempt to control the professional judgment, manner of practice, or
the
practice of an optometrist. Texas is unique among states in that it has
very
specific laws on this subject that spell out specific private remedies
and
specific penalties for violations by entities like Wal-Mart. The matter
in
controversy exceeded $75,000 and, since Wal-Mart is incorporated in the
state of Delaware, the case satisfied the threshold diversity of
citizenship
requirements to enable the case to be brought in federal rather than
state
court in Texas. On December 28, 2006, Wal-Mart entered into a
settlement
agreement with Dr. Aaron to end the case. The amount paid in the
settlement
agreement was stipulated to be confidential and has not been disclosed
by
the parties. Dr. Aaron is not a member of the American Optometric
Association.
PROBLEM OR ISSUE TO BE ADDRESSED:
What does this case mean for optometry nationally?
This case is important in that it demonstrates that state legislation
protecting the professional medical judgment of optometrists can be
effective. Dr. Aaron was able to allege in his court complaint that
Wal-Mart
had violated the Texas Optometry Act [which, in making it illegal to
control
the professional judgment, manner of practice, or practice of an
optometrist, also forbids the following activities by a retailer like
Wal-Mart: 1) setting or attempting to influence the professional fees
or
office hours of an optometrist; 2) restricting or attempting to
restrict an
optometrist's freedom to see a patient by appointment; 3) terminating
or
threatening to terminate an agreement, including a lease, or other
relationship in an attempt to control the professional judgment, manner
of
practice, or practice of an optometrist; 4) providing, hiring, or
sharing
employees, business services, or similar items to or with an
optometrist;
and 5) making or guaranteeing a loan to an optometrist in excess of the
value of the collateral securing the loan.] Dr. Aaron was also able to
claim
that Wal-Mart had violated the Texas Deceptive Trade Practices Act
based on
the same conduct. Wal-Mart settled the case with Dr. Aaron on December
28,
2006, paying an undisclosed sum of money to end the case.
The basic issue in the case was Wal-Mart's demanding over several years
that
Dr. Aaron keep increasing his working hours or be threatened with
termination of his lease to the Wal-Mart premises that housed his
optometric
practice. Ultimately, Dr. Aaron terminated his lease with Wal-Mart. Dr.
Aaron subsequently brought the lawsuit to recover statutory penalties
allowed under Texas law, lost wages and earnings, capital costs of
having to
open a new optometry practice, damages for mental anguish, court costs,
attorneys' fees, and interest as allowed by law on any judgment.
Because the
settlement sum remains confidential, it is not known exactly what
claims in
the case Dr. Aaron recovered what sums of money for.
At the present time, the Texas settlement agreement has limited
applicability to other states because: 1) it is just a settlement
agreement
and is not an actual decision by the court; and 2) only Texas has a law
that
sets out specific remedies and penalties that grant an optometrist a
clear
private right to sue a retailer like Wal-Mart for violations of that
law.
Tennessee is the only other state with a similar law, but the Tennessee
law
does not carry specific remedies and penalties enforceable by private
parties like the Texas law.
States may want to consider adopting provisions of law similar to those
in
Texas to protect the professional medical judgment of optometrists and
to
allow optometrists to individually enforce their rights against
entities
like Wal-Mart. In the absence of clear statutory authority, courts will
likely not accept private lawsuits to enforce such restrictions on
commercial entities. Most state laws instead reserve any enforcement
rights
to the state attorney general or another government official.
A copy of the Texas court case
<
http://www.magnetmail1.net/ls.cfm?r=14696207&sid=1878502&m=268078&u=AOA_&s=
http://www.magnetmail.net/images/clients/AOA_/attach/TXODwinsLawsuitAgainstW
alMart.pdf> , with an explanation of the case by the attorney who
handled
the matter, is attached to this memorandum.
