Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. No. IP-79-438-C -- Cale J. Holder, Judge.
Cummings, Chief Judge, Gibson,*fn* Senior Circuit Judge and Cudahy, Circuit Judge.
This diversity appeal involves a claim that the American Optometric Association ("AOA") negligently disseminated misleading information concerning the qualifications of optometrists, as a group, to detect eye diseases such as glaucoma. The district court granted summary judgment in favor of AOA on the ground that the plaintiff had failed, as a matter of law, to demonstrate misrepresentation. For the reasons stated below, we affirm the judgment of the district court.
In January 1977, plaintiff, John Collins, began experiencing difficulty with his vision. Between January and October of that year, Collins visited at least four separate optometrists at different times. None of these optometrists diagnosed Collins as having glaucoma, although Collins at that time apparently did have an advanced and progressing condition of glaucoma, which was subject to diagnosis. In December 1977, plaintiff first sought the assistance of an ophthalmologist*fn1 -- Dr. Wilbert Washington -- for his eye problems. After an examination, Dr. Washington informed Collins that he had an advanced case of glaucoma and was losing his vision.
On May 17, 1979, Collins filed suit against three of the individual optometrists he had visited and against the AOA. In his Amended Complaint, Collins alleged that each of the individual defendants "negligently failed to diagnose or detect or treat plaintiff's condition of glaucoma," and that the AOA, in order to induce members of the public to seek the services of optometrists, negligently misrepresented to the public "that optometrists were educated and qualified to detect glaucoma and to give the best vision care possible." Specifically, with respect to AOA, paragraph 9 of plaintiff's Amended Complaint alleged:
In order to induce members of the public to seek the services of optometrists, including the defendant optometrists, the defendant, American Optometric Association, negligently advertised, informed and represented to the public, including the plaintiff, that optometrists were educated and qualified to detect and diagnose glaucoma and to give the best vision care possible. It also represented that optometrists were capable of giving preventive care, when in fact some members of its association were not so qualified.
Plaintiff further alleged that the negligence of the defendants, including AOA, "caused the condition of glaucoma of the plaintiff's eyes to progress from a nonimpairing, controllable condition to that of a disabling, irreversible near blindness." Amended Complaint para. 10.
The parties conducted extensive discovery in the court below, which included the taking of depositions of the plaintiff and the three defendant optometrists. In addition, AOA produced for Collins' inspection the various informational pamphlets distributed by AOA to its members or to the public, usually upon request, from 1970 to the present. In all, AOA produced 73 pamphlets dealing with various facets of eye care and health. Despite this production, Collins was unable to identify any particular pamphlet, publication, article or advertisement upon which he relied in seeking optometric care. Nor was Collins able to establish or confirm that any representations he claimed to have seen were attributable to or published by AOA.
AOA filed a motion for summary judgment and/or dismissal on February 2, 1980, alleging, inter alia, that "traditional principles of tort law" precluded a finding of liability on the part of AOA. The trial court held, as a matter of law, that AOA's representations were neither false nor misleading and, thus, granted AOA's motion for summary judgment. Collins filed an initial notice of appeal on June 22, 1981; this appeal was later voluntarily withdrawn on the ground that it was probably premature in that it challenged a grant of summary judgment entered in favor of only one of multiple defendants. Following the withdrawal of this appeal, Collins executed Covenants Not to Sue with the three individual optometrists named in the Complaint and, on October 28, 1981, the district court dismissed Collins' action, without prejudice, as to these three defendants. The instant appeal, in which AOA is the sole defendant-appellee, followed.
On appeal, plaintiff argues that the district court erred in granting AOA's motion for summary judgment because material issues of fact existed both as to the truthfulness of AOA's representations and as to plaintiff's reliance on those representations in seeking optometric care. With regard to truthfulness, plaintiff alleges that AOA inaccurately and misleadingly represented "that optometrists as a class had the training, ability, and capability of diagnosing or detecting all eye diseases including glaucoma" and "that as a class, optometrists are competent, qualified, professional, careful, specialized and to whom the public can go with confidence that they are the major eye health care providers anywhere." Appellant's Br. at 10. With regard to reliance, or proximate cause, plaintiff claims that he "testified in his deposition that he had read the American Optometric Association literature and advertisements, and as a result, he felt that optometrists would take care of all of his eye care needs." Id. at 20. These allegations, plaintiff argues, entitle him to a jury trial on the issue of AOA's liability for damages under theories of misrepresentation, negligence, and/or constructive fraud.
Defendant, by contrast, argues that the district court correctly determined, as a matter of law, that AOA's representations were not misleading because the Optometry Code of Indiana "establish[es], as a matter of law, that optometrists are educated, licensed and qualified to detect (but not treat) signs of eye diseases such as glaucoma." Dist. Ct. Opinion at 4.*fn2 In addition, defendant argues that the district court's grant of summary judgment in favor of AOA "is independently ...