Summary Judgment Granted in Favor of Eye Health Products Supplier

New York and South Carolina

Shook serves as national counsel for Bausch & Lomb in litigation relating to the 2006 recall of ReNu® with MoistureLoc® contact lens solution allegedly linked to an outbreak of Fusarium keratitis, a rare fungal infection of the cornea. This litigation has involved approximately 1,300 cases with an MDL in South Carolina and consolidated proceedings in New York, as well as alleged class action claims for personal injury and consumer fraud.

These “Fusarium” cases were settled, but additional plaintiffs alleged that they experienced eye infections other than Fusarium keratitis. Following extensive briefing and a three-day joint federal/state Frye/Daubert hearing, Shook obtained rulings in favor of Bausch & Lomb from both Justice Shirley Kornreich, who presided over the consolidated New York litigation, and Judge David Norton, who presided over the MDL in the District of South Carolina. These rulings excluded the testimony of the plaintiffs’ expert witnesses in nearly 1,000 remaining cases (more than 95 percent of the then-existing litigation).

Shook obtained summary judgment for Bausch & Lomb as to all remaining non-Fusarium cases in the New York litigation. This case is currently on appeal in the New York Coordinated Proceedings.  In re: Bausch & Lomb, Inc. Contact Lens Solution Products Liability Litigation, 2009 WL 2750462 (D.S.C.) (Daubert); 693 F. Supp. 2d 515 (summary judgment); 25 Misc. 3d 1244(A), 2009 WL 4893926 (N.Y.Sup.).