Court Dismisses Eye-Drop Putative Class Action

U.S. District Court, New Jersey

Shook, Hardy & Bacon attorneys secured a dismissal for clients Allergan, Valeant and Pfizer in a putative class action against eight prescription eye-drop manufacturers.

The 24 plaintiffs alleged the companies designed their bottles to produce unnecessarily large doses of eye drops, forcing product overflow in the eye. The extra product could lead to dangerous side effects in the body, they argued, and the forced waste resulted in retailers overcharging them for the eye drops.

The court disagreed, finding their allegations "nothing more than conjecture." The court found that the plaintiffs "have neither alleged any comparable cheaper products that they would have purchased, nor have they alleged that Defendants would manufacture, or have manufactured, less expensive products based on a different design."

"In sum, absent sufficient allegations as to injury, Plaintiffs are left with their bald assertion that they overpaid for effective eye medications that would have been less expensive if they were designed according to Plaintiffs’ specifications," the court held. "Such a conclusory theory is simply too remote and abstract to qualify as a concrete and particularized injury under Article III standing."

The plaintiffs then filed an amended complaint with new calculations of cost-per-drop losses. The court again agreed with Shook's arguments, finding that the theory of cost-savings was still too speculative. "Plaintiffs’ reimbursement theory rests on their disagreement with how Defendants designed their bottles—a design that has been specifically approved by the FDA in a medical context—and their insistence that they should be reimbursed for drops that were wasted as a result of the design, although Plaintiffs were never promised a certain number of doses," the court found. "This is not sufficient."

Cottrell v. Alcon Laboratories, No. 14-5859 (D.N.J. 2016).