Shook, Hardy & Bacon secured a dismissal for clients Allergan, Valeant and Pfizer in a proposed class action against eight prescription eye-drop manufacturers on June 24 when a New Jersey federal judge dismissed the case, stating that plaintiffs failed to state an ascertainable loss.
The customers alleged that the eye-drop manufacturers were purposely making dispensed drops too big, forcing customers to waste the product and purchase more of it. Customers also argued that the large dose could lead to side effects like allergies or pigmentation of the eye, and as a result, customers allege they were overcharged. Defendants included brand-name manufacturers Allergan, Valeant, Pfizer, Merck and Alcon, and generic pharmaceutical companies Sandoz, Prasco and Akorn.
U.S. District Judge Freda Wolfson said the plaintiffs' theory of their alleged injuries from the eye drops was "too remote and abstract" to give them standing.
"Plaintiffs' injury-related allegations amount to nothing more than conjecture, since 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," she wrote.