For Second Time, Judge Dismisses Eye-Drop Class Action Against Allergan, Valeant, Bausch & Lomb, Others

Shook, Hardy & Bacon secured the dismissal of an amended putative class action for clients Allergan, Valeant and Bausch & Lomb on March 24, 2016. U.S. District Judge Freda Wolfson, of the District of New Jersey, ruled that plaintiffs still had not established economic harm from allegedly oversized eye drops manufactured by eight prescription eye-drop manufacturers.

Shook secured the initial dismissal on June 24, 2015, from the same judge; at that time, she said that the plaintiffs’ theory of their alleged injuries was "too remote and abstract” to give them standing.

The plaintiffs’ amended complaint included claims that smaller drop volume would reduce wastage during administration and result in cost savings, with new calculations of cost-per-drop losses. In ruling to dismiss the second time, Judge Wolfson stated that the cost-savings was speculative because plaintiffs still failed to show that smaller-tipped bottles would be priced lower based solely on volume. She also found that plaintiffs failed to establish economic harm or entitlement to reimbursement; the bottle design in use was approved by the FDA; and there were no allegations that plaintiffs would have purchased comparable cheaper products, producing smaller drops, in place of the defendants’ products.

A Law360 story covered the eye drop class action dismissal in more detail.

Shook Partners Lori McGroder and Jim Muehlberger led the defense.