By Perry Cooper
Allergan Inc., Pfizer Inc., Merck & Co. and other drug makers must face consumer claims over eye drop size after the U.S. Court of Appeals for the Third Circuit revived a proposed class action Oct. 18 ( Cottrell v. Alcon Labs. , 2017 BL 372976, 3d Cir., No. 16-2015, 10/18/17 ).
The glaucoma patients’ allegations are more than just “mere grumblings"—patients say they suffered financial harm by buying medication that was impossible to use, Judge Luis Felipe Restrepo wrote for the court.
The ruling that the patients have standing to sue means consumers will face one less speed bump in their attempts to go after Big Pharma, plaintiffs’ counsel Leah M. Nicholls told Bloomberg Law.
Nicholls, of Public Justice P.C. in Washington, said she expects the “exceptionally well written, well reasoned opinion” to be frequently cited for its “great layout of the standing analysis.”
Attorneys for the drug makers didn’t respond to email requests for comment.
Consumers of prescription eye medication sued several manufacturers and distributors of drops approved to treat conditions such as glaucoma.
They alleged the eye drop dispensers release more medication than they need, forcing them to waste some and risk complications if excess enters their tear ducts.
The district court dismissed the claims for lack of standing. The Third Circuit reversed, finding the patients alleged sufficient monetary injury.
The court acknowledged that the Seventh Circuit found otherwise in a March decision involving similar allegations against many of the same defendants.
The Seventh Circuit, like the district court below, improperly “blended standing and merits together,” the Third Circuit said.
Judge Michael A Chagares joined the opinion. Judge Jane Richards Roth dissented. The majority allowed “the plaintiffs here to manufacture a purely speculative injury in order to invoke our jurisdiction,” she said.
Public Justice P.C.; Simon Law Firm in St. Louis; Richard S. Cornfeld in St. Louis; Cohn Lifland Pearlman Herrmann & Knopf; and Brian S. Wolfman in Washington represented the plaintiffs.
Greenberg Traurig; Shook Hardy & Bacon; Kirkland & Ellis; and others represented the drug makers.
To contact the reporter on this story: Perry Cooper in Washington at firstname.lastname@example.org
To contact the editor responsible for this story: Steven Patrick at email@example.com
Full text at http://src.bna.com/ttY.
Copyright © 2017 The Bureau of National Affairs, Inc. All Rights Reserved.
All Bloomberg BNA treatises are available on standing order, which ensures you will always receive the most current edition of the book or supplement of the title you have ordered from Bloomberg BNA’s book division. As soon as a new supplement or edition is published (usually annually) for a title you’ve previously purchased and requested to be placed on standing order, we’ll ship it to you to review for 30 days without any obligation. During this period, you can either (a) honor the invoice and receive a 5% discount (in addition to any other discounts you may qualify for) off the then-current price of the update, plus shipping and handling or (b) return the book(s), in which case, your invoice will be cancelled upon receipt of the book(s). Call us for a prepaid UPS label for your return. It’s as simple and easy as that. Most importantly, standing orders mean you will never have to worry about the timeliness of the information you’re relying on. And, you may discontinue standing orders at any time by contacting us at 1.800.960.1220 or by sending an email to firstname.lastname@example.org.
Put me on standing order at a 5% discount off list price of all future updates, in addition to any other discounts I may quality for. (Returnable within 30 days.)
Notify me when updates are available (No standing order will be created).
This Bloomberg BNA report is available on standing order, which ensures you will all receive the latest edition. This report is updated annually and we will send you the latest edition once it has been published. By signing up for standing order you will never have to worry about the timeliness of the information you need. And, you may discontinue standing orders at any time by contacting us at 1.800.372.1033, option 5, or by sending us an email to email@example.com.
Put me on standing order
Notify me when new releases are available (no standing order will be created)