Allergan, Others See Class Claims Over Eye Drops Revived

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.

Real Monetary Injury

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 pcooper@bna.com

To contact the editor responsible for this story: Steven Patrick at spatrick@bna.com

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