Allergan, Others Win Dismissal of Suit Over Eye Drop Size

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By Julie A. Steinberg

Allergan Inc., Pfizer Inc. and other drug makers won their bid to dismiss a consumer class suit alleging the companies’ glaucoma eye drops were unnecessarily large, resulting in too high a price ( Eike v. Allergan, Inc. , 7th Cir., No. 16-3334, 3/6/17 ).

Judge Richard A. Posner of the U.S. Court of Appeals for the Seventh Circuit March 6 vacated a district court order that certified the consumer suit as a class action. He remanded the matter to the district court with directions that it be dismissed.

Charlene Eike contended she and other class members overpaid because of the size of the drops.

The companies challenged a decision by the U.S. District Court for the Southern District of Illinois that said the plaintiffs could sue as a group.

Posner said the plaintiffs’ claims were doomed in part by the Food and Drug Administration’s approval of the drops—a determination they were safe and effective to treat glaucoma.

A court can’t bypass the agency and make its own safety and efficacy determination, Posner said.

Additionally, he said the plaintiffs wouldn’t have standing, or reason to sue, even if it could be shown that a smaller eye drop would be cheaper and more effective than the ones they bought.

Standing requires an actual injury to the plaintiffs, he said.

The fact that a seller doesn’t sell the product you want, or at the price you want to pay, isn’t an actionable injury, Posner said.

The Law Office of Richard S. Cornfeld and others represented the plaintiffs.

Hepler Broom LLC and Shook, Hardy & Bacon LLP represented Allergan.

To contact the reporter on this story: Julie A. Steinberg in Washington at jsteinberg@bna.com

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

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