The Madison County Record Jul. 26, 2016, 3:07pm


BENTON – U.S. District Judge Staci Yandle certified a class action on a claim that makers of eye drops for glaucoma patients design their droppers to waste fluid. 

On July 25, she ruled that four plaintiffs could represent Illinois and Missouri residents who used eye drops of Allergan, Alcon, Bausch and Lomb, Pfizer, Merck, and Prasco. 

“There are differences between plaintiffs, such as plaintiffs’ ages and varying treatment plans, but the core issue is whether the dispensers release unnecessarily large eye drops,” Yandle wrote. 

“The alleged injury, that the large drops have resulted in wastage of medication, remains the same for all four named plaintiffs and for the putative class as a whole.” 

John Simon of St. Louis and Mark Goldenberg of Edwardsville represent the plaintiffs, along with members of their firms. 

Simon filed the suit in 2012, for Charlene Eike, Shirley Fisher, Jordan Pitler, and Alan Raymond. 

Defendants moved to dismiss the action, and moved for a stay pending a decision on the motion to dismiss. 

Merck counsel Chris Schmidt argued for a stay at a hearing before Magistrate Judge Donald Wilkerson in 2013, on behalf of all defendants. 

“We are dealing with novel claims, claims that we are not aware of any court sanctioning, let alone any consumer bringing anywhere in the country,” Schmidt said. 

“Plaintiffs are seeking to force the defendants, who are regulated by the Food and Drug Administration, to change their manufacturing processes. 

“They are seeking damages for that excess waste to the extent they are able to calculate it.” 

He said plaintiffs didn’t plead any actual injury. 

“They have conceded that you can’t overdose the eye,” Schmidt said. 

Wilkerson ruled that neither the novelty of the theories nor the expense of discovery warranted a stay. 

“Defendants argue that hundreds if not thousands of hours of attorney and client time will be devoted to discovery in addition to time that will be spent litigating the scope of discovery,” Wilkerson wrote. 

“None of these points are particularly unique to this case.” 

He wrote that discovery for defendants as a group would be extensive, but there was no showing that the burden on each individual defendant would be onerous. 

District Judge David Herndon denied the motion to dismiss the action in 2014, finding plaintiffs plausibly pleaded actual damages. 

He wrote that they alleged actual damage as measured by the price of the portion of each drop in excess of 15 microliters. 

“At this stage of the litigation, the court finds this sufficient to survive review,” Herndon wrote. 

He wrote that plaintiffs premised their claims on representing classes of consumers who bought similar products from the companies. 

“They need not have used every prescription eye drop manufactured by every defendant,” he wrote. 

Defendants moved for reconsideration or an order allowing interlocutory appeal, but Herndon wouldn’t get a chance to consider the motion. 

The case passed to Yandle when she joined the court, and she denied the motion. 

This February, she set trial for December. 

Goldenberg entered his appearance in March, along with Kevin Green and Thomas Rosenfeld of his firm. 

On July 18, plaintiffs and defendants jointly moved to vacate the December trial date pending a ruling on class certification. 

Yandle delivered her decision a week later. 

As of July 26, she had not acted on the motion to postpone trial. 

A federal judge in New Jersey dismissed a similar class action in March. 

District Judge Freda Wolfson ruled that plaintiffs “failed to show that smaller-tipped bottles would be priced lower based solely on volume,” according to defense attorneys at Shook Hardy and Bacon . 

Wolfson further 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,” according to an article on the firm’s website.      

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