Class action filed over prescription eye drops; Plaintiffs say drop size leads to waste

Four Illinois and Missouri residents filed a federal lawsuit earlier this month against a dozen pharmaceutical companies that they claim engaged in an unfair and deceptive scheme to make more money off prescription eye drops.

Plaintiffs Charlene Eike, Shirley Fisher, Jordan Pitler and Alan Raymond brought their class action complaint Nov. 1 in the U.S. District Court in East St. Louis.

Eike lives in the Chicago suburbs, Fisher is from Granite City and Pitler and Raymond are Missouri residents.

The suit names several companies that distribute, market, manufacture, sell and research eye drop products as defendants, including Allergan, Alcon Laboratories, Bausch and Lomb, Pfizer, Prasco and Merck & Co.

The plaintiffs’ complaint alleges violations of Illinois’ Consumer Fraud Act and Missouri’s Merchandising Practices Act and focuses on the size of eye drops used in the defendants’ products. They contend that the matter in controversy exceeds $5 million and includes at least 100 class members.

The defendants, the suit contends, “separately engaged in an unfair and unscrupulous scheme … to increase its profits by selling prescription eye drops in a form that compels consumers to buy and spend money for expensive medication that inherently goes to waste.”

As of result of the alleged scheme, the plaintiffs assert that they and other consumers have been forced to buy more of defendants’ products than they should have.

Citing scientific studies and journal articles, including a few funded by some of the defendants, the plaintiffs contend there is no reason that eye drops should be larger than 15 uL, or microliters. The defendants’ products, the suit states, emit drops two to three times that size.

Those same studies, recommend an eye drop size between 5 and 15uL. Decreasing the size wouldn’t make the product less effective, but would simply reduce overflow, waste and cost of the product to the consumer, the suit states.

“Defendants, which rank among the most medically and scientifically sophisticated companies in the world, know full well that the basis of this lawsuit is true and well-founded,” the suit asserts. “Yet, defendants have persisted in their unlawful, unfair and unethical practices of selling the medicine in dispensers that emit much larger drops.”

The plaintiffs contend that “the amount of overpayment that consumers have been compelled to make because of these large drop sizes is huge.”

As an example, the suit points to a 2008 cost analysis study on glaucoma medications. The average drop size in defendant Allergan’s glaucoma drug, Alphagan, was 43 uL and the bottle held about 5.17 milliliters of medication, according to the suit.

If a glaucoma patient used the recommended dose of one drop in each eye three times a day, the suit asserts that the Allergan’s bottle of prescription eye drops would last 20 days.

Based on those estimates, the suit states that the patient would go through 18 bottles a year. At $90 a pop, the patient would spend about $1,600 a year on glaucoma eye drops, according to the suit.

“However, approximately 65% of the medication, the amount over 15 uL, would be wasted,” the plaintiffs contend. “The wasted medication would cost the patient approximately $1,067 a year.”

The suit seeks certification of nine different classes, which are broken down by the consumer’s place of residence and the company that manufactured or sold the eye drops they used.

The case is No. 3:12-cv-01141-DRH-DGW.

The plaintiffs are represented by St. Louis attorneys Richard Cornfeld, John G. Simon and Stephanie H. To.

As of Tuesday, no one had entered an appearance on behalf of the defendants.