Allergan and others will appeal Yandle's eye drop certification order

By Ann Maher | Aug 8, 2016

Manufacturers of eye care solution will appeal a class certification order that U.S. District Judge Staci Yandle entered July 25 on behalf of glaucoma patients who claim eye droppers waste fluid.

Manufacturers of eye care solution will appeal a class certification order that U.S. District Judge Staci Yandle entered July 25 on behalf of glaucoma patients who claim eye droppers waste fluid.

Attorneys for Allergan, Alcon, Bausch and Lomb, Pfizer, Merck and Prasco, as well as for plaintiffs who seek to represent Illinois and Missouri residents, last week filed a joint motion to stay proceedings until the Seventh Circuit Court of Appeals resolves the defendants' petition for leave to appeal Yandle's order.


Edwardsville attorney Troy Bozarth, for Allergan and Bausch & Lomb, wrote for all parties that a stay would conserve resources and promote judicial economy.

"Proceeding in this action will require the parties to devote significant time and expense to developing the class notice, publishing the class notice, conducting merits discovery, and preparing for trial," he wrote. "Additionally, the Court would need to expend significant judicial resources on the same, all of which may be wasted depending on the outcome of the appeal."

Class counsel for plaintiffs had been under an Aug. 8 deadline to submit a proposed class notice; parties also were required to move for a revised scheduling order by Aug. 10.

Attorneys 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.

In Yandle's certification order, she wrote that there are differences among plaintiffs in terms of age and treatment plans, "but the core issue is whether the dispensers release unnecessarily large eye drops."

“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,” she wrote.

Magistrate Judge Donald Wilkerson, who manages pre-trial discovery, had denied an earlier defense motion to stay while a motion to dismiss was pending.

Merck attorney Chris Schmidt argued for the stay at a hearing before in 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.

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.

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