Contact Lens Recall Plaintiff Didn't Prove Product Liability: Court

In December 2006, Steven Kallal started using CIBA-brand contact lenses that he received as a sample from his eye doctor. He bought some more and kept using them until May 2007, even though he experienced sharp pain in his eyes.

Unbeknownst to Kallal, CIBA found a flaw in the contact lenses in January 2007 that didn't let enough oxygen reach the cornea. They eventually recalled 11 million contact lenses.

This is a story about the limits of personal injury lawsuits.

Where's the Evidence?

Kallal waited two years to sue CIBA for negligence, strict products liability, and a breach of implied warranty. CIBA removed the case to federal court because of diversity and then asked the court to dismiss the case because Kallal never proved he used any of the recalled contact lenses. For one thing, the recalled contact lenses weren't manufactured in Kallal's (quite strong) prescription of -3.75. The district court agreed and dismissed the case.

But wait! Kallal appealed and has some more arguments. But he couldn't get past the undisputed fact that CIBA never shipped any of the affected lenses in that prescription to Rose Optical, his eye doctor. Kallal claimed that "the voluntary recall was so huge that the company could not possibly have known which lenses were defective." He also asked the court to infer that, because his lenses were manufactured from a plant in Indonesia, and the affected lenses were also manufactured in the same plant, every lens made there must be affected.

That's Quite a Leap

The Seventh Circuit wasn't going to go along with those thin inferences. The fact was that Kallal didn't show what defect his lenses had, so it wasn't possible to trace that defect back to the massive recall. Much of the rest of his evidence, if you could call it that, centered on casting doubt on CIBA's own evidence, asking the court to be "suspicious of records" showing that his type of lenses weren't part of the recall. "This is too vague to be useful," the Seventh Circuit said.

He also wanted more discovery, but apparently failed to file an affidavit explaining why he needed to depose CIBA's new head of distribution to grill him about the company's business records. Nor was it outside the district court's discretion to decide to end discovery, considering Kallal had apparently already deposed the old head of distribution.

And if you don't like any of that, here's one more: The Food, Drug, and Cosmetics Act might pre-empt Kallal's claims anyway. Federal law pre-empts state tort law as to Class III medical devices, which includes Kallal's contact lenses.

As it turns out, not all tort lawsuits with big recalls are winners. You need more evidence than a tenuous chain of inferences.

Related Resources:

• Eye Burns Linked to Misuse of Clear Care Contact Lens Cleaner (NBC News)
• Despite Horrific Accident, 10th Cir Finds No Products Liability (FindLaw's U.S. Tenth Circuit Blog)
• No Liability for Gun-Sale Website Armslist, but Should There Be? (FindLaw's U.S. Seventh Circuit Blog)
• 2 OxyElite Pro Lawsuits Filed After Recall (FindLaw's Injured)