Eye Drops Plaintiffs Get Relief on Appeal

Don't shed a tear for the plaintiffs in the wasted eye drops case.

Their putative class-action was dismissed for lack of standing, but the U.S. Third Circuit Court of Appeals reversed that decision in Cottrell v . Alcon Laboratories. The appeals court said the trial judge applied a too-narrow definition of injury.

The plaintiffs alleged eye drop bottles wasted their medicine. In other words, standing is in the eye of the bottle holder.

Wasted Drops

The defendants make and distribute generic prescription eye drops in bottles to treat medical conditions such as glaucoma. Users hold the bottles to dispense the medicine through a dropper tip into their eyes.

The plaintiffs sued because, they alleged, the dropper tips dispensed too much medicine at a time. Over a year, a user could waste $1,000 in medicine.

They filed their class action in New Jersey, citing consumer protection laws in New Jersey, California, Florida, Illinois, North Carolina and Texas. Plaintiffs alleged the defendants engaged in unfair or unconscionable trade practices.

A federal judge dismissed, saying the plaintiffs had not pleaded an injury in fact to confer standing. They appealed.

Unfair Practices

The Third Circuit said the plaintiffs had claimed "legally protected interests" sufficient for standing. They had to spend money on medication they couldn't use, and they sought money to compensate the loss.

"Plaintiffs' claimed interests arise from state consumer protection statutes that provide monetary relief to private individuals who are damaged by business practices that violate those statutes." the appeals court said. "These claims fit comfortably in categories of 'legally protected interests' readily recognized by federal courts."

The appellate panel acknowledged its decision departed from the reasoning in a similar eye medication case this year. In Eike v. Allergan, the U.S. Seventh Circuit Court of Appeals said the plaintiffs lacked standing because they had no cause of action for fraud under the consumer statutes.

"But," the Third Circuit said, "Plaintiffs claim that Defendants' practices were unfair and unconscionable, not deceptive or fraudulent."

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