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Class action suit alleging wasteful eye medication packaging reinstated


A federal appeals court has overturned a lower court ruling and reinstated a putative class action lawsuit in which plaintiffs charge that eye medication manufacturers and distributors packaged their product in a way that forces consumers to waste much of it.

Plaintiffs charged that the dropper tips for medication distributed by generic and brand-name manufacturers are too large, causing them to waste at least half of every drop of medication dispensed from any one of their product bottles, and putting them at risk of side effects because of the additional medication that is dispensed, according to Wednesday’s ruling by the 3rd U.S. Circuit Court of Appels in Philadelphia in Leonard Cottrell et al. v. Alcon Laboratories et al.

The U.S. District court in Trenton, New Jersey, dismissed the case on the basis plaintiffs had not pleaded an “injury in fact” necessary to confer standing to sue.

A divided three-judge panel reinstated the case. “Plaintiffs claim economic interests: interests in the money they had to spend on medication that was impossible for them to use,” said the ruling.  “These claims fit comfortably in categories of ‘legally protected interests’ readily recognized by federal courts,” said the ruling, citing an earlier case.

The plaintiffs also allege a concrete injury, said the ruling. They “do not simply allege that Defendants’ practices violated state consumer protection statues. They allege that those violations caused each of them tangible, economic harm.”

In addition, their alleged injuries were not merely conjectural or hypothetical, the ruling said. Plaintiffs “alleged financial harm has already occurred, it is not merely possible, or even probable,” said the majority opinion in reinstating the case.

The dissenting opinion states the majority’s approach “ignores both clear precedent from the Supreme Court and the complexities of pricing in the pharmaceutical industry.”