Making a Federal Case Out of Eye Drop Dribble?

Eye drop users everywhere have had it happen. Tilt your head back, drip a drop in your eye, and part of that drop always seems to dribble down your cheek.

But, what most people see as an annoyance, some prescription drop users lawyers say is grounds for a huge class action lawsuit. Drug companies’ bottles dispense drops that are too large, leaving wasted medication running down their faces, they say. In those tears plaintiffs’ lawyers see lotto-size verdicts for consumer fraud. Good grief!

The drug companies have argued the patients shouldn’t be able to sue in federal court because their argument they would have paid less for treatment is based on a bottle that doesn’t exist and speculation about how it would affect their costs if it did. They point out that the size of their drops was approved by the Food and Drug Administration and redesigned bottles would require FDA approval. The cost of changes could be passed on to patients, possibly resulting in treatment that would cost more.

The federal courts haven’t seen eye to eye on whether patients should be able to sue. That’s why the drug makers are asking the Supreme Court to step in. A federal appeals court in Chicago last year threw out one lawsuit over drop size. But the federal appeals court in Philadelphia let the similar case now before the Supreme Court go forward. That kind of disagreement often tends to get the Supreme Court’s attention.

Judge Richard Posner, writing for the Seventh Circuit Court of Appeals in Chicago in dismissing the class action consumer fraud case against the drug companies, reasoned that:

You cannot sue a company and argue only — “it could do better by us” — which is all they are arguing. The fact that a seller does not sell the product that you want, or at the price you’d like to pay, is not an actionable injury; it is just a regret or disappointment — which is all we have here, the class having failed to allege “an invasion of a legally protected interest.”

Patients see the case differently. A person’s eye can only hold a certain amount of liquid, they say. And they point to research showing that drug makers’ drops come out of their bottles at a much larger size and that at least half of every drop of medication goes to waste. Patients say they’re entitled to the full use of the entire amount of liquid they purchase. In the tears of medicine running down their cheeks they envision a systemic consumer fraud worth millions.

In response, Judge Posner concludes that since the FDA has approved the packaging of the eye drops,

… this court cannot bypass the agency and make its own evaluation of the safety and efficacy of an unconventionally sized eye drop for treatment of glaucoma. Not that the class members are likely to get far with the FDA. They don’t want the agency to rescind its approval of the large drops — they don’t argue that the large drops are unsafe or ineffective. They just want the defendant companies to start manufacturing smaller drops. But the agency can’t force a private company to manufacture a product the company doesn’t want to make — all it can do is approve or disapprove drugs that a company does make.

And if this drop-size lawsuit can go forward, so too could other packaging design lawsuits, such as one by toothpaste users whose tubes of toothpaste do not allow every bit of toothpaste to be used or catsup users who pound the bottom of the bottle trying in vain to coax the last few drips of product out.

Letting the drop-size lawsuit go forward would allow always imaginative plaintiffs’ bar to explore other nation-wide consumer fraud cases premised on package designs that result in “forced product waste”. For example, a lawsuit against peanut butter producers who sell their wares in traditional jars, rather than novel new jars that unscrew at both ends (resulting in lost peanut butter).

Or consider a hairspray user’s suit against the manufacturer based on its spray pump directing product so that a portion is dispersed into the air, rather than all landing on the consumer’s head. Or, maybe a nation-wide class action consumer fraud case against the manufacturer of pump bottles of skin moisturizers where the pump doesn’t reach the last few ounces in the bottle.

We are a litigious, “over-lawyered” society in which our courts are burdened with volumes of frivolous cases that are based on annoyance, regret, or disappointment, not actionable injuries presenting justiciable controversies. I think most will agree that eye drop dribble is just that… a crying shame, but not the making of a federal lawsuit! Hopefully, the Supreme Court will agree and put an end to this nonsense.

(Mr. Skoning is a Chicago lawyer)

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