Alcon and Allergan, sued over eye drops that are allegedly too big, seek dismissal

By John Breslin | Jun 14, 2018

ST. LOUIS (Legal Newsline) – The makers of prescription eye drops are asking a federal court to dismiss a class action that claims the containers dispense too much medicine into the eye.

ST. LOUIS (Legal Newsline) – The makers of prescription eye drops are asking a federal court to dismiss a class action that claims the containers dispense too much medicine into the eye.

Defendants Alcon Laboratories Inc., Allergan Inc., and others allege in their motion to dismiss that this case is similar to others filed by the same attorneys and sometimes the same plaintiffs. They filed a motion to dismiss in the U.S. District Court for the Eastern District of Missouri on June 1.

All lawsuits, according to the motion, allege unfairness "in the design of the defendants’ prescription eye drop containers," which the lawsuit claims "dispenses drops that exceed the capacity of the eye."

The plaintiffs in this action, Christine Green and Jordan Pitler, claim "unfair practice” under the Missouri Merchandising Practices Act (MMPA) because they paid for the "so-called 'wasted' medicine in each drop that is not absorbed by the eye," the motion states.  

Pitler was a plaintiff in a previously action dismissed by the U.S. Court of Appeals for the Seventh Circuit, according to the motion.

In their motion, the defendants argue that the claims are preempted by federal law because they are using the MMPA to force the two companies to change the design of the containers holding the eye drops, which, along with the medication, is approved by the U.S. Food and Drug Administration.

"The changes plaintiffs demand are 'major changes' requiring prior FDA approval," the companies state in their motion.

They further state the medications "have been used safely and effectively for years or decades to treat serious eye disorders like glaucoma," and that the plaintiffs are not arguing they are anything other than safe and useful.

"Plaintiffs also do not challenge the adequacy of FDA’s review and approval process" but still argue that the companies should not "sell these safe, effective, doctor-prescribed medications in their current, FDA-approved containers," they allege.

The companies are asking the court to dismiss the class action complaint for "failure to state a claim upon which relief can be granted."

The plaintiffs initially filed their complaint the St. Louis County Circuit Court in April.

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