Earlier this year, the United States Court of Appeals for the Seventh Circuit refused to reconsider en banc its decision reversing certification of a class of glaucoma sufferers who claimed that eye drop containers dispense drops that are too large, forcing them to purchase eye drops more frequently. In so doing, the Seventh Circuit let stand a ruling in which Judge Richard Posner—aided by another of his now-infamous cat analogies—got frisky with the plaintiffs’ theory of liability, which he claimed was grounded “simply on dissatisfaction” with the medication.
The plaintiffs filed suit against six pharmaceutical companies, alleging that the eye drops the companies manufacture to treat glaucoma are accompanied by a dropper that dispenses more than 16 microliters with each drop, whereas the human eye cannot absorb more than 15 microliters at a time. As a result, the plaintiffs claimed, the class should be awarded damages because they had to buy more bottles of eye drops than they should have required.
In July 2016, Judge Staci Yandle of the United States District Court for the Southern District of Illinois certified eight classes of purchasers in Illinois and Missouri, concluding that the proposed classes demonstrated a number of common issues, including whether the dispensed drops are indeed larger than therapeutically indicated, whether it is feasible for the pharmaceutical companies to make droppers that dispense less medicine, and whether the larger drop size harmed class members economically.
The defendants asked the Seventh Circuit to decertify the class, arguing that the district court accepted “that a combination of conclusory assertions and speculation add up to an injury-in-fact supporting certification of statewide classes of consumers.” They noted that the “ideal” size of an eye drop varies considerably from patient to patient and whether the drop is “too large” cannot be determined on a classwide basis. The defendants also pointed out that the amount of medication dispensed in each drop can differ a great deal based upon factors including the temperature at which the medication is kept and how hard the patient squeezes the dropper. Finally, the drugmakers pointed out that among them, the named class members had used only 14 of the 33 eye drop varietals included in the class definition, and argued that they lacked standing to sue based upon the 19 remaining medications.
In response, the plaintiffs contended that it was the defendants who were speculating regarding therapeutic drop size, pointing out that they failed to produce a single study demonstrating that a smaller amount of medication would pose safety or efficacy concerns for a subset of patients. Moreover, the plaintiffs claimed, while there may be certain factors that affect drop size, the drops dispensed by the defendants’ bottles were “uniformly much larger than 15 microliters,” with some triple that size. Finally, the plaintiffs dismissed defendants’ standing argument, vehemently supporting Judge Yandle’s finding that while the named class members may not have used all 33 of the medications at issue, users of all of those medications were exposed to the same conduct.
Judge Posner, who once told The New Yorker magazine that, like his beloved cat, he is “cold, furtive, callous, snobbish, selfish, and playful, but with a streak of cruelty,” wrote a less-than-five-page opinion vacating certification in a decision that surely elicited additional adjectives from the plaintiffs and their attorneys. According to Judge Posner, given the absence of any allegation of collusion among the defendants, or safety concerns from larger eye drops, the case amounted to sour grapes by the plaintiffs about sticker shock, and that it was not the place of the judiciary to tell the companies how to manufacture their products. Judge Posner compared the plaintiffs’ protests to the purchaser of a new cat that turns out to be a picky eater:
Suppose the class members all happened to own pedigreed cats, and the breeders who had sold the cats to the class members had told them that as responsible cat owners they would have to feed the cats kibbles during the day and Fancy Feast at night and buy a fountain for each cat because cats prefer to drink out of a fountain (where gravity works for them) rather than out of a bowl (where gravity works against them) and they don’t like to share a fountain with another cat.
Judge Posner surmised that after a while, the cat food might get expensive, the fountain might break down, and the cat owners might become “dissatisfied.”
Yet would anyone think they could successfully sue the breeders? For what? The breeders had made no misrepresentations. Had a prospective buyer asked one of the breeders what the annual cost of maintaining the cat would be, the breeder would, let’s assume, have given him a realistic estimate. There would be disappointment in the example given, but no cause of action. It’s the same here.
In other words, even if a smaller amount of medication would be feasible, equally effective, and less expensive to patients, the consumers still received what they paid for and had no viable claim that could support class certification.
All eyes overflowing with medical drops will now shift to the Third Circuit, which is considering a case involving similar allegations in which the U.S. District Court for the District of New Jersey denied certification of a proposed class of glaucoma sufferers. Cottrell v. Alcon Labs., Inc., Case No. 16-2015 (3d Cir.).