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Eye drop makers request supreme court ruling

A proposed class action suit against eye drop manufacturers could be headed to the US Supreme Court (USSC), following a request by the major drug companies involved in the case.

The dispute relates to a class action brought before a federal appeals court in Philadelphia, Cottrell v. Alcon, in which the complainants have accused the pharmaceutical companies of producing bottles that dispense drops that are too large.

They argue that the wasted medicine associated from this practice unfairly makes them pay more to treat diseases, such as glaucoma, than if the bottles were designed to dispense smaller amounts.

According to AP, the drug companies involved in the case – which include Alcon, Valeant, Allergan, Bausch + Lomb, Pfizer and Merck – have argued that patients shouldn’t be able to sue in federal court, because the argument that 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.

"Allowing the lawsuit to proceed would open Pandora’s Box with regard to package design."
Kannon Shanmugam, company representative

The companies have also pointed out that the size of the drops has already been approved by the FDA, meaning redesigning any bottle would require further approval, possibly at the cost of consumers.

However, the main reason why the pharmaceutical companies petitioned to have the case reviewed by the USSC is because while the Philadelphia court is allowing the case to proceed, a federal court in Chicago had already thrown out an almost identical suit last year.

The USSC receives about 7,000 petitions a year and generally only hears around 1% of those cases, which means the odds of it reviewing the case are small. Despite this, Reuters reported that the USSC has often reviewed splits between federal circuit courts, and the defendants’ lawyers have argued that the case represents a constitutional concern: standing for class action plaintiffs suing over supposedly speculative injuries.

Mr Kannon Shanmugam, who is representing the companies’ appeal to the USSC, said allowing the lawsuit to proceed would open Pandora’s Box with regard to package design, arguing “the court of appeals’ approach could, for example, allow a consumer to represent a class of toothpaste users whose tubes of toothpaste did not allow every bit of toothpaste to be used.”

The plaintiffs’ case is based on research that shows at least half of every eye drop of medication goes to waste, and that they’re entitled to the full use of the entire amount. Such wastage could see an American glaucoma patient spending US$1,100 (AU$1,430) a year on medication that goes to waste.


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