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Eike v. Allergan Inc.

United States District Court, S.D. Illinois

August 15, 2016

ALLERGAN, INC., et al., Defendants.



         This matter comes before the Court on Plaintiffs’ Motion to Certify Class (Doc. 175) and Memorandum in Support (Doc. 176). Defendants responded in opposition (Docs. 186, 282, 286). For the following reasons, the Amended Motion for Class Certification is GRANTED.


         In their First Amended Complaint (Doc. 44), the named plaintiffs, Charlene Eike, Shirley Fisher, Jordan Pitler, and Alan Raymond (“Plaintiffs”) allege that Defendants[1] Allergan, Inc., Allergan USA, Inc., Allergan Sales, Inc. (“Allergan”); Alcon Laboratories, Inc., Alcon Research, Ltd., and Falcon Pharmaceuticals, Ltd. (“Alcon”)[2]; Bausch and Lomb Incorporated (“B&L”); Pfizer Inc. (“Pfizer”), Merck & Co., Inc., and Merck, Sharp & Dohme Corp., (“Merck”) (collectively, “Defendants”) violate the Illinois Consumer Fraud and Deceptive Business Practices Act, 815 ILCS 505/1, et seq. (“ICFA”) and the Missouri Merchandising Practices Act, Mo. Rev. State. § 407.010, et seq. (“MMPA”) by packaging and selling eye drops in plastic bottles which produce a drop that is too large for the eye, thereby creating wastage of medication and forcing the plaintiffs to spend more money on medication. The named Plaintiffs have used at least two medications that utilize the eye drop dispensers, for a minimum of ten years each (Docs. 44 & 176). Each named Plaintiff and the proposed class as a whole has used the medication to treat glaucoma (Docs. 44 & 176). Plaintiffs propose seven total classes, divided between Illinois and Missouri, and respective Defendants. Plaintiffs seek, inter alia, money damages and injunctive relief. (Doc. 44, p. 49).

         Plaintiffs have designated two expert witnesses, Dr. Alan Robin, an ophthalmologist, and Brian Kriegler, a statistician. Dr. Robin’s ultimate opinion is that “any drop size larger than an average of 5-15 µL is larger than the capacity of the eye and provides more medication than necessary…[i]ndeed, the literature indicates that larger drops are no more effective than drops of 15µL or even smaller.” (Doc. 176, Ex. B, ¶ 16). Brian Kriegler developed a proposed methodology to calculate the cost to the class attributed to allegedly wasted medicine due to excessive eye-drop sizes (Doc. 176, Ex. F, p. 27).

         Defendants have designated five experts: Dr. Janet Arrowsmith and Dr. David Lin are experts in the field of Federal Drug Administration regulation of prescription drugs; Dr. Jimmy Bartlett and Dr. Michael Belin are experts in eye care; and Dr. Steven Wiggins is a professor in economics. Drs. Arrowsmith, Belin and Lin opine that Defendants could not reduce drop sizes without prior approval from the FDA (Doc. 176, Ex’s GG, II, & JJ). Dr. Wiggins has submitted a report in which he disagrees with Brian Kriegler’s proposed methodology for calculating damages (Doc. 176, Ex. KK, ¶ 8). Dr. Bartlett’s ultimate opinion is that eye drops should not be reduced in size (Doc. 176, Ex. HH, ¶ 19).

         To obtain class certification under Federal Rule of Civil Procedure 23, a plaintiff must satisfy each requirement of Federal Rule of Civil Procedure 23(a)-numerosity, commonality, typicality, and adequacy of representation-and at least one subsection of Rule 23(b). See Harper v. Sheriff of Cook County, 581 F.3d 511, 513 (7th Cir. 2009). Plaintiff bears the burden of proving each disputed requirement by a preponderance of the evidence. Messner v. Northshore Univ. HealthSystem, 669 F.3d 802, 811 (7th Cir. 2012). “Failure to meet any of the Rule’s requirements precludes class certification.” Harper, 581 F.3d at 513 (quoting Arreola v. Godinez, 546 F.3d 788, 794 (7th Cir. 2008)). Satisfaction of these requirements, however, categorically entitles a plaintiff to pursue his or her claim as a class action. See Shady Grove Orthopedic Assocs., P.A. v. Allstate Ins., 559 U.S. 393, 398-88, 130 S.Ct. 1431 (2009). The Court has broad discretion to determine whether class certification is appropriate. Retired Chi. Police Ass'n v. City of Chi., 7 F.3d 584, 596 (7th Cir. 1993).

         In deciding a motion to certify class, the Court does not reach the merits of the case. See Eisen v. Carlisle v. Jacquelin, 417 U.S. 156, 178, 94 S.Ct. 2140 (1974) (“In determining the propriety of a class action, the question is not whether the plaintiff or plaintiffs have stated a cause of action or will prevail on the merits, but rather whether the requirements of Rule 23 are met.”). The Seventh Circuit has instructed that district courts should make “whatever factual and legal inquiries are necessary under Rule 23.” Szabo v. Bridgeport Mach., Inc., 249 F.3d 672, 676 (7th Cir. 2001).


         FRCP 23(a)(1)(a) requires that a proposed class be “so numerous that joinder of all members is impracticable.” Fed.R.Civ.P. 23(a)(1). In evaluating whether Rule 23(a)(1) is satisfied, a court is entitled to make common sense assumptions. Rawson v. Source Receivables Management, LLC, 289 F.R.D. 267, 269 (N.D. Ill. 2013). Here, Plaintiffs assert that “in light of the prevalence of glaucoma, the class is undoubtedly numerous.” (Doc. 176, p. 31). Defendants did not specifically dispute numerosity pursuant to Rule 23(a), but addressed it relative to superiority, which is discussed below. The Court finds that the proposed class meets the numerosity requirement based on the prevalence of glaucoma in Illinois and Missouri.


         A plaintiff must show questions of law or fact common to the class before a class may be certified. Fed.R.Civ.P. 23(a)(2). Courts, generally, give Rule 23(a)(2) a “highly permissive reading, ” requiring plaintiffs to show only that there is more than one issue of law or fact in common. Clay v. American Tobacco Co., 188 F.R.D. 483, 491 (S.D. Ill. July 9, 1999). “A common nucleus of operative fact is usually enough to satisfy the commonality requirement.” Rosario v. Livaditis, 963 F.2d 1013, 1017-18 (7th Cir. 1992).

         Class certification will not be defeated solely because there are some factual variations among the grievances of the class members. McManus v. Sturm Foods, Inc., 292 F.R.D. 606, 618 (S.D. Ill. 2013); see also Keele v. Wexler, 149 F.3d 589, 594 (7th Cir. 1998). A single common question will do. Wal-Mart Stores, Inc. v. Duke, 131 S.Ct. 2541, 2556. The “claims must depend upon a common contention of such a nature that is capable of classwide resolution-which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.” Wal-Mart Stores, Inc. v. Duke, 131 S.Ct. at 2545. Commonality questions may necessarily overlap with merit contentions. Id. Additionally, differences in damages amounts between members of the proposed class do not defeat commonality. In re IKO Roofing Shingle Products Liab. Litig., 757 F.3d 599, 602 (7th Cir. 2014).

         Here, Plaintiffs maintain that there are common issues of law and fact among the putative class members. While the central question is whether the drops are too large, there are several other questions common to the class: (a) whether the drops are too large; (b) whether they lead to wastage; (c) whether it is feasible for Defendants to make smaller drops; and (d) whether a drop size larger than 16ul has any therapeutic effect. The efficacy of the medication is not at issue. The common operative issue in this case is the size of the eye drops that are released from the eye-drop dispensers. There are differences among Plaintiffs, such as Plaintiffs’ ages and varying treatment plans; yet the core issue is whether the dispensers release unnecessarily large eye drops. The Court finds that commonality exists for purposes of Rule 23(a).


         Rule 23(a)(3) requires a court to determine whether the “claims or defenses of the representative parties are typical of the claims or defenses of the class.” Fed.R.Civ.P. 23(a)(3). “A plaintiff’s claim is typical if it arises from the same event or practice or course of conduct that gives rise to the claims of other class members and his or her claims are based on the same legal theory.” De La Fuente v. Stokely-Van Camp, Inc., 713 F.2d 225, 232 (7th Cir. 1983). The named representatives’ claims must have “the same essential characteristics as the claims of the class at large.” Oshana v. Coca-Cola Co., 472 F.3d 506, 514 (quoting De La Fuente v. Stokely-Van Camp, Inc., 713 F.2d 225, 232 (7th Cir. 1983)).

         The typicality requirement may be satisfied even if there are factual distinctions between the claims of the named plaintiffs and those of other class members. De La Fuente, 713 F.2d at 232. This requirement is closely related to commonality and is satisfied if the class representatives’ claims arise from the same practice or conduct as claims of proposed class members and are based on the same legal theory. Keele v. Wexler, 149 F.3d 589, 595 (7th Cir. 1998).

         In Butler v. Sears, Roebuck and Co., 727 F.3d 796, 800 (7th Cir. 2013), the defendants argued that different models of washing machines were differently defective, and therefore, the plaintiffs failed to satisfy commonality, typicality, and predominance. Despite the plaintiffs having purchased different washing machines, the Seventh Circuit declined to adopt the defendant’s reasoning and found a single, central, common issue of liability; i.e., whether the washing machines were defective. Id. at 801-02.

         Here, Defendants assert that the putative class representatives are atypical because there are significant differences between their claims and those of the absent class members. Specifically, the class representatives purchased and used only 14 of the 33 glaucoma medications at issue and therefore cannot show that claims pertaining to the specific medications they used are typical of class members who purchased and used the other 19 “widely varying glaucoma drugs.” (Doc. 186, p. 39). However, Plaintiffs allege that they were all exposed to the same course of conduct by Defendants-selling prescription eye medication in a bottle that delivers unnecessarily large eye drops. See In re IKO RoofingShingle Products Liability Litigation, 757 F.3d 599, 602 (7th Cir. 2014)) ((“[I]n a suit alleging a defect common to all instances of consumer ...

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