United States District Court, S.D. Illinois
CHARLENE EIKE, SHIRLEY FISHER, JORDAN PITLER and ALAN RAYMOND, Plaintiffs,
ALLERGAN, INC., et al., Defendants.
AMENDED MEMORANDUM AND ORDER
M. YANDLE JUDGE.
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.
their First Amended Complaint (Doc. 44), the named
plaintiffs, Charlene Eike, Shirley Fisher, Jordan Pitler, and
Alan Raymond (“Plaintiffs”) allege that
Defendants Allergan, Inc., Allergan USA, Inc.,
Allergan Sales, Inc. (“Allergan”); Alcon
Laboratories, Inc., Alcon Research, Ltd., and Falcon
Pharmaceuticals, Ltd. (“Alcon”); 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).
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).
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,
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
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).
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.
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).
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).
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).
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)).
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).
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
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