Judge Shoots Down Class Action Over Pricey Restasis Eye Drops

Judge dismisses class action lawsuit claiming Allergan overfilled Restasis vials in order to charge more for the dry-eye medicine.

Allergan USA Inc. has escaped a class action lawsuit accusing the company of overcharging consumers for its Restasis eye drops by overfilling the dispensers so that consumers are forced to purchase more Restasis then they can use.

On Wednesday, U.S. District Judge Audrey G. Fleissig threw out the Restasis class action lawsuit, ruling that the plaintiff failed to state a plausible theory as to why placing smaller amounts of the medicine in the dispenser would make it less expensive to consumers.

“Even assuming that less medication would produce a less expensive product for the consumer, the courts are not regulators of the fair market price of products,” Judge Fleissig wrote in her Jan. 29 ruling.

Restasis is a prescription ophthalmic medication supplied in vials; each of these units contains approximately 14 drops of medicine, with the recommended dosage being one drop administered twice a day. Consumers are told to dispose of the bottle immediately after their recommended dosing schedule is over, even if leftover medicine remains.

Missouri consumer Fancine Thompson filed the Restasis class action lawsuit in January 2013 and amended it in March, arguing that the defendant company set the price of the product based on the amount of medication per unit, and filled the units of Restasis with more medication than they knew the consumer could use in violation of the Missouri Merchandising Practices Act (MMPA).

Under the MMPA, it is essentially declared unlawful if any person uses false advertising, false pretense, false promise, or any kind of misrepresentation or omission of material fact in connection with a sale or advertisement of merchandise in any kind of commerce.

Several months later in July 2013, Allergan motioned to dismiss the class action, arguing that the plaintiff failed to state an actual legal claim, but was rather using the class action lawsuit to petition the company to change a part of their manufacturing process. Allergan argued that part of the reason they include excess medication in their units,is to make up for “imagined losses” of the product.  Additionally, the company argued that Thompson failed to allege personal injury or any other valid argument in her lawsuit.

Judge Flessig disagreed with Thompson’s MMPA claim, stating that smaller quantities would not necessarily make the product less expensive to consumers.

“[T]he allegation that including smaller quantities of medication in the Restasis vials would make it less expensive to consumers is without sufficient logical or factual foundation.  Plaintiff has therefore failed to meet the ascertainable loss requirement for stating a claim under the MMPA. Similarly, her claims for unjust enrichment and money had and received also fail.” Judge Fleissig wrote in the memorandum and order.

Flessig added that any plaintiff trying to use this policy, must show a loss of money or property from the alleged misrepresented advertisement.  Otherwise, the action cannot be taken under the MMPA.

The plaintiff is represented by Richard S. Cornfeld of the Law Office of Richard S. Cornfeld and by John G. Simon and Stephanie H. To of The Simon Law Firm PC.

The Restasis Class Action Lawsuit is Thompson v. Allergan USA Inc. et al., Case No. 4:13-cv-00030, in the United States District Court of Eastern Missouri.