Eike et al v. Allergan, Inc. et al

Filing 282

ORDER - The Court GRANTS Plaintiffs' Motion to Certify Class (Doc. 175 ). Signed by Judge Staci M. Yandle on 7/25/2016. (hjg)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
CHARLENE EIKE, SHIRLEY FISHER,
JORDAN PITLER and ALAN RAYMOND,
Plaintiffs,

Case No. 12-cv-1141-SMY-DGW

vs.
ALLERGAN, INC., et al.,
Defendants.
MEMORANDUM AND ORDER
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). For the
following reasons, the Motion for Class Certification is GRANTED.
Background
In 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")1; Bausch and Lomb Incorporated ("B&L");
Pfizer Inc. ("Pfizer"), Merck & Co., Inc., Merck, Sharp & Dohme Corp., ("Merck"); and Prasco,
LLC ("Prasco") (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

1

The Court previously dismissed Sandoz, Inc. See Doc. 247.

1

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

2

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).
Numerosity
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

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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.
Commonality
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: whether the drops are too large; whether they lead to

4

wastage; whether it is feasible for Defendants to make smaller drops; and whether a drop size
larger than 16ul have 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 eyedrop dispensers. There are differences between Plaintiffs, such as Plaintiffs' ages and varying
treatment plans, but the core issue is whether the dispensers release unnecessarily large eye
drops. The Court finds that commonality exists for purposes of Rule 23(a).
Typicality
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

5

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: 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. ("in a suit alleging a defect common to all instances of
consumer product…the conduct does not differ." In re IKO RoofingShingle Products Liability
Litigation, 757 F.3d 599, 602 (7th Cir. 2014)). The named Plaintiffs have all encountered the
alleged conduct of Defendants. Thus, the Court finds that the claims of the plaintiffs are typical
of the claims of the class as whole.
Adequacy
The fourth and final requirement of Rule 23(a) is that the named plaintiffs and proposed
class counsel must fairly and adequately protect the interests of the class. FED. R. CIV. P.
23(a)(4). The adequacy determination requires the Court to inquire into whether (1) Plaintiffs'
counsel is qualified, experienced and generally able to conduct the proposed litigation, and (2)
the named plaintiff and the proposed class have antagonistic or conflicting interests. Rosario,
963 F.2d at 1018. In general, absent some showing to the contrary, adequacy of representation

6

will be presumed. Westefer, 2006 WL 2639972, at *6. Here, Defendants do not challenge the
adequacy of class counsel (see Doc. 186), and the court has no reason to question class counsels;
qualifications. Therefore, the Court will only analyze whether the named plaintiffs are adequate
representatives.
Defendants contend that the named plaintiffs cannot adequately represent the interests of
the class because they seek relief that is antagonistic to class members and "their incentive to
vigorously pursue this litigation is questionable" (Doc. 186, p. 34). Defendants specifically
argue that Plaintiffs' delay in filing this lawsuit "undermines the adequacy of the named
plaintiff[s] as…representative[s] of the entire class." (Doc. 186, quoting Randall v. Rolls-Royce
Corp., 637 F.3d 818, 824 (7th Cir. 2011).
Defendants seek have this Court apply a higher standard for class representation than
what exists under Rule 23. The role of class representative is nominal. Dechert v. Cadel Co., 333
F.3d 801, 802-03 (7th Cir. 2003) and the Court need only determine that the named plaintiffs
will adequately represent the class, without delving into the merits of the case. In this case, each
named plaintiff has been diagnosed with glaucoma, has purchased medications from two or more
of the Defendants, and has used the medications for at least a decade. The alleged injury, that
the large drops have resulted in wastage of medication remains the same for all four named
plaintiffs and for the putative class as a whole. Therefore, the Court finds that the four named
plaintiffs will adequately represent the class.
Rule 23(b)(3) Requirements
Because the Court is satisfied that Plaintiffs have satisfied the Rule 23(a) prerequisites, it
next examines whether a class action can be maintained pursuant to one of three subsections of
Rule 23(b). Plaintiffs seek class certification under Rule 23(b)(3). Rule 23(b)(3) requires the

7

Court to find that questions of law or fact common to class member predominate over any
questions affecting only individual members and that a class action is superior to other available
methods for fairly and efficiently adjudicating the controversy. FED. R. CIV. P. 23(b)(3).
Plaintiffs bring their claims under the consumer fraud statutes of Illinois and Missouri,
but rely upon the Federal Trade Commission's Unfairness Policy Statement ("FTC Statement") to
prove an unfair practice (Doc. 44). Therefore, the Court need only consider the FTC Statement
as it applies to the Missouri and Illinois statutes. Plaintiffs must also show that, under the ICFA
(815 ILCS 505/2), they suffered "actual damage" and under the MMPA (Mo. Rev. Stat. §
407.0102.1) they have suffered "an ascertainable loss." As such, there are only two law-related
variations to Plaintiffs’ claim, which do not predominate over the common questions of law;
namely, whether Defendants engaged in an unfair practice.
Common questions of fact can predominate if a common nucleus of operative facts and
issues underlies the claims brought by the proposed class. Messner v. Northshore University
HealthSystem, 669 F.3d 802, 815 (7th Cir. 2012). "If, to make a prima facie showing on a given
question, the members of a proposed class will need to present evidence that varies from member
to member, then it is an individual question. If the same evidence will suffice for each member
to make a prima facie showing, then it becomes a common question." Messner, 669 F.3d at 815,
quoting Blades v. Monsanto Co., 400 F.3d 562, 566 (8th Cir. 2005). Id. Individual questions,
however, need not be absent. Messner, 669 F.3d at 815. Rule 23(b)(3) contemplates individual
questions—the rule requires only that those individual questions not predominate over the
common questions affecting the class as a whole. Id. Further, the predominance requirement is
satisfied when "common questions represent a significant aspect of [a] case…and can be

8

resolved for all members of [a] class in a single adjudication." Messner, 669 F.3d at 815
(quotation omitted and alterations in original).
The

Seventh

Circuit

has

instructed

that

courts

should

"evaluate

the

evidence…pragmatically" in order to determine whether classwide resolution would
substantially advance the case." Suchanek, 764 F.3d at 761. The pragmatic review may warrant
the Court "tak[ing] a peek at the merits." Schleicher v. Wendt, 618 F.3d 679, 685 (7th Cir.
2010). The predominance analysis begins with the elements of the underlying action. Costello
v. BeavEx, Inc., 2016 WL 212797 (7th Cir., January 19, 2016). This requirement is "far more
demanding" than the commonality requirement of Rule 23(a). Amchem Products v. Windsor,
521 U.S. 591, 623-24. But, Plaintiffs "need not…prove that the predominating question will be
answered in their favor." Amgen Inc. v. Connecticut Ret. Plans & Trust Funds, 133 S. Ct. 1184,
1196 (2013). When adjudication of questions of liability common to the class will achieve
economies of time and expense, the predominance standard is generally satisfied. Comcast
Corp. v. Behrend, 133 S.Ct. 1426, 1436-37 (2013).
As previously mentioned, Plaintiffs have based their claims of unfairness upon the FTC
Statement (Doc. 44). The statement deems a practice as unfair if it "causes or is likely to cause
substantial injury to consumers which is not reasonably avoidable by consumers themselves and
not outweighed by countervailing benefits to consumers or to competition" (Doc. 44, par. 12223).2 Thus, under the ICFA, Plaintiffs must show that Defendants Allergan, Alcon, and Bausch
violated the ICFA in that they engaged in unfair acts or practices in the conduct of trade or
commerce directly or indirectly affecting the people of Illinois. 815 ILCS 505/2 (West 2014);
FTC Unfairness Policy Statement. The MMPA provides that the act, use or employment by any

2

This Court has previously held that Plaintiffs have adequately stated a claim pursuant to the FTC statement. See
Doc. 147.

9

person of any unfair practice in connection with the sale of any merchandise in trade or
commerce is an unlawful practice. Mo. Rev. Stat. § 407.0102.1.3
Defendants argue that whether they have engaged in an "unfair practice" as to each
putative class member under Illinois and Missouri law presents individual issues that overwhelm
any common issues (Doc. 186, p. 18).

The unfair practice alleged by Plaintiffs is that

Defendants sold eye drop medication in dispensers that emitted drops that were too large. That
is the central, common question of this class action lawsuit and it applies to each putative class
member.
Defendants also contend that Plaintiffs could have avoided any alleged injury simply by
using alternatives to eye drops. In other words, the decision by doctors to prescribe eye drops
rather than alternative therapies is an intervening act that breaks the causal connection and
requires individual analysis of each class members claim.

However, whether there are

alternatives to using eye drops is a common question that would apply to the entire class, not just
individual members.
Additionally, "[p]roximate cause is necessarily an individual issue and the need for
individual proof alone does not necessarily preclude class certification."

Pella Corp v.

Saltzman, 606 F.3d 391, 394 (7th Cir. 2010). In Pella Corp, the plaintiffs brought a class action
alleging that the window design of certain Pella windows resulted in wood rot. Id. The
defendants argued that too many individual variances between class members existed because
wood rots, "for many reasons other than window design, and is affected by specific conditions
such as improper installation." Id. The defendants argued that the plaintiffs could not satisfy the
predominance requirement because determining proximate cause required individual proof from

3

Both the IFCA and the MMPA have incorporated the FTC's Unfairness Policy Statement. See 815 ILCS 505/2;
Mo. Code Regs. Tit. 15, § 60-8.020.

10

each class member. Id. Here, Defendants also argue that proving proximate cause will require
individual proof that would predominate over common proof.

However, in this case, the

individual variances are minimal and not such that they would overcome the common questions.
Plaintiffs note that their claims can be summarized in four common questions: (1)
whether the eye drops should be 16 µl on average to avoid wastage of product, "in other words,
are drop sizes of 16 µl as effective and safe as existing drops," (2) whether existing average drop
sizes are larger than 16µl, (3) whether existing eye drops lead to wastage as a result, and (4)
whether it would have been feasible for defendants to have supplied drops of 16 µl (Doc 176, p.
42). They argue that these questions apply to the class as a whole and that the resolution of each
of these questions will either determine the outcome for the entire class.
Defendants counter that whether class members would receive a safe and effective dose
of medication with a 16 µl drop is an individualized issue that depends on the particular patient
and the particular medication the patient uses. According to the Bartlett report, redesigning the
droppers on all 33 products "would impact each of these medications differently, and would also
affect individual patients differently" (Doc. 176, Ex. HH, ¶ 19).
Of course, Plaintiffs respond to the assertions in the Bartlett report with their own expert
witness and report (see Doc. 176, p. 10). It is not the role of the Court to determine which expert
is more believable. Whether the drop size is too large is a common question and whether
decreasing the drop size for all of Defendants' products is feasible and safe is also a common
question. Even if each plaintiff applied the drops differently, it does not defeat Plaintiff's claim
that the drops are too large at the outset. Further, if it is determined that some, but not all,
plaintiffs would benefit from the status quo, then the entire class would fail.

11

Defendants next argue that determining damages for the class members would require
individualized analysis of each plaintiff's eye drop use, including the angle at which each
plaintiff applies the drops, the age of the plaintiff and the pressure the plaintiff uses when
applying the drops. Plaintiffs counter that although the amount of damages will vary among
class members, that issue does not outweigh the common issues in this case. The Court agrees.
"[T]he fact that damages are not identical across all class members should not preclude class
certification." Butler, 727 F.3d at 801.
In addition, Plaintiffs have provided a proposed method to determine damages for the
class which, they assert, can be applied to any class member (Doc. 176, Ex. F, ¶ 49). According
to Plaintiffs’ expert Brian Kriegler, to determine class-wide damages, one would calculate, from
Defendants' drop-size studies, the cost incurred by the class for wasted medication using either
the mean drop size, median drop size, or minimum drop size (Doc. 176, Ex. F, ¶ 49). One would
then calculate the percentage of the mean, median, or minimum average drop in excess of 16 µL
and multiply that by the amount paid at retail by the class (Doc. 176, Ex. F, ¶ 49). While the
number of bottles of eye drops that any one class member has purchased will vary, the basis of
damages is the same across the entire class and includes either the mean, median, or minimum of
the average the wasted drops (Doc. 176, Ex. F, ¶ 49). This damage model is based on the
common issue of whether the bigger drops lead to wastage (see Comcast Corp. v. Behrend, 133
S.Ct. 1426, 1433 (2013)). Whether the damages model is accurate, as Defendants claim it is not,
is a question that will be determined by the finder of fact. Accordingly, the variation in potential
damages among class members is not such that it predominates over the common issues
presented in this case.

12

Finally, the Court must determine whether a class action is the superior method for
efficiently adjudicating the matter. In making this determination, the Court looks to the class
members' interests in individually controlling their own separate actions, the extent of any
litigation concerning the controversy already in process, the level of desirability in concentrating
the litigation in this particular forum, and the likely difficulties in managing a class action. FED.
R. CIV. P. 23(b)(3)(A-D).

"Class certification is usually considered a superior method of

adjudicating claims involving standardized conduct, even if there are individual issues that exist
among class members…so long as those individual issues can be managed through bifurcated
hearings." Cicilline v. Jewel Food Stores, Inc., 542 F.Supp. 2d 831, 838 (N.D. Ill. 2008).
Defendants' only contention regarding the superiority requirement is that individualized
issues (such as damages) will make the class action unmanageable. There are 33 eye drop
medication dispensers at issue and Defendants believe that the Court "would, in effect, be
stepping into the FDA's shoes" by overseeing "what would amount to 33 clinical trials…" (Doc.
186, p. 33).

As the Court previously noted, individualized issues will not make the case

unmanageable because common issues will predominate.
"The policy at the very core of the class action mechanism is to overcome the problem
that small recoveries do not provide incentive for any individual to bring a solo action
prosecuting his or her rights." Amchem, 521 U.S. at 617, quoting Mace v. Van Ru Credit Corp.,
109 F.3d 338, 344 (1997). Because common issues of law and fact predominate and trying the
claims of the putative class members separately would result in a substantial repetition and
wasted resources, proceeding as a class action is the superior form of adjudication for this case.

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Having found the prerequisites and conditions satisfied, the Court hereby GRANTS
Plaintiffs' motion and CERTIFIES the following classes pursuant to Federal Rule of Civil
Procedure 23:
Allergan Illinois Class (Class Representative: Charlene Eike):
All persons who, in the State of Illinois, purchased prescription eye drops
manufactured and sold by Allergan in multi-dose dispensers for treatment of
glaucoma and/or reduction of elevated intraocular pressure, including
Alphagan P, Betagan, Combigan and Lumigan, within the period of
applicable statute of limitations of three years prior to the filing of this
lawsuit and up to the date of certification.

Allergan Missouri Class (Class Representatives: Jordan Pitler, Alan Raymond):
All persons who, in the State of Missouri, purchased prescription eye drops
manufactured and sold by Allergan in multi-dose dispensers for treatment of
glaucoma and/or reduction of elevated intraocular pressure, including
Alphagan P, Betagan, Combigan and Lumigan, within the period of
applicable statute of limitations of five years prior to the filing of this lawsuit
and up to the date of certification.
Alcon Illinois Class (Class Representatives: Charlene Eike, Shirley Fisher):
All persons who, in the State of Illinois, purchased prescription eye drops
manufactured and sold by Alcon in multi-dose dispensers for treatment of
glaucoma and/or reduction of elevated intraocular pressure, including Azopt,
Betoptic S, Iopidine, Simbrinza, Travatan, Travatan Z, Apraclonidine,
Betaxolol HCL, Brimonidine Tartrate, Carteolol HCL, Dorzolamide HCL,
Dorzolamide
HCL/Timolol
Maleate,
Latanoprost,
Levobunolol,
Metipranolol, Timolol Gel Forming Solution, and Timolol Maleate, within
the period of the statute of limitations of three years prior to the filing of this
lawsuit and up to the date of certification.
Alcon Missouri Class (Class Representatives: Jordan Pitler, Alan Raymond):
All persons who, in the State of Missouri, purchased prescription eye drops
manufactured and sold by Alcon in multi-dose dispensers for treatment of
glaucoma and/or reduction of elevated intraocular pressure, including Azopt,
Betoptic S, Iopidine, Simbrinza, Travatan, Travatan Z, Apraclonidine,
Betaxolol HCL, Brimonidine Tartrate, Carteolol HCL, Dorzolamide HCL,
14

Dorzolamide
HCL/Timolol
Maleate,
Latanoprost,
Levobunolol,
Metipranolol, Timolol Gel Forming Solution, and Timolol Maleate, within
the period of the statute of limitations of five years prior to the filing of this
lawsuit and up to the date of certification.

B&L Illinois Class (Class Representative: Shirley Fisher):
All persons who, in the State of Illinois, purchased prescription eye drops
manufactured and sold by Bausch and its predecessor(s) in multi-dose
dispensers for treatment of glaucoma and/or reduction of elevated
intraocular pressure, including Istalol, Brimonidine Tartrate, Dorzolamide
Hydrochloride, Latanoprost, Levobunolol HCL, Optipranolol, and Timolol
Maleate within the period of the applicable statute of limitations of three
years prior to the filing of this lawsuit and up to the date of certification.

B&L Missouri Class (Class Representative: Jordan Pitler):
All persons who, in the State of Missouri, purchased prescription eye drops
manufactured and sold by Bausch and its predecessor(s) in multi-dose
dispensers for treatment of glaucoma and/or reduction of elevated
intraocular pressure, including Istalol, Brimonidine Tartrate, Dorzolamide
Hydrochloride, Levobunolol HCL, Optipranolol, and Timolol Maleate within
the period of the applicable statute of limitations of five years prior to the
filing of this lawsuit and up to the date of certification.

Pfizer Missouri Class (Class Representative: Alan Raymond):
All persons who, in the State of Missouri, purchased prescription eye drops
manufactured and sold by Pfizer in multi-dose dispensers for treatment of
glaucoma and/or reduction of elevated intraocular pressure, including
Xalatan, within the period of the applicable statute of limitations of five years
prior to the filing of this lawsuit and up to the date of certification.

Merck Illinois Class (Class Representative: Shirley Fisher):
All persons who, in the State of Illinois, purchased prescription eye drops
manufactured and sold by Merck in multi-dose dispensers for treatment of
glaucoma and/or reduction of elevated intraocular pressure, including
Cosopt, Trusopt, Dorzolamide Hydrochloride/Timolol Maleate and
Dorzolamide Hydrochloride within the period of the applicable statute of
limitations of three years prior to the filing of this lawsuit and up to the date
of certification.
15

Prasco Illinois Class (Class Representative: Shirley Fisher):
All persons who, in the State of Illinois, purchased prescription eye drops
manufactured and sold by Merck in multi-dose dispensers for treatment of
glaucoma and/or reduction of elevated intraocular pressure, including
Dorzolamide
Hydrochloride/Timolol
Maleate
and
Dorzolamide
Hydrochloride within the period of the applicable statute of limitations of
three years prior to the filing of this lawsuit and up to the date of
certification.
Next, pursuant to Federal Rule of Civil Procedure 23(g), the Court must appoint class
counsel and in doing so, must consider the following: "the work counsel has done in identifying
or investigating potential claims in the action; counsel's experience in handling class actions,
other complex litigation, and the types of claims asserted in the action; counsel's knowledge of
the applicable law; and the resources that counsel will commit to representing the class." FED. R.
CIV. P. 23(g)(1)(A). The Court may also consider other matters "pertinent to counsel's ability to
fairly and adequately represent the interests of class" in making its appointment. FED. R. CIV. P.
23(g)(1)(B).
Plaintiffs' counsel meets the standards set forth in Rule 23(g). Both attorneys have
submitted firm resumes which indicate that they are knowledgeable in the applicable law (Doc.
176, Ex. BBB). Further, Counsels’ previous experience is outlined in the Motion for Class
Certification (Doc. 176, p. 36). Based on this information, the Court is satisfied that Plaintiffs'
Counsel will fairly and adequately represent the interests of the class. Accordingly, the Court
APPOINTS Richard S. Cornfeld and John G. Simon to serve as class counsel in this case.
Class counsel are ORDERED to prepare and submit to the Court, within fourteen (14)
days of the date of this Order, a proposed NOTICE to the class which meets the requirements set
forth in Federal Rule of Civil Procedure 23(c)(2)(B). Objections, if any, may be filed within
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seven (7) days of the submission of the proposed notice. Class members will be given sixty (60)
days from the Court's approval of the notice to opt out of the action. The notice shall include
specific instructions for how members may do so.

IT IS SO ORDERED.

DATE: July 25, 2016

s/ Staci M. Yandle
STACI M. YANDLE
DISTRICT JUDGE

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