COTTRELL et al v. ALCON LABORATORIES, INC. et al

Filing 107

OPINION filed. Signed by Judge Freda L. Wolfson on 3/24/2016. (eaj)

*NOT FOR PUBLICATION*
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
_______________________________
:
LENOARD COTTRELL, et al.,
:
Civ. Action No.: 14-5859(FLW)
:
Plaintiffs, :
:
v.
:
:
OPINION
ALCON LABORATORIES, INC.,
:
et al.,
:
:
Defendants. :
_______________________________:
WOLFSON, District Judge:
For lack of standing, the Court previously dismissed this
putative consumer class action, comprised of in- and out-of-state
plaintiffs 1 accusing defendant pharmaceutical manufacturers and
distributors 2 of engaging in unfair and illegal business practices.

These plaintiffs include: Leonard Cottrell, Sandra Henon,
William Reeves, George Herman, Simon Nazzal, Carol Freburger, Jack
Liggett, Patricia Bough, Mack Brown, Dolores Gillespie, Deborah
Harrington,
Robert
Ingino,
Edward
Rogers,
Jr.,
Deborah
Rusignulolo, Dorothy Stokes, Josephine Troccoli, Hurie Whitfield,
Thomas Layloff, Carolyn Tanner, Patsy Tate, John Sutton, Jesus
Renteria, Glendelia Franco and Nadine Lampkin (collectively,
“Plaintiffs”).
1

Plaintiffs name as defendants both brand-name and generic
pharmaceutical manufacturers and their distributors.
The brand
name companies include: Alcon Laboratories, Inc., Alcon Research,
Ltd., Allergan, Inc., Allergan USA, Inc., Allergan Sales, LLC,
Pfizer Inc., Valeant Pharmaceuticals International, Inc., Bausch
& Lomb, Inc., Aton Pharma, Inc., Merck & Co., Inc., and Merck,
Sharpe & Dohme Corp. (collectively, the “Brand Name Defendants”).
The generic companies are Falcon Pharmaceuticals, Ltd., Sandoz
Inc., Prasco LLC, Akorn, Inc. (collectively, the “Generic
2

1

See Cottrell v. Alcon Labs, Inc., No. 14-5859, 2015 U.S Dist. LEXIS
81830

(D.N.J.

Jun.

24,

2015).

However,

the

Court

provided

Plaintiffs an opportunity to amend their Complaint to cure the
deficiencies as to standing. In the instant matter, the Generic
and Brand Name Defendants separately move once again to dismiss
the Amended Complaint, challenging, inter alia, Plaintiffs’ new
theory of Article III standing.

Because the Court finds that

Plaintiffs’

better

amendments

fare

no

than

their

original

allegations, for the reasons set forth here, Plaintiffs’ Amended
Complaint is dismissed for want of standing.
BACKGROUND and PROCEDURAL HISTORY
Because the relevant facts of this case were recounted in
this Court’s previous Opinion, to promote economy, they will be
incorporated here.

To summarize the alleged facts, Defendants are

makers and distributors of various FDA-approved prescription eye
drop medications.

See Am. Compl., ¶ 1.

These medications are

sold as fluid, in a given volume, in plastic bottles.
Plaintiffs

allege

that

Defendants

set

the

price

Id. at ¶ 4.
for

these

medications without “stating how many doses are contained in the
bottles or how many days they will last.”
As

a

practices,

part

of

the

Plaintiffs

Defendants”).
“Defendants.”

alleged

aver

that

illegal

Id.
and

Defendants

unfair

have

business

deliberately

All defendants will be collectively referred to as
2

designed and manufactured the tips of the bottles to dispense
larger than necessary drops of medication, in an effort to compel
consumers, like Plaintiffs, “to pay for much more medication than
the users of those medications needed.”
connection,

Plaintiffs

allege

that

the

Id. at ¶ 1.
large

tips

In that
lead

to

dispensing excess fluid from the bottle that “cannot be used, is
entirely wasted, provides no pharmaceutical benefit, and is often
harmful.”

Id. at ¶ 5.

Previously,

the

Court

dismissed

complaint based on a lack of standing.

Plaintiff’s

original

In that Opinion, I rejected

Plaintiffs’ theory that they were injured when Plaintiffs were
precluded from using the wasted eye drops, because, absent any
allegation that consumers were promised a specific number of doses
or drops and that they failed to receive those amounts, Plaintiffs’
theory of loss was too conjectural.
In their Amended Complaint, to be clear, Plaintiffs are not
complaining of physical injuries from the use of these eye drops,
but rather, Plaintiffs theorize that if the tips were made smaller,
Plaintiffs would necessarily be able to use the wasted drops, and
that would produce a cost savings to Plaintiffs.

In that regard,

Plaintiffs premise their standing on the “invasion of [a] legally
protected interest,” that is, “the practice of Defendants in
selling their products in a form that compelled Plaintiffs to waste
large quantities of medication that were not useful for treatment
3

of their disease.”
would

personally

Id. at ¶ 175.
benefit

from

Plaintiffs aver that that they
a

court

order

“requiring

that

Defendants reimburse them for the amount they spent on the notuseful amounts of medication.” Id. Alternatively, as to standing,
Plaintiffs allege that their therapy would have cost less if their
eye drops had been smaller.”

Id. at ¶ 178.

In support of their theories of standing, Plaintiffs included
various scientific literature opining that 1) a smaller drop volume
would provide patients with the maximum therapeutic result; and
correspondingly, 2) smaller drop sizes would lead to economic
benefits, i.e., cost savings.
188, 196, 200.

See Am. Compl., ¶¶ 179, 183, 185,

For example, one article stated “smaller drops

would be preferable to minimize systemic exposure and spilled or
wasted medication.

Obviously, a smaller drop size would mean that

more doses could be dispensed form each bottle of medication,
providing cost savings to patients and managed care providers.”
Id. at ¶ 200.
Plaintiffs also included charts that set forth the amount
that

each

of

the

named

Plaintiffs

spent

on

purchasing

the

medication, the amount of medication in milliliter, the alleged
wasted portion of the drop, and, allegedly, the amount of money
spent on the wasted portion.

See Id. at ¶¶ 225-231.

To calculate

the money spent on the wasted portion, it appears from the charts
that Plaintiffs simply divided the purchase price by the amount of
4

medication, and then multiplied that number by the amount of the
alleged wasted portion of the drop.
In their Amended Complaint, Plaintiffs assert twenty-three
causes of action against Defendants.

Plaintiffs seek to bring

these claims individually, and on behalf of classes of consumers
and third-party payors who have paid all or part of the purchase
prices

of

prescription

Defendants.

More

eye

drops

specifically,

each

manufactured
of

the

and

named

sold

by

plaintiffs

asserts consumer fraud related claims applicable in the state in
which he/she

resides.

Those

state

laws

include:

New

Jersey

Consumer Fraud Act, California Unfair Competition Law, Florida
Deceptive and Unfair Trade Practices Act, Illinois Consumer Fraud
Act, North Carolina Unfair and Deceptive Trade Practices Act and
Texas Deceptive Trade Practices Act.
On

these

current

motions,

the

Brand

Name

and

Generic

Defendants move separately to dismiss all of Plaintiffs’ claims
based on standing, preemption and failure to state a claim. 3

As I have stated in my previous Opinion, to date, similar
claims against Defendants have been brought in three other federal
jurisdictions: Florida, Missouri, and Illinois.
In the Florida
action, Freburger v. Alcon Labs., No. 13-24446 (S.D. Fla.),
plaintiffs voluntarily dismissed the lawsuit before oral argument
on a pending motion to dismiss.
In the Illinois case, Eike v.
Allergan, Inc., No. 12-1141 (S.D. Ill.), the court there denied
defendants’ motion to dismiss based on similar grounds to those
asserted here. However, the district court in the Eastern District
of Missouri dismissed plaintiffs’ claims on identical arguments
raised by Defendants in this matter. See Thompson v. Allergan USA,
Inc., 993 F. Supp. 2d 1007 (E.D. Mo. 2014).
3

5

Because I find that Plaintiffs have failed to cure their standing
requirements, I will confine my discussion only to that issue.
And, because standing is dispositive of this case, I am deprived
of jurisdiction to hear the case on its merits.

See Finkelman v.

National Football League, 810 F.3d 187, 193 (3d Cir. 2016) (“[a]
federal court's obligation to assure itself that it has subject
matter jurisdiction over a claim is antecedent to its power to
reach the merits of that claim.”)(citations omitted).
DISCUSSION
I.

Standing
I will reiterate my previous recitation of the law with

regard to standing.

Article III of the Constitution limits the

scope of the federal judicial power to the adjudication of "cases"
or "controversies." U.

S. Const. art. III, § 2.

This “bedrock

requirement,” see Valley Forge Christian Coll. v. Ams. United for
Separation of Church & State, Inc., 454 U.S. 464, 471 (1982),
protects the system of separation of powers and respect for the
coequal branches by restricting the province of the judiciary to
"decid[ing] on the rights of individuals." Marbury v. Madison, 5
U.S. 137 (1803). Indeed, “‘[n]o principle is more fundamental to
the judiciary's proper role in our system of government than the
constitutional limitation of federal-court jurisdiction to actual
cases or controversies.’” Raines v. Byrd, 521 U.S. 811, 818 (1997)

6

(quoting Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 37
(1976)).
Courts

have

developed

several

justicability

doctrines

to

enforce the case-or-controversy requirement, and “perhaps the most
important of these doctrines” is the requirement that “a litigant
have ‘standing’ to invoke the power of a federal court.”

In re

Schering-Plough Corp. Intron/Temodar Consumer Class Action, 678
F.3d 235, 244 (3d Cir. 2012)(quoting Allen v. Wright, 468 U.S.
737, 750 (1984)). The seminal standing question is “whether the
plaintiff has alleged such a personal stake in the outcome of the
controversy as to warrant his [or her] invocation of federal-court
jurisdiction and to justify exercise of the court's remedial powers
on his [or her] behalf.”

Id. (internal quotations and citations

omitted).
To establish Article III standing, a plaintiff bears the
burden of sufficiently alleging three elements: 1) an injury-infact; (2) a sufficient causal connection between the injury and
the conduct complained of; and 3) a likelihood that the injury
will be redressed by a favorable decision.

Finkelman, 810 F.3d at

193.
First, the plaintiff must have suffered an injury in fact—an
invasion of a legally protected interest which is (a) concrete and
particularized and (b) actual or imminent, not conjectural or
hypothetical.

Lujan v. Defenders of Wildlife, 504 U.S. 555, 5607

61

(1992)

omitted).

(internal

quotations,

alterations,

and

citations

In addressing this element, the Third Circuit recently

stressed that “to be concrete, an injury must be real, or distinct
and palpable, as opposed to merely abstract.”
at 193 (citations and quotations omitted).

Finkelman, 810 F.3d

To be particularized,

“an injury must affect the plaintiff in a personal and individual
way.”

Id.

in-fact

In that regard, “Plaintiffs do not allege an injury-

when

they

speculation.”

rely

on

a

chain

of

contingencies

or

mere

Id.

Second, there must be a causal connection between the injury
and the conduct complained of -- the injury has to be fairly
traceable to the challenged action of the defendant, and not the
result of the independent action of some third party not before
the court.

Lujan, 504 U.S. at 560-61.

This requirement is “akin

to but-for causation in tort and may be satisfied even where the
conduct in question might not have been a proximate cause of the
harm, i.e., indirect causal relationship.

Finkelman, 810 F.3d at

193. Finally, it must be likely, as opposed to merely speculative,
that the injury will be redressed by a favorable decision.

Lujan,

504 U.S. at 561.
Of these three elements, the Third Circuit has advised that
“the injury-in-fact element is often determinative.”

Toll Bros.,

Inc. v. Twp. of Readington, 555 F.3d 131, 138 (3d Cir. 2009).
Hence, it bears repeating that the complained-of injury must not
8

be abstract or subjective. See Id.; Laird v. Tatum, 408 U.S. 1,
13-14 (1972). Allegations of a potential future injury, or the
mere possibility of a future injury, will not establish standing.
See Whitmore v. Arkansas, 495 U.S. 149, 158 (1990); Employer's
Ass'n of New Jersey v. New Jersey, 601 F. Supp. 232, 238 (D.N.J.
2003), aff'd 774 F.2d 1151 (3d Cir. 1985). While economic injury
is one of the paradigmatic forms of standing, see Danvers Motor
Co., Inc. v. Ford Motor Co., 432 F.3d 286, 291 (3d Cir. 2005), a
demand for damages, by itself, will not establish an injury-infact. See Rivera v. Wyeth-Ayerst, 283 F.3d 315, 320 (5th Cir.
2002); Koronthaly v. L'Oreal USA, Inc., No. 07-5588, 2008 U.S.
Dist. LEXIS 59024, at *13 (D.N.J. Jul. 29, 2008).
Moreover, “the 'injury-in-fact' test requires more than an
injury to a cognizable interest. It requires that the party seeking
review be himself [or herself] among the injured." Id. at 563
(quoting Sierra Club v. Morton, 405 U.S. 727, 734-35 (1972)). The
injury must also be "an invasion of a legally protected interest."
Id. at 560.

In other words, the injury-in-fact requirement exists

to assure that litigants have a “personal stake” in the litigation.
See The Pitt News v. Fisher, 215 F.3d 354, 360 (3d Cir. 2000). By
ensuring that litigants present actual cases and controversies,
courts can keep the judicial branch from encroaching on legislative
prerogatives, thereby preserving the separation of powers. See

9

Valley Forge v. Americans United for Separation of Church and
State, 454 U.S. 464, 473-74 (1982).
“[T]he standing inquiry requires careful judicial examination
of a complaint's allegations to ascertain whether the particular
plaintiff is entitled to an adjudication of the particular claims
asserted." Allen, 468 U.S. at 752.

In that regard, at the pleading

stage, "[a]lthough general factual allegations of injury resulting
from the defendant's conduct may suffice, the complaint must still
'clearly and specifically set forth facts sufficient to satisfy'
Article III.”

Reilly v. Ceridian Corp., 664 F.3d 38, 41 (3d Cir.

2011) (quoting Lujan, 504 U.S. at 561); Whitmore, 495 U.S. at 155;
see, e.g., Anjelino v. N.Y. Times Co., 200 F.3d 73, 88 (3d Cir.
2000) ("Standing is established at the pleading stage by setting
forth specific facts that indicate that the party has been injured
in fact or that injury is imminent, that the challenged action is
causally connected to the actual or imminent injury, and that the
injury may be redressed by the cause of action.").
In assessing the sufficiency of the plaintiff’s allegations
related to standing, the Third Circuit has summed up the process:
First, we "tak[e] note of the elements a plaintiff must
plead to state a claim"—here, the three elements of
Article III standing. Second, we eliminate from
consideration any allegations that, "because they are no
more than conclusions, are not entitled to the
assumption of truth." Third, "where there are wellpleaded factual allegations, [we] assume their veracity
and then determine whether they plausibly" establish the
prerequisites of standing. In conducting this analysis,
10

we are mindful of the Supreme Court's teaching that all
aspects of a complaint must rest on "well-pleaded
factual
allegations"
and
not
"mere
conclusory
statements." Thus, to survive a motion to dismiss for
lack of standing, a plaintiff "must allege facts that
affirmatively and plausibly suggest that it has standing
to sue."
Finkelman, 810 F.3d at 194 (citations omitted).

To be sure, the

plaintiff cannot rely on assertions that are merely “speculative
or conjectural.”
A.
In

Id.

Plaintiffs’ Pricing Theory
Plaintiffs’

original

complaint,

they

allege

that

if

Defendants made the tips of the dispensers smaller, the cost of
the medications would decrease, thereby producing a cost savings
to

consumers.

I

rejected

this

theory

as

hypothetical

and

conjectural, because Plaintiffs failed to allege any bases for
their

assertion

that

Defendants

would

price

“smaller-tipped”

bottles less expensively than their current version.
On their second attempt to establish standing, Plaintiffs did
not abandon this theory, but rather, they devote multiple pages of
their Amended Complaint to citing various articles and studies
that express those authors’ opinions regarding the size of the
drop volume.

See Am. Compl., ¶¶ 178-216.

Indeed, according to

those articles, from a therapeutic stand point, smaller drop sizes
would be more beneficial to the patients.

But, it appears these

articles go on to opine on the economic effects of the decreased
drop sizes; that is, lower costs.
11

However, reliance on these

articles does not cure the speculative nature of Plaintiffs’
pricing theory.
While it is difficult — from the allegations — for the Court
to discern the methodology from which these articles base their
conclusion regarding pricing, one of the articles Plaintiffs cite,
however, provides some insight:
The economic impact of using a smaller drop may be
illustrated by Propine 0.1%. An average bottle labeled
15.0 ml actually contained an average of 15.5 ml with a
drop volume determined to be 39.8 µl. The average bottle
yielded 389 eyedrops, sufficient for 13.9 weeks of
therapy (both eyes, twice daily use) . . . . If the
eyedrops could be reduced to 15 µl . . . the average
bottle would yield 1,0333 drops, sufficient for 36.9
weeks of therapy . . . . Alteration of eyedrop delivery
systems and alteration of the medication’s physical
properties to produce smaller drops could greatly
diminish the cost of topical glaucoma therapy . . . .
Am. Compl., ¶ 185.

It appears, simply, that the author assumes as

true that manufacturers of eye drops would price their medication
solely based on the volume of the fluid contained in the bottles.
That same assumption underlies Plaintiff’s own theory, which is
reflected in Plaintiffs’ charts.
On the other hand, some articles are not as unequivocal; for
example, in ¶ 192 of the Amended Complaint, Plaintiff relies on an
article entitled, Cost Consideration of the New Fixed Combinations
for Glaucoma Medical Therapy, which only suggests that the “[f]inal
cost of therapy may be based on several factors beyond that of the
retail price and include the drop size and the amount of drops per

12

bottle.”
(“[m]any

Am. Compl, ¶ 192 (emphasis added); see also § 199
factors

influence

the

daily

cost

of

therapy

for

eyedrops.”).
Additionally, the remaining articles to which Plaintiff cite,
state in passing and conclusory terms that smaller drop volume
would likely produce lower costs.

See, e.g., Id. at ¶ 179 (“[a]n

important benefit of using a smaller instilled volume, in addition
to improved drug activity and lower cost, is a potential decrease
in side effects from ophthalmic drugs.”); ¶ 183 (“Drop size and
method of delivery are also important from an economic standpoint
since tips that deliver large or multiple drops increase costs.”);
¶ 188 (“From a biopharmaceutical and economic point of view,
however, smaller volumes . . . should be instilled.”); ¶ 194 (“it
has been suggested that the decrease in drop size . . . would
reduce the rate of drug loss . . . and, in addition, the cost of
therapy.”); ¶ 196 (same); and ¶ 200 (same).
Putting aside the fact that some of these articles conflict
as to how they arrive at their opinions on costs, the main point
to take away from Plaintiffs’ allegations based on the articles is
that

the

Defendants

authors

assume

replace

their

—

just

as

bottles

medications would somehow cost less.

Plaintiffs
with

do

smaller

—

that

tips,

if
the

The flaw in relying on these

opinions is that they do not specifically address or discuss
Defendants’ pricing model as to the ophthalmic medications at
13

issue.

Rather,

Plaintiffs

and

these

authors

resort

to

hypothesizing what manufactures would do if tip dispensers were
made smaller.

Indeed, Plaintiffs concede as much:

Plaintiff’s

theory of pricing is based on “a comparison to a hypothetical world
in which Defendants might have produced smaller drops.”
Compl., ¶ 176.

Am.

Plaintiffs have not pled any basis for alleging

that the way Defendants price their products will take into account
the drop sizes.

This is the very type of speculative pleading

that the Third Circuit has recently cautioned against.
In Finkelman, one of the plaintiffs purchased a Super Bowl
ticket for an allegedly inflated price on the ticket resale market.
Finkelman, 810 F.3d at 190-91.

As a result, that plaintiff sued

the National Football League (“NFL”) under New Jersey’s Consumer
Fraud Act for a refund of the cost in excess of the printed ticket
price.

Id. at 190.

Plaintiff’s cause of action was premised on

the NFL’s practice of withholding tickets.

In that connection, as

to standing, Plaintiff reasoned that such a practice reduced the
supply of tickets and inflated ticket resale price, thereby causing
him injury.
The Third Circuit, in the context of a motion to dismiss,
found that the plaintiff’s allegations were not sufficient to meet
standing requirements.

First, the Third Circuit found that the

alleged increased price that the plaintiff paid on the resale
market was based on the plaintiff’s “basic” assumption that a
14

“reduction in supply will cause prices to rise.”
(citations omitted).

Id. at 199

However, the court explained that there may

be other factors that have caused the prices to inflate: “while it
might be the case that the NFL’s withholding increased ticket
prices on the resale market, it might also be the case that it had
no effect on the resale market.”

Id. at 200.

To state the problem

succinctly, courts “have no way of knowing whether the NFL’s
withholding of tickets would have had the effect of increasing or
decreasing prices on the secondary market.

[Courts] can only

speculate – and speculation is not enough to sustain Article III
standing.”

Id. The Third Circuit further commented that, although

the plaintiff’s theory of standing is based on an application of
a “basic economic logic,” that logic, however, is premised on his
supposition.

Id. at 201.

In fact, the Third Circuit concluded

that “[i]t [was] pure conjecture about what the ticket resale
market might have looked like if the NFL had sold its tickets
differently.”

Id.

The Third Circuit’s advisement is well taken by this Court.
Like their original complaint, Plaintiffs’ newly revised pleadings
have not offered any facts — other than their speculation — that
the pricing of a hypothetical bottle design with smaller dispensing
tips would be based on the volume of fluids.

And, indeed, just

like the type of allegations made by the plaintiff in Finkelman,
Plaintiffs, here, premise their theory on the “basic principle”
15

that

pricing

is

solely

based

on

volume.

The

articles

that

Plaintiffs cite rely on that same principle, and there is no
indication in those articles that any of the defendants would
manufacture products that dispense fewer eye drops at a less
expensive price.

Importantly, it appears that all the studies on

which Plaintiffs rely examine the medical aspect of the drop volume
relating to ophthalmic medicines, not on any economic aspects of
how manufacturers of those medicines price their products. Indeed,
Plaintiffs have not identified any of these authors to be experts
on such economic issues.

Thus, while volume may be a pricing

factor — just as some of the articles opined — this Court has no
way of knowing whether Defendants would price their products in
such a way, particularly since the pricing of pharmaceuticals is
complex and multi-factored.

Cf. Fulgenzi v. PLIVA, Inc., 711 F.3d

578, 585 (6th Cir. 2013); Astra USA, Inc. v. Santa Clara County,
563 U.S. 110, 115 (2011).

Therefore, the Court cannot not credit

Plaintiffs’ bald assertions that Defendants would base the prices
of their products on the volume of fluids as the determinative
factor, or a factor at all. 4 Indeed, “Article III injuries require

4

Finally, in an effort to support their pricing theory,
specifically with respect to defendant Alcon, Plaintiffs included
allegations regarding conversations Alcon’s expert, Dr. Alan Robin
allegedly had with other Alcon marketing executives in the 1990s.
Am. Compl., ¶¶ 210-216.
While Plaintiffs alleged the same
conversations in the original complaint, and the Court rejected as
conclusory, Plaintiffs included additional facts that these
executives told the expert that Alcon was unwilling to reduce drop
16

a firmer foundation.”

Finkelman, 810 F.3d at 201; Dominguez v.

UAL Corp., 666 F.3d 1359, 1364 (D.C. Cir. 2012)(finding that the
plaintiffs had no Article III standing when their theory concerning
airline tickets required “pil[ing] speculation atop speculation”
as to how the tickets would be priced in the future); Carter v.
Alcon Labs, Inc., No. 13-997, 2014 U.S. Dist. LEXIS 32381, at *1213 (E.D. Mo. Mar. 13, 2014)("even if Defendants sold bottles with
less medication, Plaintiff has not suggested there is anything to
preclude them from charging what they now charge for the bottles
currently available for purchase."). 5
B.

Reimbursement of Costs

The

reimbursement

theory

that

previously rejected by this Court.

Plaintiffs

propose

was

In the Amended Complaint,

Plaintiffs reiterate that they have suffered a concrete injury
because they “did not receive the full use and therapeutic benefit
of

the

medication

they

purchased

as

a

result

of

Defendants’

actions” and that they were compelled “to purchase amounts of

size because it would make less money. Id. As the Court held
previously, these allegations do not address “how it would impact
Alcon’s discretion, much less the discretion of the thirteen other
Defendants, in setting the prices of redesigned products.”
Cottrell, 2015 U.S Dist. LEXIS 81830 at *18-19 n.5. Plaintiffs’
additional allegations, again, do not explain how these 20-year
old conversations with former executives have any impact on Alcon’s
discretion now – or any other defendants in this case — to set the
prices of certain hypothetically redesigned bottles in the future.
5
I cited a plethora of cases in my previous opinion that I
found supported my conclusion in this regard. I will not repeat
them here. See Cottrell, 2015 U.S. Dist. LEXIS 81830 at *19-20.
17

medication that were not useful and therefore wasted.” Am. Compl.,
¶¶ 175-176.

In that regard, Plaintiffs claim that they are

entitled to receive reimbursement from Defendants for those wasted
drops.

But, these allegations do not assuage any of the Court’s

concerns.
First and foremost, Plaintiffs’ causes of action sound in
fraud.

Yet, Plaintiffs do no allege that they were promised by

Defendants a specific number of doses or drops and that the
consumers failed to receive those amounts.

Nor are there any

allegations that Plaintiffs were forced to purchase additional
prescriptions because the medications were depleted prematurely.
Indeed, Plaintiffs do not allege that the eye medications failed
to perform as intended such that Plaintiffs did not receive the
benefit of their bargain.

Moreover, there are no allegations that

Plaintiffs were induced by any deception on the part of the
defendants to purchase the medications.
are

no

allegations

that

any

And, importantly, there

Plaintiffs

would

have

purchased

comparable cheaper products that dispense smaller drops, in lieu
of Defendants’ products.
What I have just outlined above are theories of injuries
normally attendant to consumer fraud claims.

In fact, I advised

Plaintiffs that there are, generally, two theories of economic
harm

associated

with

consumer

fraud

actions:

benefit-of-the-

bargain and out-of-pocket expenses. The former relates to economic
18

damages caused by a product failing to perform as advertised, and
therefore, the consumer would not have received the benefit of
his/her bargain.

See, e.g., Koronthaly v. L'Oreal USA, Inc., 374

Fed. Appx. 257, 259 (3d Cir. 2010) (“[a]bsent any allegation that
[plaintiff] received a product that failed to work for its intended
purpose

or

was

worth

objectively

less

than

what

one

could

reasonably expect, [plaintiff] has not demonstrated a concrete
injury-in-fact.”).

The latter encompasses any expenses that a

plaintiff incurred as a result of purchasing the defective product,
e.g., replacement costs.

See, e.g., Marcus v. BMW of N. Am.,

LLC, 687 F.3d 583, 606 (3d Cir. 2012); Dicuio v. Brother Intern.
Corp., No. 11-1447, 2012 U.S. Dist. LEXIS 112047, at *7 (D.N.J.
Aug. 9, 2012) (“The out-of-pocket rule applies when a plaintiff
can demonstrate that he paid money, and is now, out-of-pocket.”).
I further advised Plaintiffs that they must allege sufficiently to
establish a viable economic harm such that they have standing to
sue.

However, none of the new pleadings asserted by Plaintiffs

demonstrate such a harm.
Rather,

Plaintiffs’

reimbursement

theory

rests

on

their

disagreement with how Defendants designed their bottles — a design
that has been specifically approved by the FDA in a medical context
— and their insistence that they should be reimbursed for drops
that were wasted as a result of the design, although Plaintiffs
were

never

promised

a

certain
19

number

of

doses.

This

is

not

sufficient. Suppose Plaintiffs’ claims were based on allegations
that the packaging of Defendants’ products were excessive such
that they had overpaid for the products.

Further suppose that if

Defendants changed such packaging, consumers would pay less for
the medications.
standing

to

Clearly, however, Plaintiffs would not have

sue

Defendants

for

consumer

fraud

based

on

the

packaging allegations because Plaintiffs would have suffered no
injuries since no deception by Defendants was made in that regard.
In sum, such a hypothetical example and Plaintiffs’ reimbursement
theory alike, merely rely on an “unsupported conclusion regarding
[an] alleged loss.” see Lieberson v. Johnson & Johnson Consumer
Cos., 865 F. Supp. 2d 529, 541 (D.N.J. 2011).
In conclusion, the Court holds that Plaintiffs have failed to
sufficiently allege Article III standing.

Therefore, it deprives

this Court of subject matter jurisdiction.
United

States,

jurisdiction,

486

the

F.3d

Court

806,
is

810

without

(3d

See Ballentine v.

Cir.

authority

2007).
to

Absent

address

the

parties’ remaining merit-based arguments. See Adams v. Ford Motor
Co., 653 F.3d 299, 304 (3d Cir. 2010) (“[i]f plaintiffs do not
possess Article III standing, both the District Court and this
Court lack subject matter jurisdiction to address the merits of
plaintiff's case.”).

20

CONCLUSION
For the reasons set forth above, Defendants’ motions to
dismiss are GRANTED as Plaintiffs lack standing to bring suit.
a

result,

Plaintiffs’

motion

for

leave

to

file

As

supplemental

exhibits relating to issues involving the merits of this Case is
denied as MOOT.

DATE:

March 24, 2016

/s/
Freda L. Wolfson
Freda L. Wolfson
United State District Judge

21