Plaintiffs' lawyers eye quick settlement in contact lens litigation

Daily Record and the Kansas City Daily News-Press, Jun 13, 2006 by Nora Lockwood Tooher

(This article originally ran in Lawyers Weekly USA, Boston, MA, another Dolan Media publication.)

Jennifer Samuel, 59, of Miami had been using Bausch & Lomb's ReNu with MoistureLoc contact lens solution for a few months when she developed a painful eye fungus that permanently scarred her cornea.

As a result of the damage, she lost 95 percent of the vision in her infected eye and had to have a corneal transplant.

Samuel is suing Bausch & Lomb, alleging that the company's solution failed to remove the fungus or caused the fungus that contaminated her lenses, leading to a fungal infection in her eye.

At least a dozen similar suits have been filed in Florida, New York, Pennsylvania and other states by contact lens wearers who claim they contracted a rare eye fungus and suffered corneal scarring after using ReNu MoistureLoc.

Several legal experts predict that the company will move quickly to settle.

My sense is they may settle early, said J. David Prince, a law professor at William Mitchell College of Law in St. Paul, Minn., who specializes in product liability. It seems to me from their own press releases that they're essentially admitting liability. It's just a question of damages.

Bausch & Lomb, based in Rochester, N.Y., declined to comment on pending litigation. But the company said it notified the Food and Drug Administration within days of receiving a report in February of an unusual spike of fusarium keratitis cases among contact lens wearers in Singapore. It filed a formal report with the FDA on April 7.

The company suspended shipments of MoistureLoc to U.S. retailers April 10, when the Centers for Disease Control and Prevention revealed an unusual incidence of fungal infections in its users. It removed the product from the U.S. market April 13.

On May 15, the company announced that it was permanently removing MoistureLoc from worldwide markets because of the risk of serious eye infections.

Federal investigators have found no evidence of tampering at the company's Greenville, S.C., plant, where MoistureLoc was produced.

That leads us to conclude that some aspect of the MoistureLoc formula may be increasing the relative risk of fusarium infection in unusual circumstances, Bausch & Lomb chairman and chief executive Ronald L. Zarella said.

Bausch & Lomb has essentially admitted liability, Prince said. They've withdrawn the product from the market. The worst thing that can be said is that maybe they were slower withdrawing from the U.S. market then they should have been.

Paul J. Pennock, a partner with Weitz & Luxenberg in New York in charge of pharmaceutical and medical device litigation, agreed.

It's not that big of an exposure (now), but if you start defending it, it could mushroom out of control, both in terms of defense costs and adverse jury verdicts, he said.

Pennock, who is representing several plaintiffs in suits against Bausch & Lomb in New York, added, If they're getting good advice, I think they're going to get their arms around this pretty quickly.

But Diane Sullivan, a pharmaceutical defense lawyer with Dechert in Princeton, N.J., who successfully defended Merck & Co. in a Vioxx lawsuit in New Jersey last year, said Bausch & Lomb might need some time to determine its settlement strategy.

The company will need to assess the potential universe of claims and types of claims - for example, any viable medical monitoring claims - and statute of limitations issues prior to determining an appropriate strategy regarding settlement issues, she said.

As of May 18, 130 confirmed cases of fusarium keratitis, a fungal infection of the cornea, have been reported to the CDC. Of those 130 individuals, 118 were able to confirm which contact lens solution they used during the month before the onset of their eye infections. Seventy five reported using ReNu with MoistureLoc alone; 14 reported using MoistureLoc in combination with another product; eight reported using an unspecified Bausch & Lomb solution; and 21 reported using products from other manufacturers.

Pennock predicted that there could eventually be as many as 1,500 cases. Some financial analysts have predicted Bausch & Lomb could be forced to pay up to $1 billion in damages.

Despite some predictions of quick settlements, several plaintiffs' attorneys said they expected Bausch & Lomb would vigorously defend these lawsuits.

C. Calvin Warriner III, a products liability lawyer with Searcy, Denney, Scarola, Barnhart & Shipley in West Palm Beach, Fla., predicted that Bausch & Lomb would argue that consumers' lens care habits or other factors caused the fungus infections.

My hunch is that they will take a bunch of plaintiffs' depositions and try to develop an algorithm of questions that will allow them to foster a defense. They may even try a couple of these cases, he said.

But Warriner, whose firm has filed two lawsuits in state court in Florida against Bausch & Lomb, said the company should accept responsibility for damages.