Lawsuits filed by people who claim they sustained non-Fusarium eye infections from Bausch & Lomb’s ReNu with MoistureLoc Contact Lens Solution suffered a setback last month when a New York state court judge issued a ruling that excluded the opinions of the non-Fusarium plaintiffs’ expert witnesses. But at a status conference held August 18, 2009, the same judge indicated that dismissal of the nearly 500 remaining cases filed in New York was not a foregone conclusion.
Bausch & Lomb pulled ReNu with MoistureLoc from Asian markets in February 2006, and did the same in the U.S. in April of that year, after it was linked to an outbreak of Fusarium keratitis, a potentially blinding eye infection. The company would ultimately issue a worldwide recall of ReNu with MoistureLoc on May 15, 2006. A Centers for Disease Control (CDC) report confirmed 180 cases of Fusarium keratitis in the U.S.
The outbreak of infectious keratitis led to the filing of hundreds of product liability lawsuits against Bausch & Lomb. Some of these were filed by people who developed eye infections other than Fusarium keratitis while they were using MoistureLoc. Those lawsuits assert that if the disinfectant in ReNu could not kill fusarium, it could not kill bacteria or other infectious organisms.
Last month, a “Frye hearing” was held before New York state Supreme Court Justice Shirley Werner Kornreich to determine whether plaintiffs’ proof of general causation linking MoistureLoc to non-Fusarium infections rose to the level of admissible evidence. In a 28-page decision, Justice Kornreich found against the plaintiffs, excluding the opinions of their expert witnesses. At the August 18th status conference, however, Justice Kornreich expressed concern that discovery in the case remained outstanding, and indicated that plaintiffs would be permitted to go forward with the depositions of Bausch & Lomb witnesses. Of note, she also inquired as to whether or not the non-Fusarium cases could be settled. According to Andres Alonso, an attorney representing non-Fusarium plaintiffs, the judge was told that such a resolution was not likely, considering the ruling she issued at the Frye hearing. However, as we reported previously, Mr. Alonso, a partner with Parker Waichman LLP, has indicated that Justice Kornreich’s Frye decision will be appealed.
Another Parker Waichman LLP attorney, Daniel Burke, said that Bausch & Lomb asked the court to order a procedural mechanism by which large numbers of the remaining cases would be deemed subject to the Frye order, and further subject to a self-executing order of dismissal. Justice Kornreich declined to do so, and instead directed that the defendant make motions to dismiss in any case it felt it was so entitled. Mr. Burke said that this ruling demonstrates not only the court’s recognition that the burden on a motion to dismiss remains on the defendant, but also its intention to hold defendant to that burden. “We’re confident that there are cases in the litigation, currently classified as ‘non-Fusarium’ by defendant that can and should be settled while the appeal is pending,” Mr. Burke said.
According to Mr. Alonso, Justice Kornreich has scheduled trials for unresolved ReNu Fusarium cases starting in early 2010, and they should continue into the spring. Mr. Alonso also said that Justice Kornreich indicated that she wanted all of the ReNu litigation resolved “sooner rather than later.”
“Discovery is continuing in all of the ReNu lawsuits,” Mr. Alonso said. “When trials begin next year, we plan on being there to represent all of our ReNu clients.”
