Calif. Contact-Lens Solution Class Is Certified

Amanda Bronstad

The National Law Journal

Six months after the California Supreme Court lowered standing requirements for consumer class actions, a state trial judge has certified a class of consumers who purchased contact lens solution linked to an infection that can cause blindness.

Orange County, Calif., Superior Court Judge David C. Velasquez ruled on Nov. 12 against Abbott Medical Optics Inc., formerly Advanced Medical Optics Inc.

Plaintiffs attorney Mark Robinson, senior partner at Robinson, Calcagnie & Robinson in Newport Beach, Calif., credited the certification order to the California Supreme Court's May 18 decision in In re Tobacco II Cases. That ruling resolved a legal dispute over Proposition 64, a 2004 ballot initiative designed to curb consumer cases filed under California's unfair competition law by requiring that plaintiffs show actual injury. In that case, in which Robinson represented tobacco smokers, the California Supreme Court said that class actions alleging consumer fraud can go forward even if not all the class members have suffered injuries caused by deceptive advertising.

Before In re Tobacco II, class certification in the Abbott case appeared destined for failure, Robinson said.

"There certainly was a trend among the lower courts of appeal in that direction before the [California] Supreme Court made it clear that the law was we're still going to allow these types of cases to be brought in California," he said.

The plaintiffs, who represent California consumers who purchased Complete MoisturePlus contact lens solution between 2003 and 2007, are asking for refunds of their money. They claim that the company misled them into believing that its contact lens solution disinfected their lenses, when in fact the solution could cause an eye infection that can lead to pain and blindness or even force the removal of an eye.

Robinson expressed hope that the In re Tobacco II ruling could persuade a federal judge in San Francisco to certify a nationwide class of consumers in separate case he is handling against Abbott.

Mark Hellenkamp, a partner in the San Diego office of Morris Polich & Purdy of Los Angeles, who represents Abbott, did not return a call for comment. The company is a Santa Ana, Calif.-based subsidiary of Abbott Laboratories, which is based in Abbott Park, Ill.

In 2007, Abbott recalled hundreds of thousands of units of its contact lens solution after the Food and Drug Administration found bacterial contamination in the product.