EMAIL TO A FRIEND COMMENT

 

Product Claim Fails; Contact Lenses Not In Manufacturer’s Recall


A week after a man started using a particular type of contact lenses, he experienced sharp pain in his eyes. He did not immediately discontinue use of the lenses. He had had eye problems with other contacts before. He limited his use of the contacts to times when he exercised, and continued to wear the lenses off and on for a few months. He stopped using this particular type of contact lenses after five months.

 

The contact lens manufacturer discovered that a large number of the contact lenses it manufactured had poor ion permeability and thus did not permit enough oxygen to reach the cornea. The company recalled 11 million contact lenses for this reason. The recalled lots included some of the type of contact lenses the man used that were ordered by the store where the man purchased his contact lenses.

 

The man sued the contact lens manufacturer in the Circuit Court of Cook County for negligence, strict product liability, and breach of implied warranty. The complaint alleged that the manufacturer’s contact lenses caused his pain. The contact lens manufacturer removed the case to federal court relying on diversity jurisdiction. After discovery and various motions to dismiss, the man had only one legal theory left for why the contact lens manufacturer would be liable for his eye pain: that he used lenses that were subject to the contact lens manufacturer’s recall.

 

The contact lens manufacturer moved for summary judgment on the ground that the man never used the recalled lenses. It relied on evidence showing that none of the lenses shipped to and later recalled from the store where the man purchased his contact lenses were in his prescription strength. The United States District Court for the Northern District of Illinois, Eastern Division, entered summary judgment in favor of the contact lens manufacturer.

 

The Seventh Circuit United States Court of Appeals affirmed. The court held that the man failed to establish that his contact lenses were subject to the recall; the fact that the man suffered discomfort and pain while wearing the manufacturer's lenses did not, by itself, establish a defect; and the district court did not abuse its discretion in denying the man's request for additional discovery.

 

The man failed to establish that his contact lenses were subject to the recall. Even though the man’s lenses were manufactured in same plant as the recalled lenses and the contact lens manufacturer shipped recalled lenses to the optical store at which he purchased his lenses, the manufacturer's documentation established that none of the lenses shipped to the store that fell within terms of the recall matched the man's prescription.

 

The fact that the man suffered discomfort and pain while wearing the manufacturer's lenses did not, by itself, establish a defect. The man had reacted poorly to other companies' contact lenses. The man offered no factual support that would permit a reasonable trier of fact to conclude his injuries stemmed from this manufacturer’s defective lenses and not from a general reaction to all contact lenses or something else altogether.

 

The district court did not abuse its discretion in denying the man's request for additional discovery. The man failed to file an affidavit, as required by the Federal Rules of Civil Procedure, explaining why he needed additional discovery to respond to the manufacturer's motion for summary judgment. Specifically, the man sought to depose the contact lens manufacturer’s new interim head of distribution. He had already deposed the previous head of distribution. During that deposition he had asked about business records confirming that no lenses in his prescription were recalled from the location where he purchased his contact lenses. The district judge did not abuse or discretion when she decided that the man did not need to depose the contact lens manufacturer’s new interim head of distribution. The district court’s denial of the man’s request for additional discovery came at the end of a long line of requests the court had granted. The district court had given the man multiple opportunities and extensions in his filings and discovery requests.

 

The Seventh Circuit United States Court of Appeals affirmed the district court’s entry of summary judgment in favor of the contact lens manufacturer.

 

See: Kallal v. CIBA Vision Corp., Inc., 2015 WL 759249 (C.A.7 (Ill.), February 24, 2015) (not designated for publication).

 

See also Medical Law Perspectives, July 2014: Injuries Resulting From Laser Procedures: Risks for Physicians, Technicians, and Manufacturers

 

See also Medical Law Perspectives, March 2013: When Cataract Treatment Creates More Harm Than Cure: Malpractice Liability Issues

 

 

REPRINTS & PERMISSIONS COMMENT