From: News

Contrary to what many had believed, the death knell has not sounded for lawsuits filed by people who claim they sustained non-Fusarium eye infections from Bausch & Lomb’s recalled ReNu with MoistureLoc Contact Lens Solution. Those lawsuits suffered a setback last month when a New York state court judge issued a ruling that excluded many of the non-Fusarium plaintiffs’ expert witnesses. But at a status conference held August 15, the same judge indicated that those cases are still very much alive.

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 ReNu recall spawned 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 ReNu. Those lawsuits assert that if the disinfectant in ReNu couldn’t kill Fusarium, it couldn’t kill other organisms.

Last month, a “Frye hearing” was held before New York state court judge Shirely Kornreich to determine whether plaintiffs’ proof of general causation linking MoistureLoc to non-Fusarium conditions rose to the level of admissible evidence. In a 28-page decision, Judge Kornreich found against the plaintiffs, excluding many of their expert witnesses. Many court observers felt that the decision was a major blow to the non-Fusarium plaintiffs, and some even predicted non-Fusarium cases would ultimately be dismissed from the ReNu litigation.

But at the August 15 status conference, Judge Kornreich signaled that those cases would be moving forward. Of note, the judge indicated that the non-Fusarium plaintiffs would be permitted to go forward with the deposition of witnesses. At the beginning of the hearing, she also inquired as to whether or not the non-Fusarium cases could be settled.