New Jersey Law Journal: “Suit Against CVS Claims Eye Drops Were Tainted by Caustic Chemical”

By David Gialanella
May 15, 2014

A CVS Pharmacy customer alleges in a New Jersey state court suit that store-brand eye drops contained bleach or peroxide, causing serious injury to his eyes.

Gregg Schwack of Fort Lee, in a suit filed Thursday, alleges that the CVS Pharmacy Redness Relief drops he purchased at a store on River Road in Edgewater on March 30 were contaminated or adulterated.

Schwack applied the treatment to both eyes and immediately felt extreme pain and burning, despite attempts to flush his eyes, and detected the smell of bleach, according to the complaint and his lawyer, Rosemarie Arnold, who heads a Fort Lee firm.

In the weeks since, he’s made numerous doctor visits but still experiences puss, soreness, swelling and blisters in his eyes, Arnold said.

He “was disabled and disfigured and has suffered and will continue to suffer great mental and physical pain and torment,” and “will be in the future compelled to spend great and diverse sums of money for medical aid and treatment, and has been and will be prevented from attending his usual occupation, duties, activities and business,” said the complaint in Schwack v. CVS Pharmacy Inc., filed in Bergen County Superior Court.

The drops were in a sealed container in a sealed box that “was not tampered with” after manufacture, and Schwack applied them as directed, Arnold said.

The suit alleges negligence, gross negligence and recklessness, breach of express and implied warranty, and strict liability under the theory of res ipsa loquitor, which presumes negligence by the nature of the injury.

CVS “put or caused to be put a dangerous product in the stream of commerce” and “must be held strictly liable in tort,” the complaint stated.

The complaint also alleges that Schwack “is the intended third-party beneficiary under a policy or policies of insurance held by defendants…for the payment of medical expenses as the result of the subject accident.”

Arnold said she has asked CVS to cover Schwack’s medical expenses, but the corporation denies that the eye drops could have been contaminated as alleged and has not given a definitive answer on the medical coverage.

The suit names CVS Pharmacy Inc., CVS Caremark and Altaire Pharmaceuticals, which manufactured the drops for CVS.

Arnold said she’s not aware of any other allegations of contaminated CVS eye drops, but last September Altaire voluntarily recalled some lots of an eye care product sold by CVS, Eye Drops for Mild to Moderate Dry Eye, because a preservative contained in the solution could have become ineffective and permitted mold growth. Altaire characterized the recall as precautionary, according to a notice from the Federal Food and Drug Administration.

Schwack, 48, works for Bravo TV and Food Network as a consulting chef and is father to two young boys, according to Arnold.

CVS spokeswoman Christine Cramer didn’t return a call or respond to an email seeking comment late Thursday.

A call to Altaire Pharmaceuticals of Riverhead, N.Y., was not returned.

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