Oliva v. Ezricare
Oliva v. Ezricare
Oliva v. Ezricare
CASE NO.
Defendants.
___________________________________/
The Plaintiff, Clara Elvira Oliva, sues the Defendants Global Pharma Healthcare Private
Ltd., EzriCare, LLC, EzriRx, LLC, Leon Medical Centers, LLC, and HealthSpring of Florida, Inc.,
and alleges:
2. This case arises out of a defective artificial tear product that was designed,
manufactured, distributed, imported, sold, and/or supplied by the Defendants. The name of this
defective artificial tear product is EzriCare Artificial Tears (hereinafter referred to as “EzriCare
Artificial Tears,” “Artificial Tears” or “Product”). The Defendants were responsible for the
Artificial Tears entering Florida’s stream of commerce, which, as the Defendants intended, were
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Law Offices Grossman Roth Yaffa Cohen, P.A.
2525 Ponce de Leon Boulevard, Suite 1150, Coral Gables, Florida 33134 T 305.442.8666 F 305.285.1668
purchased and used by Florida consumers, including the Plaintiff. As a result of the Artificial
Tears’ defects, numerous consumers, including the Plaintiff, suffered catastrophic permanent
4. Defendant Global Pharma Healthcare Private Ltd. (“Global”) was and is a foreign
capsules, liquid orals, dry syrup, ointments, sachets, parenterals, eye care products, and antibiotics
to customers across the globe. Defendant Global manufactured the contaminated Product at issue
in this litigation that caused Plaintiff’s significant injuries. This Court has specific personal
jurisdiction over Defendant Global, under Florida’s long-arm statute, §48.193(1)(a)(6)(b), because
the Product processed, serviced and/or manufactured by Global was consumed within the state of
Florida in the ordinary course of commerce, injuring Mrs. Oliva. Moreover, Global is engaged in
substantial and not isolated activity within the state of Florida because it purposefully established
minimum contacts within the forum by contracting with the other Defendant entities, identified
below, knowing that the Product it manufactured would be distributed, imported, sold, promoted,
and consumed in the United States, including Florida. Id. at (2). Such activity was substantial,
continuous and planned so that Defendant Global, within the Product’s supply chain, would profit
from local consumers. Global’s sufficient minimum contacts with Florida support the exercise of
this Court’s jurisdiction, which does not offend traditional notions of fair play and substantial
justice.
5. Defendant EzriCare, LLC (“EzriCare”), was and is a New Jersey limited liability
company that was at all times material engaged in the business of importing, selling, supplying,
packaging, distributing, and marketing the Artificial Tears throughout the United States, including
Florida. This Court has specific personal jurisdiction over Defendant EzriCare, under Florida’s
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Law Offices Grossman Roth Yaffa Cohen, P.A.
2525 Ponce de Leon Boulevard, Suite 1150, Coral Gables, Florida 33134 T 305.442.8666 F 305.285.1668
long-arm statute, §48.193(1)(a)(6)(b), because the Product processed, serviced and/or
manufactured by EzriCare was consumed within the state of Florida in the ordinary course of
commerce, injuring Mrs. Oliva. Moreover, EzriCare is engaged in substantial and not isolated
activity within the state of Florida because it purposefully established minimum contacts within
the forum by contracting with the other Defendant entities, identified in this Complaint, knowing
that its Product would be distributed, imported, sold, promoted, and consumed in the United States,
including Florida. Id. at (2). Such activity was substantial, continuous and planned so that
Defendant EzriCare, within the Product’s supply chain, would profit from local consumers.
EzriCare’s sufficient minimum contacts with Florida support the exercise of this Court’s
jurisdiction, which does not offend traditional notions of fair play and substantial justice.
company that was at all times material engaged in the business of importing, selling, supplying,
packaging, distributing, and marketing the Artificial Tears throughout the United States, including
Florida. EzriRx operates an online platform that allows pharmacies to purchase over tens of
thousands of medications and over-the-counter products from wholesalers throughout the United
States. This Court has specific personal jurisdiction over Defendant EzriRx, under Florida’s long-
arm statute, §48.193(1)(a)(6)(b), because the Product processed, serviced and/or manufactured by
EzriRx was consumed within the state of Florida in the ordinary course of commerce, injuring
Mrs. Oliva. EzriRx is engaged in substantial and not isolated activity within the state of Florida
because it purposefully established minimum contacts within the forum by contracting with the
other Defendant entities, identified in this Complaint, knowing that its Product would be
distributed, imported, sold, promoted, and consumed in the United States, including Florida. Id. at
(2). Such activity was substantial, continuous and planned so that Defendant EzriRx, within the
Product’s supply chain, would profit from local consumers. EzriRx’s sufficient minimum contacts
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Law Offices Grossman Roth Yaffa Cohen, P.A.
2525 Ponce de Leon Boulevard, Suite 1150, Coral Gables, Florida 33134 T 305.442.8666 F 305.285.1668
with Florida support the exercise of this Court’s jurisdiction, which does not offend traditional
7. Defendant Aru Pharma, Inc. (“Aru”), was and is a New York corporation that was
at all times material engaged in the business of importing, marketing, and distributing the Artificial
Tears throughout the United States, including Florida. Upon information and belief, Defendant
Aru formulated, designed, and imported the Artificial Tears into the United States. Nevertheless,
this Court has specific personal jurisdiction over Defendant Aru, under Florida’s long-arm statute,
§48.193(1)(a)(6)(b), because the Product processed, serviced and/or manufactured by Aru was
consumed within the state of Florida in the ordinary course of commerce, injuring Mrs. Oliva. Aru
is engaged in substantial and not isolated activity within the state of Florida because it purposefully
established minimum contacts within the forum by contracting with the other Defendant entities,
identified in this Complaint, knowing that the Product it manufactured would be distributed,
imported, sold, promoted, and consumed in the United States, including Florida. Id. at (2). Such
activity was substantial, continuous and planned so that Defendant Aru, within the Product’s
supply chain, would profit from local consumers. Aru’s sufficient minimum contacts with Florida
support the exercise of this Court’s jurisdiction, which does not offend traditional notions of fair
8. Defendant Leon Medical Centers, LLC (“Leon”), was and is a Florida limited
liability company, with its principal place of business located in Miami-Dade County, Florida.
Leon has three managers, all of whom are in Miami-Dade County, Florida. At all times material,
9. Defendant HealthSpring of Florida, Inc., d/b/a Leon Medical Centers Health Plans
(“HealthSpring”), is a Florida corporation, with its principal place of business located in Miami-
Dade County, Florida. At all times material, HealthSpring operated as an insurance company,
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Law Offices Grossman Roth Yaffa Cohen, P.A.
2525 Ponce de Leon Boulevard, Suite 1150, Coral Gables, Florida 33134 T 305.442.8666 F 305.285.1668
offering healthcare and disability insurance services to customers internationally.
10. Venue is proper in Miami-Dade County, Florida, where one or more of the
Defendants reside and the events giving rise to this lawsuit occurred.
11. The Artificial Tears are a preservative-free lubricant eye drop available for over-
the-counter purchase.
12. The Artificial Tears have been marketed and advertised to the public (1) as a
protectant against further irritation or to relieve dryness of the eye; and (2) for the temporary relief
Sodium 10 MG in 1 ml, and the inactive ingredients include Boric Acid, Potassium Chloride,
Sodium Chloride, Calcium Chloride Dihydrate, Magnesium Chloride, Sodium Chlorite, Sodium
Hydroxide, and Water for injection. Notably, because the Product is “preservative free,” chemicals
used to prevent the growth of bacteria have been removed and are not present in the Product.
14. The National Drug Code (NDC) number for the Artificial Tears is 79503-101-15.
15. At all times material, the Artificial Tears eye drops were manufactured in India and
then imported, distributed, marketed, supplied and ultimately sold to consumers throughout the
16. At all times material, each Defendant was part of the Artificial Tear “supply chain”
and had the responsibility to prevent this defective Product from reaching the end consumer,
17. On January 24, 2023, Defendant EzriCare issued a statement regarding the
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Law Offices Grossman Roth Yaffa Cohen, P.A.
2525 Ponce de Leon Boulevard, Suite 1150, Coral Gables, Florida 33134 T 305.442.8666 F 305.285.1668
contamination of its Artificial Tears Product, stating that it was made aware of the Centers for
Disease Control’s (“CDC”) ongoing investigation related to adverse events implicating various
18. On February 1, 2023, about a week later, the CDC issued a Health Alert Network
California, Colorado, Florida, New Jersey, New Mexico, Nevada, Texas, Utah, Washington and
Wisconsin.
(VIM-GES-CRPA), had never been reported in the United States prior to this outbreak. The CDC
noted that the outbreak is associated with multiple types of infections, including eye infections.
20. That same day, Defendant EzriCare issued another statement: “EzriCare, LLC first
received notice of the CDC's ongoing investigation into a multistate cluster of Pseudomonas
aeruginosa infections on January 20, 2023. As of today, we are not aware of any testing that
definitively links the Pseudomonas aeruginosa outbreak to EzriCare Artificial Tears. Nonetheless,
we immediately took action to stop any further distribution or sale of EzriCare Artificial Tears. To
the greatest extent possible, we have been contacting customers to advise them against continued
use of the product. We also immediately reached out to both CDC and FDA and indicated our
21. On February 2, 2023, the U.S. Food and Drug Administration (“FDA”) then issued
a statement “warning consumers and health care practitioners not to purchase and to immediately
1
EzriCare Artificial Tears – Discontinue Use, located at https://ezricare-info.com/
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Law Offices Grossman Roth Yaffa Cohen, P.A.
2525 Ponce de Leon Boulevard, Suite 1150, Coral Gables, Florida 33134 T 305.442.8666 F 305.285.1668
stop using the contaminated EzriCare Artificial Tears … due to potential bacterial
contamination.”2
22. The FDA also urged Global Pharma to initiate a recall due to the company’s
“current good manufacturing practice (CGMP) violations,” which included a “lack of appropriate
microbial testing, formulation issues (the company manufactures and distributes ophthalmic drugs
in multi-use bottles, without an adequate preservative), and lack of proper controls concerning
23. Accordingly, Global Pharma voluntarily recalled all unexpired lots of EzriCare
Artificial Tears and acknowledged the 55 reported adverse events including eye infections,
permanent loss of vision, and a death with a blood stream infection. 3 The included “Risk
Statement” further acknowledged that the “[u]se of contaminated artificial tears can result in the
24. The FDA also placed Global Pharma on import alert for providing an inadequate
response to a records request and for not complying with CGMP requirements. The import alert
25. The epidemiologic evidence investigated by the CDC indicates that contaminated
2
FDA warns consumers not to purchase or use EzriCare Artificial Tears due to potential
contamination, Food & Drug Admin. (Feb. 2, 2023), located at https://www.fda.gov/drugs/drug-
safety-and-availability/fda-warns-consumers-not-purchase-or-use-ezricare-artificial-tears-due-
potential-contamination.
3
See Global Pharma Healthcare Issues Voluntary Nationwide Recall of Artificial Tears Lubricant
Eye Drops Due to Possible Contamination, located at https://global-pharma.com/otc.pdf.
4
Id.
5
FDA warns consumers not to purchase or use EzriCare Artificial Tears due to potential
contamination, Food & Drug Admin. (Feb. 2, 2023), located at https://www.fda.gov/drugs/drug-
safety-and-availability/fda-warns-consumers-not-purchase-or-use-ezricare-artificial-tears-due-
potential-contamination.
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Law Offices Grossman Roth Yaffa Cohen, P.A.
2525 Ponce de Leon Boulevard, Suite 1150, Coral Gables, Florida 33134 T 305.442.8666 F 305.285.1668
Artificial Tears were the source of the outbreak. Further, most infected patients reported using
Artificial Tears. Most infected patients specifically reported using EzriCare Artificial Tears, and
CDC laboratory testing identified the presence of the outbreak strain, VIM-GES-CRPA, in
multiple lots of opened EzriCare Artificial Tear bottles, involving specimens collected from May
endophthalmitis, respiratory infections, urinary tract infections, sepsis, permanent vision loss and
enucleation resulting from cornea infection, extensive hospitalization, and death due to systematic
infection.
27. Since the CDC’s initial Health Advisory, three additional adverse events have been
reported. Currently, a total of 58 patients with infections have been identified in 13 states.
28. Pseudomonas Aeruginosa is a bacterium notorious for being versatile and innately
resistant pathogen recognized for its ubiquity, its intrinsically advanced antibiotic resistance
mechanisms, and its wide range of dynamic defenses, which make it an extremely challenging
29. In addition to plants and animals, the Pseudomonas Aeruginosa bacteria has been
known to infect humans. This specific bacterium has been linked to serious skin, eye, lung and
the bacterium has the ability to grow extensive colonies in conditions of partial or total oxygen
depletion. As a result, advanced antibiotic regimens are often required for treatment and such
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Law Offices Grossman Roth Yaffa Cohen, P.A.
2525 Ponce de Leon Boulevard, Suite 1150, Coral Gables, Florida 33134 T 305.442.8666 F 305.285.1668
regimens often can lead to other serious adverse reactions or effects.
associated with this outbreak, tested at public health laboratories, were resistant to the following
tobramycin.
32. Plaintiff Clara E. Oliva is a 68-year-old woman with a history of dry eyes related
to her prescribed contact lenses, which she has been using for approximately 30 years.
33. Aside from diminished acuity in her left eye, she has no other significant ocular
history or issues.
34. Over the years, Clara obtained her contact lenses from Leon Medical Center. To
address the dryness of her eyes caused by the contact lenses, she uses eye drops. She has used such
products for many years and obtains them with her contacts at Leon Medical Center through her
36. Defendant HealthSpring typically provided Mrs. Oliva with lubricant eye drops
manufactured by a company known as Bausch + Lomb, Inc. However, in May 2022, Mrs. Oliva
noticed that the eye drops authorized by her insurer had changed. This time she was provided with
37. Mrs. Oliva began using the new brand of eye drops the Leon Defendants supplied
her with. She used EzriCare Artificial Tears for the next few months.
38. On August 1, 2022, however, her right eye, with no prior issues and good vision,
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Law Offices Grossman Roth Yaffa Cohen, P.A.
2525 Ponce de Leon Boulevard, Suite 1150, Coral Gables, Florida 33134 T 305.442.8666 F 305.285.1668
was noticeably red, swollen, and abnormally watery. That day, she presented to Leon Medical
Center to be evaluated by an ophthalmologist. She was seen by several different providers and was
told that she had a corneal scratch. The doctors prescribed her polytime, vigamox, tobramycin,
39. Despite Mrs. Oliva’s adherence to the prescribed regimen of antimicrobial and
antibiotic treatment, the symptoms in her right eye persisted and worsened. As a result, she went
40. The doctors at Bascom Palmer examined Mrs. Oliva and noted that the prescribed
medicines were ineffective, so they escalated the dosages and frequency of her antimicrobial and
antibiotic treatment. The doctors also performed a slit lamp and fundus exam of the right eye,
determining that Mrs. Oliva had confluent peripheral corneal ulcer. Cultures were obtained via a
cornea scraping diagnostic smear, and she was instructed to return in three days for re-evaluation.
41. On August 7, 2022, Mrs. Oliva returned to Bascom Palmer’s Rapid Access Clinic
as instructed. She was seen by an ophthalmology resident, who noted that her right eye still had
not improved and that her visual acuity was deteriorating. A physical exam showed an increase in
the size of her ulcer and the presence of fungus. Because the cultures from August 4th were still
pending, the treaters decided to start Mrs. Oliva on empiric antifungal therapy. She was started on
an antifungal and antiviral regimen, was instructed to taper the vancomycin and tobramycin, and
42. Over the next three days, Mrs. Oliva’s symptoms persisted, and she returned to
Bascom Palmer’s Rapid Access Clinic on August 10th as instructed. The results from the cultures
taken on August 4th had now been analyzed, which showed moderate growth of pseudomonas
aeruginosa. As a result, Mrs. Oliva was instructed to stop taking the antifungal medications and
vancomycin. Instead, she started on steroids and moxifloxacin and instructed to continue taking
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Law Offices Grossman Roth Yaffa Cohen, P.A.
2525 Ponce de Leon Boulevard, Suite 1150, Coral Gables, Florida 33134 T 305.442.8666 F 305.285.1668
tobramycin and cyclopentolate and to return in two days.
43. From August 12th to August 27th, Mrs. Oliva returned to Bascom Palmer ten times.
By August 27th it was clear to her Bascom providers that despite aggressive medical treatment the
pain in her right eye continued to increase, her visual acuity continued to worsen, and the corneal
ulcer continued to grow. The treaters modified her medications, but nothing attempted was
effective.
44. Given Mrs. Oliva’s deteriorating vision and chronic pain in her right eye, she was
45. On August 29, 2022, Mrs. Oliva underwent the Penetrating Keratoplasty procedure
for visual rehabilitation of the right eye. However, intraoperatively the surgeon observed and noted
scleral abscesses that extended well beyond the capabilities of the trephine or tool used to remove
the damaged cornea. As a result, the damaged portions of the cornea could not be safely removed,
46. Given the severity of the infection in Mrs. Oliva’s right eye, the exhaustion of
treatment methods, and the risk of the infection spreading systematically creating a life-threatening
condition, it was determined that an enucleation of Mrs. Oliva’s right eye was the best option to
47. Mrs. Oliva consulted with two ophthalmic plastic and reconstructive surgery
specialists in the immediate days following the abandoned procedure. Both recommended
48. On September 1, 2022, Mrs. Oliva’s right eye was surgically removed and replaced
with a plastic implant. Given her decreased visual acuity of 20/200 in her remaining left eye, Mrs.
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Law Offices Grossman Roth Yaffa Cohen, P.A.
2525 Ponce de Leon Boulevard, Suite 1150, Coral Gables, Florida 33134 T 305.442.8666 F 305.285.1668
49. As a direct and proximate result of the conduct of the Defendants in manufacturing,
contaminated EzriCare Artificial Tears, Mrs. Oliva has been permanently injured both physically
and emotionally. She now leads a difficult life that is markedly differing from what she had been
accustomed to.
COUNT 1
50. The Plaintiff adopts and realleges paragraphs 1 through 49 and further alleges:
inspected, labeled, distributed, marketed, promoted, sold, and/or otherwise released into the stream
of commerce the EzriCare Artificial Tears product and therefore had a duty to create a product that
52. The product created, designed, manufactured, distributed, sold, and/or supplied by
54. The product reached Mrs. Oliva without substantial change affecting its condition.
because it was different from its intended design and failed to perform as safely as the intended
design would have performed, since the intended design was intended to be sterile and not
contaminated with pseudomonas aeruginosa bacteria that can cause severe infections, leading to
life-threatening complications.
56. The Defendant’s defective product directly and proximately caused Plaintiff Mrs.
COUNT 2
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Law Offices Grossman Roth Yaffa Cohen, P.A.
2525 Ponce de Leon Boulevard, Suite 1150, Coral Gables, Florida 33134 T 305.442.8666 F 305.285.1668
CLAIM AGAINST DEFENDANT EZRICARE, LLC
STRICT LIABILITY – MANUFACTURING DEFECT
57. The Plaintiff adopts and realleges paragraphs 1 through 49 and further alleges:
inspected, labeled, distributed, marketed, promoted, sold, and/or otherwise released into the stream
of commerce the EzriCare Artificial Tears product and therefore had a duty to create a product that
59. The product created, designed, manufactured, distributed, sold, and/or supplied by
61. The product reached Mrs. Oliva without substantial change affecting its condition.
because it was different from its intended design and failed to perform as safely as the intended
design would have performed, since the intended design was intended to be sterile and not
contaminated with pseudomonas aeruginosa bacteria that can cause severe infections, leading to
life-threatening complications.
63. The Defendant’s defective product directly and proximately caused Plaintiff Mrs.
COUNT 3
64. The Plaintiff adopts and realleges paragraphs 1 through 49 and further alleges:
inspected, labeled, distributed, marketed, promoted, sold, and/or otherwise released into the stream
of commerce the EzriCare Artificial Tears product and therefore had a duty to create a product that
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Law Offices Grossman Roth Yaffa Cohen, P.A.
2525 Ponce de Leon Boulevard, Suite 1150, Coral Gables, Florida 33134 T 305.442.8666 F 305.285.1668
was not defective.
66. The product created, designed, manufactured, distributed, sold, and/or supplied by
68. The product reached Mrs. Oliva without substantial change affecting its condition.
because it was different from its intended design and failed to perform as safely as the intended
design would have performed, since the intended design was intended to be sterile and not
contaminated with pseudomonas aeruginosa bacteria that can cause severe infections, leading to
life-threatening complications.
70. The Defendant’s defective product directly and proximately caused Plaintiff Mrs.
COUNT 4
71. The Plaintiff adopts and realleges paragraphs 1 through 49 and further alleges:
labeled, distributed, marketed, promoted, sold, and/or otherwise released into the stream of
commerce the EzriCare Artificial Tears product and therefore had a duty to create a product that
73. The product created, designed, manufactured, distributed, sold, and/or supplied by
75. The product reached Mrs. Oliva without substantial change affecting its condition.
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Law Offices Grossman Roth Yaffa Cohen, P.A.
2525 Ponce de Leon Boulevard, Suite 1150, Coral Gables, Florida 33134 T 305.442.8666 F 305.285.1668
because it was different from its intended design and failed to perform as safely as the intended
design would have performed, since the intended design was intended to be sterile and not
contaminated with pseudomonas aeruginosa bacteria that can cause severe infections, leading to
life-threatening complications.
77. The Defendant’s defective product directly and proximately caused Plaintiff Mrs.
COUNT 5
78. The Plaintiff adopts and realleges paragraphs 1 through 49and further alleges:
labeled, distributed, marketed, promoted, sold, and/or otherwise released into the stream of
commerce the EzriCare Artificial Tears product and therefore had a duty to create a product that
80. The product created, designed, manufactured, distributed, sold, and/or supplied by
82. The product reached Mrs. Oliva without substantial change affecting its condition.
because it was different from its intended design and failed to perform as safely as the intended
design would have performed, since the intended design was intended to be sterile and not
contaminated with pseudomonas aeruginosa bacteria that can cause severe infections, leading to
life-threatening complications.
84. The Defendant’s defective product directly and proximately caused Plaintiff Mrs.
15
Law Offices Grossman Roth Yaffa Cohen, P.A.
2525 Ponce de Leon Boulevard, Suite 1150, Coral Gables, Florida 33134 T 305.442.8666 F 305.285.1668
COUNT 6
85. The Plaintiff adopts and realleges paragraphs 1 through 49 and further alleges:
inspected, labeled, distributed, marketed, promoted, sold, and/or otherwise released into the stream
of commerce the EzriCare Artificial Tears product and therefore had a duty to create a product that
87. The product created, designed, manufactured, distributed, sold, and/or supplied by
89. The product reached Mrs. Oliva without substantial change affecting its condition.
because it was different from its intended design and failed to perform as safely as the intended
design would have performed, since the intended design was intended to be sterile and not
contaminated with pseudomonas aeruginosa bacteria that can cause severe infections, leading to
life-threatening complications.
91. The Defendant’s defective product directly and proximately caused Plaintiff Mrs.
COUNT 7
92. The Plaintiff adopts and realleges paragraphs 1 through 49 and further alleges:
inspected, labeled, distributed, marketed, promoted, sold, and/or otherwise released into the stream
16
Law Offices Grossman Roth Yaffa Cohen, P.A.
2525 Ponce de Leon Boulevard, Suite 1150, Coral Gables, Florida 33134 T 305.442.8666 F 305.285.1668
of commerce the product, and directly advertised or marketed the product to Plaintiff Mrs. Oliva,
and therefore had a duty to create a product that was not defective.
Plaintiff Mrs. Oliva when created, designed, manufactured, distributed, sold, and/or supplied by
Defendant Global.
95. The product reached Mrs. Oliva without substantial change affecting that condition
after creation, design, manufacture, distribution, sale, and/or supply by Defendant Global.
96. The product had a design defect because it failed to perform as safely as an ordinary
consumer would expect when used as intended, causing permanent damage to Mrs. Oliva.
97. The product’s risk of danger in the design, by not including preservatives in
multiuse bottles, which is discouraged by the FDA because it can enable bacteria growth,
98. Defendant Global, through the defective product, directly and proximately caused
COUNT 8
99. The Plaintiff adopts and realleges paragraphs 1 through 49 and further alleges:
inspected, labeled, distributed, marketed, promoted, sold, and/or otherwise released into the stream
of commerce the product, and directly advertised or marketed the product to Plaintiff Mrs. Oliva,
and therefore had a duty to create a product that was not defective.
Plaintiff Mrs. Oliva when created, designed, manufactured, distributed, sold, and/or supplied by
Defendant EzriCare.
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Law Offices Grossman Roth Yaffa Cohen, P.A.
2525 Ponce de Leon Boulevard, Suite 1150, Coral Gables, Florida 33134 T 305.442.8666 F 305.285.1668
102. The product reached Mrs. Oliva without substantial change affecting that condition
after creation, design, manufacture, distribution, sale, and/or supply by Defendant EzriCare.
103. The product had a design defect because it failed to perform as safely as an ordinary
consumer would expect when used as intended, causing permanent damage to Mrs. Oliva.
104. The product’s risk of danger in the design, by not including preservatives in
multiuse bottles, which is discouraged by the FDA because it can enable bacteria growth,
105. Defendant EzriCare, through the defective product, directly and proximately
caused Plaintiff Mrs. Oliva serious permanent damage and she claims the damages set forth below.
COUNT 9
106. The Plaintiff adopts and realleges paragraphs 1 through 49 and further alleges:
inspected, labeled, distributed, marketed, promoted, sold, and/or otherwise released into the stream
of commerce the product, and directly advertised or marketed the product to Plaintiff Mrs. Oliva,
and therefore had a duty to create a product that was not defective.
Plaintiff Mrs. Oliva when created, designed, manufactured, distributed, sold, and/or supplied by
Defendant EzriRx.
109. The product reached Mrs. Oliva without substantial change affecting that condition
after creation, design, manufacture, distribution, sale, and/or supply by Defendant EzriRx.
110. The product had a design defect because it failed to perform as safely as an ordinary
consumer would expect when used as intended, causing permanent damage to Mrs. Oliva.
111. The product’s risk of danger in the design, by not including preservatives in
18
Law Offices Grossman Roth Yaffa Cohen, P.A.
2525 Ponce de Leon Boulevard, Suite 1150, Coral Gables, Florida 33134 T 305.442.8666 F 305.285.1668
multiuse bottles, which is discouraged by the FDA because it can enable bacteria growth,
112. Defendant EzriRx, through the defective product, directly and proximately caused
Plaintiff Mrs. Oliva serious permanent damage and she claims the damages set forth below.
COUNT 10
113. The Plaintiff adopts and realleges paragraphs 1 through 49 and further alleges:
labeled, distributed, marketed, promoted, sold, and/or otherwise released into the stream of
commerce the product, and directly advertised or marketed the product to Plaintiff Mrs. Oliva, and
Plaintiff Mrs. Oliva when created, designed, manufactured, distributed, sold, and/or supplied by
Defendant Aru.
116. The product reached Mrs. Oliva without substantial change affecting that condition
after creation, design, manufacture, distribution, sale, and/or supply by Defendant Aru.
117. The product had a design defect because it failed to perform as safely as an ordinary
consumer would expect when used as intended, causing permanent damage to Mrs. Oliva.
118. The product’s risk of danger in the design, by not including preservatives in
multiuse bottles, which is discouraged by the FDA because it can enable bacteria growth,
119. Defendant Aru, through the defective product, directly and proximately caused
Plaintiff Mrs. Oliva serious permanent damage and she claims the damages set forth below.
COUNT 11
19
Law Offices Grossman Roth Yaffa Cohen, P.A.
2525 Ponce de Leon Boulevard, Suite 1150, Coral Gables, Florida 33134 T 305.442.8666 F 305.285.1668
CLAIM AGAINST DEFENDANT LEON MEDICAL CENTERS, LLC
STRICT LIABILITY – DESIGN DEFECT
120. The Plaintiff adopts and realleges paragraphs 1 through 49 and further alleges:
labeled, distributed, marketed, promoted, sold, and/or otherwise released into the stream of
commerce the product, and directly advertised or marketed the product to Plaintiff Mrs. Oliva, and
Plaintiff Mrs. Oliva when created, designed, manufactured, distributed, sold, and/or supplied by
Defendant Leon.
123. The product reached Mrs. Oliva without substantial change affecting that condition
after creation, design, manufacture, distribution, sale, and/or supply by Defendant Leon.
124. The product had a design defect because it failed to perform as safely as an ordinary
consumer would expect when used as intended, causing permanent damage to Mrs. Oliva.
125. The product’s risk of danger in the design, by not including preservatives in
multiuse bottles, which is discouraged by the FDA because it can enable bacteria growth,
126. Defendant Leon, through the defective product, directly and proximately caused
Plaintiff Mrs. Oliva serious permanent damage and she claims the damages set forth below.
COUNT 12
127. The Plaintiff adopts and realleges paragraphs 1 through 49 and further alleges:
20
Law Offices Grossman Roth Yaffa Cohen, P.A.
2525 Ponce de Leon Boulevard, Suite 1150, Coral Gables, Florida 33134 T 305.442.8666 F 305.285.1668
inspected, labeled, distributed, marketed, promoted, sold, and/or otherwise released into the stream
of commerce the product, and directly advertised or marketed the product to Plaintiff Mrs. Oliva,
and therefore had a duty to create a product that was not defective.
Plaintiff Mrs. Oliva when created, designed, manufactured, distributed, sold, and/or supplied by
Defendant HealthSpring.
130. The product reached Mrs. Oliva without substantial change affecting that condition
after creation, design, manufacture, distribution, sale, and/or supply by Defendant HealthSpring.
131. The product had a design defect because it failed to perform as safely as an ordinary
consumer would expect when used as intended, causing permanent damage to Mrs. Oliva.
132. The product’s risk of danger in the design, by not including preservatives in
multiuse bottles, which is discouraged by the FDA because it can enable bacteria growth,
133. Defendant HealthSpring, through the defective product, directly and proximately
caused Plaintiff Mrs. Oliva serious permanent damage and she claims the damages set forth below.
COUNT 13
134. The Plaintiff adopts and realleges paragraphs 1 through 49 and further alleges:
inspected, labeled, distributed, marketed, promoted, sold, and/or otherwise released into the stream
of commerce the product, and directly advertised or marketed the product to Mrs. Oliva, and
therefore had a duty to warn of the risks associated with the use of the product.
136. The product was under the control of Defendant Global and was unaccompanied
21
Law Offices Grossman Roth Yaffa Cohen, P.A.
2525 Ponce de Leon Boulevard, Suite 1150, Coral Gables, Florida 33134 T 305.442.8666 F 305.285.1668
accurately reflect the risk, incidence, symptoms, scope, or severity of such injuries to Mrs. Oliva.
137. Defendant Global had a duty to warn Plaintiff Mrs. Oliva about the dangers of the
138. Defendant Global downplayed the potential serious and dangerous side effects of
139. The product was defective and unreasonably dangerous when it left the possession
of Defendant Global in that it contained warnings insufficient to alert Mrs. Oliva to the dangerous
risks and reactions associated with it, including, but not limited to severe infections. The particular
risks were known, or knowable in light of the generally recognized and prevailing best scientific
and medical knowledge available at the time of manufacture and distribution. Even though the
Defendant knew or should have known the risks associated with the product, specifically that their
artificial tears were contaminated with a dangerous and deadly bacterium, Defendant Global still
failed to provide warnings that accurately reflected the signs, symptoms, incident, scope, or
140. The product reached Mrs. Oliva without substantial change affecting that condition
after creation design manufacture, distribution, sale, and/or supply by Defendant Global.
141. The product was defective because the foreseeable risks of harm from the product
could have been avoided by Defendant Global by providing reasonable instructions or warnings
about the high likelihood of adverse events such as infections, pain, and damage to the eyes via
the contaminated product and the failure to provide those instruction or warnings makes the
142. Plaintiff Mrs. Oliva used the product in the manner as indicated by Defendant
Global.
22
Law Offices Grossman Roth Yaffa Cohen, P.A.
2525 Ponce de Leon Boulevard, Suite 1150, Coral Gables, Florida 33134 T 305.442.8666 F 305.285.1668
143. Plaintiff Mrs. Oliva did not have the same knowledge as Defendant Global, and no
and misrepresentations, Plaintiff Mrs. Oliva suffered permanent damage as alleged in detail below.
COUNT 14
145. The Plaintiff adopts and realleges paragraphs 1 through 49 and further alleges:
inspected, labeled, distributed, marketed, promoted, sold, and/or otherwise released into the stream
of commerce the product, and directly advertised or marketed the product to Mrs. Oliva, and
therefore had a duty to warn of the risks associated with the use of the product.
147. The product was under the control of Defendant EzriCare and was unaccompanied
accurately reflect the risk, incidence, symptoms, scope, or severity of such injuries to Mrs. Oliva.
148. Defendant EzriCare had a duty to warn Plaintiff Mrs. Oliva about the dangers of
the presence of pseudomonas aeruginosa bacteria in the contaminated EzriCare Artificial Tears
149. Defendant EzriCare downplayed the potential serious and dangerous side effects of
150. The product was defective and unreasonably dangerous when it left the possession
of Defendant EzriCare in that it contained warnings insufficient to alert Mrs. Oliva to the
dangerous risks and reactions associated with it, including, but not limited to severe infections.
The particular risks were known, or knowable in light of the generally recognized and prevailing
best scientific and medical knowledge available at the time of manufacture and distribution. Even
23
Law Offices Grossman Roth Yaffa Cohen, P.A.
2525 Ponce de Leon Boulevard, Suite 1150, Coral Gables, Florida 33134 T 305.442.8666 F 305.285.1668
though the Defendant knew or should have known the risks associated with the product,
specifically that their artificial tears were contaminated with a dangerous and deadly bacterium,
Defendant EzriCare still failed to provide warnings that accurately reflected the signs, symptoms,
151. The product reached Mrs. Oliva without substantial change affecting that condition
after creation design manufacture, distribution, sale, and/or supply by Defendant EzriCare.
152. The product was defective because the foreseeable risks of harm from the product
could have been avoided by Defendant EzriCare by providing reasonable instructions or warnings
about the high likelihood of adverse events such as infections, pain, and damage to the eyes via
the contaminated product and the failure to provide those instruction or warnings makes the
153. Plaintiff Mrs. Oliva used the product in the manner as indicated by Defendant
EzriCare.
154. Plaintiff Mrs. Oliva did not have the same knowledge as Defendant EzriCare, and
and misrepresentations, Plaintiff Mrs. Oliva suffered permanent damage as alleged in detail below.
COUNT 15
156. The Plaintiff adopts and realleges paragraphs 1 through 49 and further alleges:
inspected, labeled, distributed, marketed, promoted, sold, and/or otherwise released into the stream
of commerce the product, and directly advertised or marketed the product to Mrs. Oliva, and
therefore had a duty to warn of the risks associated with the use of the product.
24
Law Offices Grossman Roth Yaffa Cohen, P.A.
2525 Ponce de Leon Boulevard, Suite 1150, Coral Gables, Florida 33134 T 305.442.8666 F 305.285.1668
158. The product was under the control of Defendant EzriRx and was unaccompanied
accurately reflect the risk, incidence, symptoms, scope, or severity of such injuries to Mrs. Oliva.
159. Defendant EzriRx had a duty to warn Plaintiff Mrs. Oliva about the dangers of the
160. Defendant EzriRx downplayed the potential serious and dangerous side effects of
161. The product was defective and unreasonably dangerous when it left the possession
of Defendant EzriRx in that it contained warnings insufficient to alert Mrs. Oliva to the dangerous
risks and reactions associated with it, including, but not limited to severe infections. The particular
risks were known, or knowable in light of the generally recognized and prevailing best scientific
and medical knowledge available at the time of manufacture and distribution. Even though the
Defendant knew or should have known the risks associated with the product, specifically that their
artificial tears were contaminated with a dangerous and deadly bacterium, Defendant EzriRx still
failed to provide warnings that accurately reflected the signs, symptoms, incident, scope, or
162. The product reached Mrs. Oliva without substantial change affecting that condition
after creation design manufacture, distribution, sale, and/or supply by Defendant EzriRx.
163. The product was defective because the foreseeable risks of harm from the product
could have been avoided by Defendant EzriRx by providing reasonable instructions or warnings
about the high likelihood of adverse events such as infections, pain, and damage to the eyes via
the contaminated product and the failure to provide those instruction or warnings makes the
25
Law Offices Grossman Roth Yaffa Cohen, P.A.
2525 Ponce de Leon Boulevard, Suite 1150, Coral Gables, Florida 33134 T 305.442.8666 F 305.285.1668
164. Plaintiff Mrs. Oliva used the product in the manner as indicated by Defendant
EzriRx.
165. Plaintiff Mrs. Oliva did not have the same knowledge as Defendant EzriRx, and no
and misrepresentations, Plaintiff Mrs. Oliva suffered permanent damage as alleged in detail below.
COUNT 16
167. The Plaintiff adopts and realleges paragraphs 1 through 49 and further alleges:
labeled, distributed, marketed, promoted, sold, and/or otherwise released into the stream of
commerce the product, and directly advertised or marketed the product to Mrs. Oliva, and therefore
had a duty to warn of the risks associated with the use of the product.
169. The product was under the control of Defendant Aru and was unaccompanied by
appropriate warnings regarding the risk of developing severe infections. No warnings accurately
reflect the risk, incidence, symptoms, scope, or severity of such injuries to Mrs. Oliva.
170. Defendant Aru had a duty to warn Plaintiff Mrs. Oliva about the dangers of the
171. Defendant Aru downplayed the potential serious and dangerous side effects of the
172. The product was defective and unreasonably dangerous when it left the possession
of Defendant Aru in that it contained warnings insufficient to alert Mrs. Oliva to the dangerous
risks and reactions associated with it, including, but not limited to severe infections. The particular
26
Law Offices Grossman Roth Yaffa Cohen, P.A.
2525 Ponce de Leon Boulevard, Suite 1150, Coral Gables, Florida 33134 T 305.442.8666 F 305.285.1668
risks were known, or knowable in light of the generally recognized and prevailing best scientific
and medical knowledge available at the time of manufacture and distribution. Even though the
Defendant knew or should have known the risks associated with the product, specifically that their
artificial tears were contaminated with a dangerous and deadly bacterium, Defendant Aru still
failed to provide warnings that accurately reflected the signs, symptoms, incident, scope, or
173. The product reached Mrs. Oliva without substantial change affecting that condition
after creation design manufacture, distribution, sale, and/or supply by Defendant Aru.
174. The product was defective because the foreseeable risks of harm from the product
could have been avoided by Defendant Aru by providing reasonable instructions or warnings about
the high likelihood of adverse events such as infections, pain, and damage to the eyes via the
contaminated product and the failure to provide those instruction or warnings makes the product
unreasonably dangerous.
175. Plaintiff Mrs. Oliva used the product in the manner as indicated by Defendant Aru.
176. Plaintiff Mrs. Oliva did not have the same knowledge as Defendant Aru, and no
177. As a direct and proximate consequence of Defendant Aru’s actions, omissions, and
misrepresentations, Plaintiff Mrs. Oliva suffered permanent damage as alleged in detail below.
COUNT 17
178. The Plaintiff adopts and realleges paragraphs 1 through 49 and further alleges:
labeled, distributed, marketed, promoted, sold, and/or otherwise released into the stream of
27
Law Offices Grossman Roth Yaffa Cohen, P.A.
2525 Ponce de Leon Boulevard, Suite 1150, Coral Gables, Florida 33134 T 305.442.8666 F 305.285.1668
commerce the product, and directly advertised or marketed the product to Mrs. Oliva, and therefore
had a duty to warn of the risks associated with the use of the product.
180. The product was under the control of Defendant Leon and was unaccompanied by
appropriate warnings regarding the risk of developing severe infections. No warnings accurately
reflect the risk, incidence, symptoms, scope, or severity of such injuries to Mrs. Oliva.
181. Defendant Leon had a duty to warn Plaintiff Mrs. Oliva about the dangers of the
182. Defendant Leon downplayed the potential serious and dangerous side effects of the
183. The product was defective and unreasonably dangerous when it left the possession
of Defendant Leon in that it contained warnings insufficient to alert Mrs. Oliva to the dangerous
risks and reactions associated with it, including, but not limited to severe infections. The particular
risks were known, or knowable in light of the generally recognized and prevailing best scientific
and medical knowledge available at the time of manufacture and distribution. Even though the
Defendant knew or should have known the risks associated with the product, specifically that their
artificial tears were contaminated with a dangerous and deadly bacterium, Defendant Leon still
failed to provide warnings that accurately reflected the signs, symptoms, incident, scope, or
184. The product reached Mrs. Oliva without substantial change affecting that condition
after creation design manufacture, distribution, sale, and/or supply by Defendant Leon.
185. The product was defective because the foreseeable risks of harm from the product
could have been avoided by Defendant Leon by providing reasonable instructions or warnings
about the high likelihood of adverse events such as infections, pain, and damage to the eyes via
28
Law Offices Grossman Roth Yaffa Cohen, P.A.
2525 Ponce de Leon Boulevard, Suite 1150, Coral Gables, Florida 33134 T 305.442.8666 F 305.285.1668
the contaminated product and the failure to provide those instruction or warnings makes the
186. Plaintiff Mrs. Oliva used the product in the manner as indicated by Defendant Leon.
187. Plaintiff Mrs. Oliva did not have the same knowledge as Defendant Leon, and no
and misrepresentations, Plaintiff Mrs. Oliva suffered permanent damage as alleged in detail below.
COUNT 18
189. The Plaintiff adopts and realleges paragraphs 1 through 49 and further alleges:
inspected, labeled, distributed, marketed, promoted, sold, and/or otherwise released into the stream
of commerce the product, and directly advertised or marketed the product to Mrs. Oliva, and
therefore had a duty to warn of the risks associated with the use of the product.
191. The product was under the control of Defendant HealthSpring and was
warnings accurately reflect the risk, incidence, symptoms, scope, or severity of such injuries to
Mrs. Oliva.
192. Defendant HealthSpring had a duty to warn Plaintiff Mrs. Oliva about the dangers
of the presence of pseudomonas aeruginosa bacteria in the contaminated EzriCare Artificial Tears
193. Defendant HealthSpring downplayed the potential serious and dangerous side
29
Law Offices Grossman Roth Yaffa Cohen, P.A.
2525 Ponce de Leon Boulevard, Suite 1150, Coral Gables, Florida 33134 T 305.442.8666 F 305.285.1668
194. The product was defective and unreasonably dangerous when it left the possession
of Defendant HealthSpring in that it contained warnings insufficient to alert Mrs. Oliva to the
dangerous risks and reactions associated with it, including, but not limited to severe infections.
The particular risks were known, or knowable in light of the generally recognized and prevailing
best scientific and medical knowledge available at the time of manufacture and distribution. Even
though the Defendant knew or should have known the risks associated with the product,
specifically that their artificial tears were contaminated with a dangerous and deadly bacterium,
Defendant HealthSpring still failed to provide warnings that accurately reflected the signs,
symptoms, incident, scope, or severity of the risks associated with the product.
195. The product reached Mrs. Oliva without substantial change affecting that condition
after creation design manufacture, distribution, sale, and/or supply by Defendant HealthSpring.
196. The product was defective because the foreseeable risks of harm from the product
warnings about the high likelihood of adverse events such as infections, pain, and damage to the
eyes via the contaminated product and the failure to provide those instruction or warnings makes
197. Plaintiff Mrs. Oliva used the product in the manner as indicated by Defendant
HealthSpring.
198. Plaintiff Mrs. Oliva did not have the same knowledge as Defendant HealthSpring,
omissions, and misrepresentations, Plaintiff Mrs. Oliva suffered permanent damage as alleged in
detail below.
COUNT 19
30
Law Offices Grossman Roth Yaffa Cohen, P.A.
2525 Ponce de Leon Boulevard, Suite 1150, Coral Gables, Florida 33134 T 305.442.8666 F 305.285.1668
CLAIM AGAINST DEFENDANT GLOBAL PHARMA HEALTHCARE PRIVATE LTD.
NEGLIGENCE - PRODUCT LIABILITY
200. The Plaintiff adopts and realleges paragraphs 1 through 49 and further alleges:
inspected, labeled, distributed, marketed, promoted, sold, and/or otherwise released into the stream
of commerce the product, and directly advertised or marketed the product to Mrs. Oliva, and
therefore had a duty of reasonable care to Mrs. Oliva, which is the care that a reasonably careful
designer, manufacturer, seller, importer, distributor, and/or supplier would use under like
circumstances.
202. Notwithstanding this duty of care, Defendant Global breached its duty of care to
a. Negligently failing to manufacture a product safe for consumers that was not
adulterated or contaminated with, pseudomonas aeruginosa, a dangerous and
rare pathogen;
d. Negligently failing to comply with all statutory and regulatory provisions that
pertained or applied to the manufacture, distribution, storage, labeling and sale
of the EzriCare Artificial Tears product, including all applicable local, state,
and federal health and safety regulations;
31
Law Offices Grossman Roth Yaffa Cohen, P.A.
2525 Ponce de Leon Boulevard, Suite 1150, Coral Gables, Florida 33134 T 305.442.8666 F 305.285.1668
g. Negligently failing to thoroughly and regularly inspect its facility to determine
whether it was reasonably safe and appropriate for manufacturing and preparing
EzriCare Artificial Tears multidose bottles in bulk;
i. Negligently failing to conduct appropriate due diligence on its sources for the
product and the product’s component parts;
m. Negligently failing to warn Plaintiff Mrs. Oliva of the serious and dangerous
side effects of the contaminated product to encourage sales of the product;
and misrepresentations, Plaintiff Mrs. Oliva suffered permanent damage, as described in detail
below.
COUNT 20
204. The Plaintiff adopts and realleges paragraphs 1 through 49 and further alleges:
inspected, labeled, distributed, marketed, promoted, sold, and/or otherwise released into the stream
32
Law Offices Grossman Roth Yaffa Cohen, P.A.
2525 Ponce de Leon Boulevard, Suite 1150, Coral Gables, Florida 33134 T 305.442.8666 F 305.285.1668
of commerce the product, and directly advertised or marketed the product to Mrs. Oliva, and
therefore had a duty of reasonable care to Mrs. Oliva, which is the care that a reasonably careful
designer, manufacturer, seller, importer, distributor, and/or supplier would use under like
circumstances.
206. Notwithstanding this duty of care, Defendant EzriCare breached its duty of care to
a. Negligently failing to manufacture a product safe for consumers that was not
adulterated or contaminated with, pseudomonas aeruginosa, a dangerous and
rare pathogen;
d. Negligently failing to comply with all statutory and regulatory provisions that
pertained or applied to the manufacture, distribution, storage, labeling and sale
of the EzriCare Artificial Tears product, including all applicable local, state,
and federal health and safety regulations;
i. Negligently failing to conduct appropriate due diligence on its sources for the
product and the product’s component parts;
33
Law Offices Grossman Roth Yaffa Cohen, P.A.
2525 Ponce de Leon Boulevard, Suite 1150, Coral Gables, Florida 33134 T 305.442.8666 F 305.285.1668
j. Negligently failing to implement and enforce appropriate controls to ensure the
safety and sterility of the product;
m. Negligently failing to warn Plaintiff Mrs. Oliva of the serious and dangerous
side effects of the contaminated product to encourage sales of the product;
and misrepresentations, Plaintiff Mrs. Oliva suffered permanent damage, as described in detail
below.
COUNT 21
208. The Plaintiff adopts and realleges paragraphs 1 through 49 and further alleges:
inspected, labeled, distributed, marketed, promoted, sold, and/or otherwise released into the stream
of commerce the product, and directly advertised or marketed the product to Mrs. Oliva, and
therefore had a duty of reasonable care to Mrs. Oliva, which is the care that a reasonably careful
designer, manufacturer, seller, importer, distributor, and/or supplier would use under like
circumstances.
34
Law Offices Grossman Roth Yaffa Cohen, P.A.
2525 Ponce de Leon Boulevard, Suite 1150, Coral Gables, Florida 33134 T 305.442.8666 F 305.285.1668
210. Notwithstanding this duty of care, Defendant EzriRx breached its duty of care to
a. Negligently failing to manufacture a product safe for consumers that was not
adulterated or contaminated with, pseudomonas aeruginosa, a dangerous and
rare pathogen;
d. Negligently failing to comply with all statutory and regulatory provisions that
pertained or applied to the manufacture, distribution, storage, labeling and sale
of the EzriCare Artificial Tears product, including all applicable local, state,
and federal health and safety regulations;
i. Negligently failing to conduct appropriate due diligence on its sources for the
product and the product’s component parts;
35
Law Offices Grossman Roth Yaffa Cohen, P.A.
2525 Ponce de Leon Boulevard, Suite 1150, Coral Gables, Florida 33134 T 305.442.8666 F 305.285.1668
l. Negligently failing to conduct appropriate follow up research on patients to
determine safety of the product;
m. Negligently failing to warn Plaintiff Mrs. Oliva of the serious and dangerous
side effects of the contaminated product to encourage sales of the product;
and misrepresentations, Plaintiff Mrs. Oliva suffered permanent damage as described in detail
below.
COUNT 22
212. The Plaintiff adopts and realleges paragraphs 1 through 49 and further alleges:
labeled, distributed, marketed, promoted, sold, and/or otherwise released into the stream of
commerce the product, and directly advertised or marketed the product to Mrs. Oliva, and therefore
had a duty of reasonable care to Mrs. Oliva, which is the care that a reasonably careful designer,
manufacturer, seller, importer, distributor, and/or supplier would use under like circumstances.
214. Notwithstanding this duty of care, Defendant Aru breached its duty of care to Mrs.
a. Negligently failing to manufacture a product safe for consumers that was not
adulterated or contaminated with, pseudomonas aeruginosa, a dangerous and
rare pathogen;
36
Law Offices Grossman Roth Yaffa Cohen, P.A.
2525 Ponce de Leon Boulevard, Suite 1150, Coral Gables, Florida 33134 T 305.442.8666 F 305.285.1668
employees of its agents or subcontractors, engaged in the preparation of
EzriCare Artificial Tears, to ensure compliance with Defendant’s operating
standards;
d. Negligently failing to comply with all statutory and regulatory provisions that
pertained or applied to the manufacture, distribution, storage, labeling and sale
of the EzriCare Artificial Tears product, including all applicable local, state,
and federal health and safety regulations;
i. Negligently failing to conduct appropriate due diligence on its sources for the
product and the product’s component parts;
m. Negligently failing to warn Plaintiff Mrs. Oliva of the serious and dangerous
side effects of the contaminated product to encourage sales of the product;
37
Law Offices Grossman Roth Yaffa Cohen, P.A.
2525 Ponce de Leon Boulevard, Suite 1150, Coral Gables, Florida 33134 T 305.442.8666 F 305.285.1668
product to Mrs. Oliva;
215. As a direct and proximate consequence of Defendant Aru’s actions, omissions, and
misrepresentations, Plaintiff Mrs. Oliva suffered permanent damage, as described in detail below.
COUNT 23
216. The Plaintiff adopts and realleges paragraphs 1 through 49 and further alleges:
labeled, distributed, marketed, promoted, sold, and/or otherwise released into the stream of
commerce the product, and directly advertised or marketed the product to Mrs. Oliva, and therefore
had a duty of reasonable care to Mrs. Oliva, which is the care that a reasonably careful designer,
manufacturer, seller, importer, distributor, and/or supplier would use under like circumstances.
218. Notwithstanding this duty of care, Defendant Leon breached its duty of care to Mrs.
a. Negligently failing to manufacture a product safe for consumers that was not
adulterated or contaminated with, pseudomonas aeruginosa, a dangerous and
rare pathogen;
38
Law Offices Grossman Roth Yaffa Cohen, P.A.
2525 Ponce de Leon Boulevard, Suite 1150, Coral Gables, Florida 33134 T 305.442.8666 F 305.285.1668
d. Negligently failing to comply with all statutory and regulatory provisions that
pertained or applied to the manufacture, distribution, storage, labeling and sale
of the EzriCare Artificial Tears product, including all applicable local, state,
and federal health and safety regulations;
i. Negligently failing to conduct appropriate due diligence on its sources for the
product and the product’s component parts;
m. Negligently failing to warn Plaintiff Mrs. Oliva of the serious and dangerous
side effects of the contaminated product to encourage sales of the product;
39
Law Offices Grossman Roth Yaffa Cohen, P.A.
2525 Ponce de Leon Boulevard, Suite 1150, Coral Gables, Florida 33134 T 305.442.8666 F 305.285.1668
and misrepresentations, Plaintiff Mrs. Oliva suffered permanent damage, as described in detail
below.
COUNT 24
220. The Plaintiff adopts and realleges paragraphs 1 through 49 and further alleges:
inspected, labeled, distributed, marketed, promoted, sold, and/or otherwise released into the stream
of commerce the product, and directly advertised or marketed the product to Mrs. Oliva, and
therefore had a duty of reasonable care to Mrs. Oliva, which is the care that a reasonably careful
designer, manufacturer, seller, importer, distributor, and/or supplier would use under like
circumstances.
222. Notwithstanding this duty of care, Defendant HealthSpring breached its duty of
a. Negligently failing to manufacture a product safe for consumers that was not
adulterated or contaminated with, pseudomonas aeruginosa, a dangerous and
rare pathogen;
d. Negligently failing to comply with all statutory and regulatory provisions that
pertained or applied to the manufacture, distribution, storage, labeling and sale
of the EzriCare Artificial Tears product, including all applicable local, state,
and federal health and safety regulations;
40
Law Offices Grossman Roth Yaffa Cohen, P.A.
2525 Ponce de Leon Boulevard, Suite 1150, Coral Gables, Florida 33134 T 305.442.8666 F 305.285.1668
e. Negligently violating federal, state, and local safety regulations in its
manufacturing, distribution and sale of the contaminated EzriCare Artificial
Tears product;
i. Negligently failing to conduct appropriate due diligence on its sources for the
product and the product’s component parts;
m. Negligently failing to warn Plaintiff Mrs. Oliva of the serious and dangerous
side effects of the contaminated product to encourage sales of the product;
omissions, and misrepresentations, Plaintiff Mrs. Oliva suffered permanent damage, as described
in detail below.
41
Law Offices Grossman Roth Yaffa Cohen, P.A.
2525 Ponce de Leon Boulevard, Suite 1150, Coral Gables, Florida 33134 T 305.442.8666 F 305.285.1668
COUNT 25
224. The Plaintiff adopts and realleges paragraphs 1 through 49 and further alleges:
225. The product inspected, distributed, marketed, promoted, sold, supplied, and
otherwise released into the stream of commerce by Defendant Global was defective because it did
not conform to representations of fact made by Defendant Global, orally and in writing, through
its employees and agents, in connection with the transaction on which Plaintiff Mrs. Oliva relied
226. Defendant Global represented the fact that the EzriCare Artificial Tears were safe,
fit for the purposes intended, that they were of merchantable quality, and that they did not pose
significant and dangerous health risks. Moreover, the labeling on the EzriCare Artificial Tears
product represents that the use of these artificial tears serves to protect the eye from dryness and/or
irritation and that the product is safe for use in the consumer’s eye.
product as being safe, sterile and not posing serious health risks.
promise that the product is safe to be used in one’s eyes requires safeguards not taken by Defendant
229. Defendant Global breached these express warranties because the EzriCare
Artificial Tears product was not safe. Instead, the contaminated product poses serious and
dangerous health risks because multiple lots across the country were contaminated with
230. Defendant Global knew or should have known that the product did not conform to
42
Law Offices Grossman Roth Yaffa Cohen, P.A.
2525 Ponce de Leon Boulevard, Suite 1150, Coral Gables, Florida 33134 T 305.442.8666 F 305.285.1668
its express warranties and representations and that, in fact, it was contaminated with a deadly
231. Defendant Global received notice of the breach of warranty when it became aware
of the CDC’s ongoing investigation and the reported outbreak of pseudomonas aeruginosa
232. As a direct and proximate cause of the breach of warranty alleged, Plaintiff Mrs.
COUNT 26
233. The Plaintiff adopts and realleges paragraphs 1 through 49 and further alleges:
234. The product inspected, distributed, marketed, promoted, sold, supplied, and
otherwise released into the stream of commerce by Defendant EzriCare was defective because it
did not conform to representations of fact made by Defendant EzriCare, orally and in writing,
through its employees and agents, in connection with the transaction on which Plaintiff Mrs. Oliva
235. Defendant EzriCare represented the fact that the EzriCare Artificial Tears were
safe, fit for the purposes intended, that they were of merchantable quality, and that they did not
pose significant and dangerous health risks. Moreover, the labeling on the EzriCare Artificial Tears
product represents that the use of these artificial tears serves to protect the eye from dryness and/or
irritation and that the product is safe for use in the consumer’s eye.
product as being safe, sterile and not posing serious health risks.
promise that the product is safe to be used in one’s eyes requires safeguards not taken by Defendant
43
Law Offices Grossman Roth Yaffa Cohen, P.A.
2525 Ponce de Leon Boulevard, Suite 1150, Coral Gables, Florida 33134 T 305.442.8666 F 305.285.1668
EzriCare and expertise not possessed by Defendant EzriCare.
238. Defendant EzriCare breached these express warranties because the EzriCare
Artificial Tears product was not safe. Instead, the contaminated product poses serious and
dangerous health risks because multiple lots across the country were contaminated with
239. Defendant EzriCare knew or should have known that the product did not conform
to its express warranties and representations and that, in fact, it was contaminated with a deadly
240. Defendant EzriCare received notice of the breach of warranty when it became
aware of the CDC’s ongoing investigation and the reported outbreak of pseudomonas aeruginosa
241. As a direct and proximate cause of the breach of warranty alleged, Plaintiff Mrs.
COUNT 27
242. The Plaintiff adopts and realleges paragraphs 1 through 49 and further alleges:
243. The product inspected, distributed, marketed, promoted, sold, supplied, and
otherwise released into the stream of commerce by Defendant EzriRx was defective because it did
not conform to representations of fact made by Defendant EzriRx, orally and in writing, through
its employees and agents, in connection with the transaction on which Plaintiff Mrs. Oliva relied
244. Defendant EzriRx represented the fact that the EzriCare Artificial Tears were safe,
fit for the purposes intended, that they were of merchantable quality, and that they did not pose
significant and dangerous health risks. Moreover, the labeling on the EzriCare Artificial Tears
44
Law Offices Grossman Roth Yaffa Cohen, P.A.
2525 Ponce de Leon Boulevard, Suite 1150, Coral Gables, Florida 33134 T 305.442.8666 F 305.285.1668
product represents that the use of these artificial tears serves to protect the eye from dryness and/or
irritation and that the product is safe for use in the consumer’s eye.
product as being safe, sterile and not posing serious health risks.
promise that the product is safe to be used in one’s eyes requires safeguards not taken by Defendant
247. Defendant EzriRx breached these express warranties because the EzriCare
Artificial Tears product was not safe. Instead, the contaminated product poses serious and
dangerous health risks because multiple lots across the country were contaminated with
248. Defendant EzriRx knew or should have known that the product did not conform to
its express warranties and representations and that, in fact, it was contaminated with a deadly
249. Defendant EzriRx received notice of the breach of warranty when it became aware
of the CDC’s ongoing investigation and the reported outbreak of pseudomonas aeruginosa
250. As a direct and proximate cause of the breach of warranty alleged, Plaintiff Mrs.
COUNT 28
251. The Plaintiff adopts and realleges paragraphs 1 through 49 and further alleges:
252. The product inspected, distributed, marketed, promoted, sold, supplied, and
otherwise released into the stream of commerce by Defendant Aru was defective because it did
45
Law Offices Grossman Roth Yaffa Cohen, P.A.
2525 Ponce de Leon Boulevard, Suite 1150, Coral Gables, Florida 33134 T 305.442.8666 F 305.285.1668
not conform to representations of fact made by Defendant Aru, orally and in writing, through its
employees and agents, in connection with the transaction on which Plaintiff Mrs. Oliva relied in
253. Defendant Aru represented the fact that the EzriCare Artificial Tears were safe, fit
for the purposes intended, that they were of merchantable quality, and that they did not pose
significant and dangerous health risks. Moreover, the labeling on the EzriCare Artificial Tears
product represents that the use of these artificial tears serves to protect the eye from dryness and/or
irritation and that the product is safe for use in the consumer’s eye.
product as being safe, sterile and not posing serious health risks.
promise that the product is safe to be used in one’s eyes requires safeguards not taken by Defendant
256. Defendant Aru breached these express warranties because the EzriCare Artificial
Tears product was not safe. Instead, the contaminated product poses serious and dangerous health
risks because multiple lots across the country were contaminated with pseudomonas aeruginosa—
257. Defendant Aru knew or should have known that the product did not conform to its
express warranties and representations and that, in fact, it was contaminated with a deadly
258. Defendant Aru received notice of the breach of warranty when it became aware of
the CDC’s ongoing investigation and the reported outbreak of pseudomonas aeruginosa associated
259. As a direct and proximate cause of the breach of warranty alleged, Plaintiff Mrs.
46
Law Offices Grossman Roth Yaffa Cohen, P.A.
2525 Ponce de Leon Boulevard, Suite 1150, Coral Gables, Florida 33134 T 305.442.8666 F 305.285.1668
Oliva sustained serious permanent damages as alleged in detail below.
COUNT 29
260. The Plaintiff adopts and realleges paragraphs 1 through 49 and further alleges:
261. The product inspected, distributed, marketed, promoted, sold, supplied, and
otherwise released into the stream of commerce by Defendant Leon was defective because it did
not conform to representations of fact made by Defendant Leon, orally and in writing, through its
employees and agents, in connection with the transaction on which Plaintiff Mrs. Oliva relied in
262. Defendant Leon represented the fact that the EzriCare Artificial Tears were safe, fit
for the purposes intended, that they were of merchantable quality, and that they did not pose
significant and dangerous health risks. Moreover, the labeling on the EzriCare Artificial Tears
product represents that the use of these artificial tears serves to protect the eye from dryness and/or
irritation and that the product is safe for use in the consumer’s eye.
product as being safe, sterile and not posing serious health risks.
promise that the product is safe to be used in one’s eyes requires safeguards not taken by Defendant
265. Defendant Leon breached these express warranties because the EzriCare Artificial
Tears product was not safe. Instead, the contaminated product poses serious and dangerous health
risks because multiple lots across the country were contaminated with pseudomonas aeruginosa—
266. Defendant Leon knew or should have known that the product did not conform to
47
Law Offices Grossman Roth Yaffa Cohen, P.A.
2525 Ponce de Leon Boulevard, Suite 1150, Coral Gables, Florida 33134 T 305.442.8666 F 305.285.1668
its express warranties and representations and that, in fact, it was contaminated with a deadly
267. Defendant Leon received notice of the breach of warranty when it became aware
of the CDC’s ongoing investigation and the reported outbreak of pseudomonas aeruginosa
268. As a direct and proximate cause of the breach of warranty alleged, Plaintiff Mrs.
COUNT 30
269. The Plaintiff adopts and realleges paragraphs 1 through 49 and further alleges:
270. The product inspected, distributed, marketed, promoted, sold, supplied, and
otherwise released into the stream of commerce by Defendant HealthSpring was defective because
it did not conform to representations of fact made by Defendant HealthSpring, orally and in
writing, through its employees and agents, in connection with the transaction on which Plaintiff
271. Defendant HealthSpring represented the fact that the EzriCare Artificial Tears were
safe, fit for the purposes intended, that they were of merchantable quality, and that they did not
pose significant and dangerous health risks. Moreover, the labeling on the EzriCare Artificial Tears
product represents that the use of these artificial tears serves to protect the eye from dryness and/or
irritation and that the product is safe for use in the consumer’s eye.
product as being safe, sterile and not posing serious health risks.
48
Law Offices Grossman Roth Yaffa Cohen, P.A.
2525 Ponce de Leon Boulevard, Suite 1150, Coral Gables, Florida 33134 T 305.442.8666 F 305.285.1668
promise that the product is safe to be used in one’s eyes requires safeguards not taken by Defendant
274. Defendant HealthSpring breached these express warranties because the EzriCare
Artificial Tears product was not safe. Instead, the contaminated product poses serious and
dangerous health risks because multiple lots across the country were contaminated with
275. Defendant HealthSpring knew or should have known that the product did not
conform to its express warranties and representations and that, in fact, it was contaminated with a
276. Defendant HealthSpring received notice of the breach of warranty when it became
aware of the CDC’s ongoing investigation and the reported outbreak of pseudomonas aeruginosa
277. As a direct and proximate cause of the breach of warranty alleged, Plaintiff Mrs.
COUNT 31
278. The Plaintiff adopts and realleges paragraphs 1 through 49 and further alleges:
279. The product was defective because it was not reasonably fit for both the uses
280. As a matter of fact, the product is not fit for use as a product for any purpose.
281. The product was defective for the use intended by Defendant Global, namely, to
282. Privity of contract exists between Plaintiff Mrs. Oliva and Defendant Global.
283. Plaintiff Mrs. Oliva justifiably relied on Defendant Global’s representations about
49
Law Offices Grossman Roth Yaffa Cohen, P.A.
2525 Ponce de Leon Boulevard, Suite 1150, Coral Gables, Florida 33134 T 305.442.8666 F 305.285.1668
the product when agreeing to use the product to treat her dry eyes.
284. Defendant Global received notice of the breach of warranty when it was made
aware of the CDC’s ongoing investigation and the reported outbreak of pseudomonas aeruginosa
285. As a direct and proximate cause of the breach of warranty alleged, Plaintiff Mrs.
COUNT 32
286. The Plaintiff adopts and realleges paragraphs 1 through 49 and further alleges:
287. The product was defective because it was not reasonably fit for both the uses
288. As a matter of fact, the product is not fit for use as a product for any purpose.
289. The product was defective for the use intended by Defendant EzriCare, namely, to
290. Privity of contract exists between Plaintiff Mrs. Oliva and Defendant EzriCare.
about the product when agreeing to use the product to treat her dry eyes.
292. Defendant EzriCare received notice of the breach of warranty when it was made
aware of the CDC’s ongoing investigation and the reported outbreak of pseudomonas aeruginosa
293. As a direct and proximate cause of the breach of warranty alleged, Plaintiff Mrs.
COUNT 33
50
Law Offices Grossman Roth Yaffa Cohen, P.A.
2525 Ponce de Leon Boulevard, Suite 1150, Coral Gables, Florida 33134 T 305.442.8666 F 305.285.1668
IMPLIED WARRANTY OF MERCHANTABILITY
294. The Plaintiff adopts and realleges paragraphs 1 through 49 and further alleges:
295. The product was defective because it was not reasonably fit for both the uses
296. As a matter of fact, the product is not fit for use as a product for any purpose.
297. The product was defective for the use intended by Defendant EzriRx, namely, to
298. Privity of contract exists between Plaintiff Mrs. Oliva and Defendant EzriRx.
299. Plaintiff Mrs. Oliva justifiably relied on Defendant EzriRx’s representations about
the product when agreeing to use the product to treat her dry eyes.
300. Defendant EzriRx received notice of the breach of warranty when it was made
aware of the CDC’s ongoing investigation and the reported outbreak of pseudomonas aeruginosa
301. As a direct and proximate cause of the breach of warranty alleged, Plaintiff Mrs.
COUNT 34
302. The Plaintiff adopts and realleges paragraphs 1 through 49 and further alleges:
303. The product was defective because it was not reasonably fit for both the uses
304. As a matter of fact, the product is not fit for use as a product for any purpose.
305. The product was defective for the use intended by Defendant Aru, namely, to
51
Law Offices Grossman Roth Yaffa Cohen, P.A.
2525 Ponce de Leon Boulevard, Suite 1150, Coral Gables, Florida 33134 T 305.442.8666 F 305.285.1668
306. Privity of contract exists between Plaintiff Mrs. Oliva and Defendant Aru.
307. Plaintiff Mrs. Oliva justifiably relied on Defendant Aru’s representations about the
product when agreeing to use the product to treat her dry eyes.
308. Defendant Aru received notice of the breach of warranty when it was made aware
of the CDC’s ongoing investigation and the reported outbreak of pseudomonas aeruginosa
309. As a direct and proximate cause of the breach of warranty alleged, Plaintiff Mrs.
COUNT 35
310. The Plaintiff adopts and realleges paragraphs 1 through 49 and further alleges:
311. The product was defective because it was not reasonably fit for both the uses
312. As a matter of fact, the product is not fit for use as a product for any purpose.
313. The product was defective for the use intended by Defendant Leon, namely, to
314. Privity of contract exists between Plaintiff Mrs. Oliva and Defendant Leon.
315. Plaintiff Mrs. Oliva justifiably relied on Defendant Leon’s representations about
the product when agreeing to use the product to treat her dry eyes.
316. Defendant Leon received notice of the breach of warranty when it was made aware
of the CDC’s ongoing investigation and the reported outbreak of pseudomonas aeruginosa
317. As a direct and proximate cause of the breach of warranty alleged, Plaintiff Mrs.
52
Law Offices Grossman Roth Yaffa Cohen, P.A.
2525 Ponce de Leon Boulevard, Suite 1150, Coral Gables, Florida 33134 T 305.442.8666 F 305.285.1668
COUNT 36
318. The Plaintiff adopts and realleges paragraphs 1 through 49 and further alleges:
319. The product was defective because it was not reasonably fit for both the uses
320. As a matter of fact, the product is not fit for use as a product for any purpose.
321. The product was defective for the use intended by Defendant HealthSpring, namely,
322. Privity of contract exists between Plaintiff Mrs. Oliva and Defendant HealthSpring.
about the product when agreeing to use the product to treat her dry eyes.
324. Defendant HealthSpring received notice of the breach of warranty when it was
made aware of the CDC’s ongoing investigation and the reported outbreak of pseudomonas
325. As a direct and proximate cause of the breach of warranty alleged, Plaintiff Mrs.
COUNT 37
326. The Plaintiff adopts and realleges paragraphs 1 through 49 and further alleges:
327. The product was defective because it was not reasonably fit for the specific purpose
for which Defendant Global knowingly sold the product and for which, in reliance on the judgment
53
Law Offices Grossman Roth Yaffa Cohen, P.A.
2525 Ponce de Leon Boulevard, Suite 1150, Coral Gables, Florida 33134 T 305.442.8666 F 305.285.1668
promoted EzriCare Artificial Tears for the specific purpose of protecting and relieving consumers’
329. Privity of contract exists between Plaintiff Mrs. Oliva and Defendant Global.
330. The product did not treat the Plaintiff’s eye dryness or irritation. Rather, the product
introduced a dangerous pathogen into Plaintiff’s eyes and forced her to surgically remove an eye
331. Defendant Global received notice of the breach of warranty when it learned of the
CDC’s ongoing investigation and the reported outbreak of pseudomonas aeruginosa associated
332. As a direct and proximate cause of the breach of warranty alleged, Plaintiff Mrs.
COUNT 38
333. The Plaintiff adopts and realleges paragraphs 1 through 49 and further alleges:
334. The product was defective because it was not reasonably fit for the specific purpose
for which Defendant EzriCare knowingly sold the product and for which, in reliance on the
judgment of Defendant EzriCare, the Plaintiff Mrs. Oliva purchased the product.
promoted EzriCare Artificial Tears for the specific purpose of protecting and relieving consumers’
336. Privity of contract exists between Plaintiff Mrs. Oliva and Defendant EzriCare.
337. The product did not treat the Plaintiff’s eye dryness or irritation. Rather, the product
introduced a dangerous pathogen into Plaintiff’s eyes and forced her to surgically remove an eye
54
Law Offices Grossman Roth Yaffa Cohen, P.A.
2525 Ponce de Leon Boulevard, Suite 1150, Coral Gables, Florida 33134 T 305.442.8666 F 305.285.1668
to avoid a life-threatening systematic infection.
338. Defendant EzriCare received notice of the breach of warranty when it learned of
the CDC’s ongoing investigation and the reported outbreak of pseudomonas aeruginosa associated
339. As a direct and proximate cause of the breach of warranty alleged, Plaintiff Mrs.
COUNT 39
340. The Plaintiff adopts and realleges paragraphs 1 through 49 and further alleges:
341. The product was defective because it was not reasonably fit for the specific purpose
for which Defendant EzriRx knowingly sold the product and for which, in reliance on the judgment
promoted EzriCare Artificial Tears for the specific purpose of protecting and relieving consumers’
343. Privity of contract exists between Plaintiff Mrs. Oliva and Defendant EzriRx.
344. The product did not treat the Plaintiff’s eye dryness or irritation. Rather, the product
introduced a dangerous pathogen into Plaintiff’s eyes and forced her to surgically remove an eye
345. Defendant EzriRx received notice of the breach of warranty when it learned of the
CDC’s ongoing investigation and the reported outbreak of pseudomonas aeruginosa associated
346. As a direct and proximate cause of the breach of warranty alleged, Plaintiff Mrs.
55
Law Offices Grossman Roth Yaffa Cohen, P.A.
2525 Ponce de Leon Boulevard, Suite 1150, Coral Gables, Florida 33134 T 305.442.8666 F 305.285.1668
COUNT 40
347. The Plaintiff adopts and realleges paragraphs 1 through 49 and further alleges:
348. The product was defective because it was not reasonably fit for the specific purpose
for which Defendant Aru knowingly sold the product and for which, in reliance on the judgment
promoted EzriCare Artificial Tears for the specific purpose of protecting and relieving consumers’
350. Privity of contract exists between Plaintiff Mrs. Oliva and Defendant Aru.
351. The product did not treat the Plaintiff’s eye dryness or irritation. Rather, the product
introduced a dangerous pathogen into Plaintiff’s eyes and forced her to surgically remove her
352. Defendant Aru received notice of the breach of warranty when it learned of the
CDC’s ongoing investigation and the reported outbreak of pseudomonas aeruginosa associated
353. As a direct and proximate cause of the breach of warranty alleged, Plaintiff Mrs.
COUNT 41
354. The Plaintiff adopts and realleges paragraphs 1 through 49 and further alleges:
355. The product was defective because it was not reasonably fit for the specific purpose
for which Defendant Leon knowingly sold the product and for which, in reliance on the judgment
56
Law Offices Grossman Roth Yaffa Cohen, P.A.
2525 Ponce de Leon Boulevard, Suite 1150, Coral Gables, Florida 33134 T 305.442.8666 F 305.285.1668
of Defendant Leon, the Plaintiff Mrs. Oliva purchased the product.
promoted EzriCare Artificial Tears for the specific purpose of protecting and relieving consumers’
357. Privity of contract exists between Plaintiff Mrs. Oliva and Defendant Leon.
358. The product did not treat the Plaintiff’s eye dryness or irritation. Rather, the product
introduced a dangerous pathogen into Plaintiff’s eyes and forced her to surgically remove her
359. Defendant Leon received notice of the breach of warranty when it learned of the
CDC’s ongoing investigation and the reported outbreak of pseudomonas aeruginosa associated
360. As a direct and proximate cause of the breach of warranty alleged, Plaintiff Mrs.
COUNT 42
361. The Plaintiff adopts and realleges paragraphs 1 through 49 and further alleges:
362. The product was defective because it was not reasonably fit for the specific purpose
for which Defendant HealthSpring knowingly sold the product and for which, in reliance on the
judgment of Defendant HealthSpring, the Plaintiff Mrs. Oliva purchased the product.
and/or promoted EzriCare Artificial Tears for the specific purpose of protecting and relieving
364. Privity of contract exists between Plaintiff Mrs. Oliva and Defendant HealthSpring.
57
Law Offices Grossman Roth Yaffa Cohen, P.A.
2525 Ponce de Leon Boulevard, Suite 1150, Coral Gables, Florida 33134 T 305.442.8666 F 305.285.1668
365. The product did not treat the Plaintiff’s eye dryness or irritation. Rather, the product
introduced a dangerous pathogen into Plaintiff’s eyes and forced her to surgically remove her
366. Defendant HealthSpring received notice of the breach of warranty when it learned
of the CDC’s ongoing investigation and the reported outbreak of pseudomonas aeruginosa
367. As a direct and proximate cause of the breach of warranty alleged, Plaintiff Mrs.
368. The Plaintiff, as a direct and proximate result of the Defendants alleged above, has
in the past and will in the future continue to suffer the following damages:
a. Bodily injury;
c. Disability;
d. Disfigurement;
h. Warranty damages;
k. Mental distress.
58
Law Offices Grossman Roth Yaffa Cohen, P.A.
2525 Ponce de Leon Boulevard, Suite 1150, Coral Gables, Florida 33134 T 305.442.8666 F 305.285.1668
WHEREFORE, Plaintiff Clara Elvira Oliva demands judgment against Defendants for
damages in an amount in excess of the jurisdictional limits of this Court exclusive of interest and
costs, and all such other relief as the Court deems just and proper.
369. The Plaintiff demands trial by jury of all issues triable as of right.
59
Law Offices Grossman Roth Yaffa Cohen, P.A.
2525 Ponce de Leon Boulevard, Suite 1150, Coral Gables, Florida 33134 T 305.442.8666 F 305.285.1668