SOUTHEAST TEXAS RECORD

MARSHALL -- Another Texas suit alleging Zicam, an over-the-counter cold remedy, has caused its user to suffer partial loss of the sense of smell was recently filed in federal court.

Last week, the Record reported that an East Texas woman claimed makers of Zicam caused her to lose her sense of smell.

Now the same attorney, Laureen F. Bagley of Longview, has filed a suit on behalf of Robert Echols against Matrixx Initiatives July 10 in U.S. District Court, Marshall Division.

Suffering from a cold, Robert Echols, a Gregg County resident, purchased the homeopathic remedy Zicam Cold Remedy Nasal Gel. After using the product, Echols says he felt an intense stinging and burning sensation in his nose and subsequently, lost all sense of smell.

Echols says in his suit his sense of smell has only partially returned.

According to the court documents, Zicam Cold Remedy Nasal Gel delivers zinc gluconate to the nasal membranes.

Because it is a homeopathic product, Zicam is not regulated by the Food and Drug Administration. However in June the FDA urged consumerss to stop using the nasal gel due to more than 100 complaints from users that claimed to have lost the ability to smell and in some cases taste.

In the complaint Echols alleges that the product causes anosmia, the loss of the sense of smell.

Echols also argues that the product was "unreasonably dangerous" and that as a result of his loss of smell, his ability to taste has been "severely diminished and is likewise permanent and irreversible."

Causes of action filed against the defendants include strict liability through design, manufacturing, and marketing, misrepresentation by saying the product was safe and free from defect and breach of express and implied warranties.

The plaintiff believes the defendants were negligent by failing to design the product for use intranassally, failing to conduct proper and adequate testing, failing to adequately warn of the potential of anosmia, and by failing to design the product with prevailing industry and scientific standards.

Further, the plaintiff believes the defendant's conduct was negligent for "failing to conduct a minimal investigation into the historical and scientific evidence that relates intranasal zinc application to permanent, total and irreversible anosmia."

Arguing gross negligence, fraud, and malice and seeking punitive damages, the complaint asserts that the "defendants knew that Zicam could cause users to lose their sense of smell and taste because they had received hundreds of complaints of such injuries prior to Plaintiffs' use of the Zicam."

The plaintiff is seeking damages for pain and suffering, loss of enjoyment of life, physical injuries, medical expenses, attorney fees, pre-and post judgment interest.

Bagley is from the Longview firm Sloan, Bagley, and Perry.

Case No. 2:09cv00213