Longview attorneys file more lawsuits against makers of Zicam

Michelle Massey, East Texas Bureau Aug. 12, 2009, 9:16am

MARSHALL – Longview attorneys continue to file federal lawsuits against the makers of the homeopathic cold relief product Zicam for allegedly causing anosmia, a loss of the sense of smell.

Laureen F. Bagley and M. Raymond Hatcher of the Sloan, Bagley, and Perry Law Firm have filed a suit on behalf of Sherrin Dawn King against Matrixx Initiatives Inc and Zicam Inc. on July 31 in the Marshall Division of the Eastern District of Texas.

Suffering from a cold in January 2008, King purchased Zicam's Allergy Relief Nasal Gel Swabs in an attempt to gain some relief. King states she used the product several days in a row and that by March she had lost all sense of smell.

Despite medical treatments, the plaintiff claims her sense of smell has not returned and has severely diminished her ability to taste.

With similar allegations, Longview attorneys Blake C. Erskine, Chad F. Newman and F. McDevin Huggins of the law firm Erskine and McMahon LLP filed suit on behalf of Maria E. Head on Aug. 3 in the Marshall Division of the Eastern District of Texas.

In late spring of 2008, Head began using Zicam nasal swabs. She states that after applying the product as directed, she "felt a significant burning and/or stinging sensation inside her nose followed by a slight sense of relief from her symptoms."

According to the complaint, "this slight relief lulled Plaintiff into continued use of the product for the next several days."

On the third day of use, Head states that she became alarmed and sought medical treatment directly after she realized she could not smell her freshly brewed coffee.

According to the court documents, Zicam Cold Remedy Nasal Gel delivers zinc gluconate to the nasal membranes. Previously not considered a drug, the Food and Drug Administration have not been approved Zicam for safety or efficacy.

However, on June 16, the FDA released a warning for consumers not to use certain Zicam Cold Remedies as the products are linked to the loss of sense of smell.

According to the news release, the FDA has received more than 130 complaints regarding the product and loss of smell. The FDA told the company that the products could no longer be marketed without FDA approval.

Causes of action filed against the defendants include strict liability, negligence, breach of express and implied warranties, and violations of the Texas Deceptive Trade Practices Act.

The plaintiffs believe 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 risks including the risk of anosmia, and by failing to design the product by prevailing industry and scientific standards.

Further, the plaintiffs allege that the defendants' 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 complaints assert 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."

In previous allegations against Zicam, the defendants argue that that the product was "neither defective nor unreasonably dangerous when used according to the label instructions."

Both plaintiffs are seeking more than $75,000 in damages for pain and suffering, loss of enjoyment of life, physical injuries, medical expenses, attorney fees, pre-and post judgment interest.

U.S. District Judge David Folsom will preside over King's litigation. Case No 2:09cv00232.

U.S. District Judge T. John Ward will preside over Head's litigation. Case No 2:09cv00234.

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