Woman's suit alleges cold remedy took away sense of smell

By Michelle Massey, East Texas Bureau | Jan 14, 2009

MARSHALL – An East Texas woman has filed suit against the makers of Zicam, alleging the cold remedy caused her to lose her sense of smell.

Suffering from a cold, Mary Ann Brandon purchased the homeopathic remedy Zicam Cold Remedy Nasal Gel. After using the product only once, Brandon states she felt an intense stinging and burning sensation in her nose and subsequently, lost all sense of smell.

Despite seeking medical treatments, Brandon's sense of smell has only partially returned.

Brandon filed the personal injury lawsuit against Matrixx Initiatives Inc. and Zicam LLC on Jan. 7 in the Marshall Division of the Eastern District of Texas.

According to the court documents, Zicam Cold Remedy Nasal Gel delivers zinc gluconate to the nasal membranes. It is not approved by the Food and Drug Administration as it is not considered a drug.

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

Brandon also argues that the product was "unreasonably dangerous" and that as a result of her loss of smell, her 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.

Suits against Zicam began being filed in 2006 after a doctor in Colorado said he found a link between the product and loss of smell. Several courts rejected expert testimony from the doctor, Bruce Jafek, a University of Colorado School of Medicine ear, nose and throat specialist.

Longview attorneys Laureen F. Bagley and M. Raymond Hatcher of the Sloan, Bagley, and Perry Law Firm are representing the plaintiff.

The case is assigned to U.S. District Judge T. John Ward.

Case No. 2:09cv00008

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