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Zicam Litigation Update
Posted by: euser
September 18, 2009

The U.S. Judicial Panel on Multidistrict Litigation is scheduled to hear arguments next week over whether all federal Zicam lawsuits should be centralized and consolidated in one district as part of an MDL, or Multidistrict Litigation.

The hearing, which is scheduled for September 24 in Richmond, Va., will give plaintiffs and defendants a chance to present oral arguments for or against the consolidation. There are currently at least 10 lawsuits over Zicam pending in 9 different federal district courts against Matrixx Initiatives, which manufactured the over-the-counter cold remedy that was recalled earlier this year amid concerns that it may cause users to suffer permanent loss of smell.

The FDA warned consumers to stop using Zicam nasal gel and swabs on June 15, after receiving more than 130 reports of users developing anosmia, a condition where they are unable to smell. Although Matrixx Initiatives has maintained that their product is safe and does not cause loss of smell problems, they have since disclosed that they were aware of another 800 reports of Zicam side effects that were never turned over to the FDA.

The Zicam lawsuit complaints contain similar allegations that zinc gluconate, the single active ingredient in Zicam Cold Remedy, is toxic to the tissue inside the nose and is responsible for causing damage to plaintiffs ability to smell, detect odors or taste. In addition to the damage this condition can cause to an individuals quality of life, it could also lead to life-threatening injuries if someone is unable to smell dangerous fumes, smoke or food that has gone rotten.

Zicam products were not regulated or approved by FDA because they were listed as homeopathic treatments using natural products. However, at the time of the FDA announcement, Matrixx Initiatives was warned that they would no longer be permitted to market the homeopathic products until they submit data establishing the safety and effectiveness for FDA review.

At least one plaintiff, Stefanie Riepe, who filed a Zicam lawsuit against Matrixx Initiatives in the Western District of Missouri, filed a motion asking that all federal cases involving similar injuries and allegations be consolidated into an MDL to avoid inconsistent pretrial rulings, repeat discovery on issues common to all cases and to serve the convenience of the parties, the witnesses and the court. The plaintiff requests that the cases be assigned to the Western District of Missouri, but the MDL Panel will determine where the cases are sent if they determine consolidation is appropriate.

If the cases are centralized, as new cases are filed in various federal courts by Zicam lawyers who are currently investigating potential claims, they will be transferred into the MDL for coordinated handling during pretrial proceedings. If the cases do not settle or otherwise resolve, they will ultimately be returned to the courts where they were filed for trials.

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