The U.S. Judicial Panel on Multidistrict Litigation has ordered that the federal Zicam litigation, involving claims that some recalled cold remedy products caused users to lose some or all of their sense of smell or taste, will be consolidated and centralized for pretrial proceedings in the U.S. District Court for the District of Arizona.
According to an order issued October 9, there are at least ten Zicam lawsuits pending against the manufacturer, Matrixx Initiatives, Inc. Following a hearing last month, the panel determined that nine of the ten cases involve sufficiently similar questions of fact to justify consolidation into an MDL, or multidistrict litigation. The MDL will be overseen by U.S. District Judge Frederick J. Martone.
A Zicam recall was issued on June 15, for three versions of the over-the-counter homeopathic remedy for the common cold, after the FDA warned consumers to stop using the products. More than 130 reports were received by the FDA involving users who developed anosmia, a condition where they are unable to smell.
Although Matrixx Initiatives has maintained that the cold remedy is safe and does not cause loss of smell, the manufacturer has disclosed that they did not notify the FDA of at least 800 reports of Zicam problems filed by users.
The nine cases consolidated in the Zicam litigation involve similar allegations that zinc gluconate, the single active ingredient in nasal Zicam cold remedies, 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 individual’s 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.
A tenth Zicam case, which alleges that Matrixx Initiatives defrauded consumers, was not included in the MDL. Now that the litigation has been consolidated, it is expected that a substantial number of additional claims will be filed by Zicam lawyers who are currently investigating and reviewing potential cases for individuals who lost their sense of smell or taste. As these cases are filed in federal district courts throughout the United States, they will be transferred to the District of Arizona for coordinated handling.
Consolidating all of the Zicam recall litigation into an MDL is designed to avoid inconsistent pretrial rulings in similar cases spread throughout the country, eliminate repeat discovery on issues that are common to all cases and to serve the convenience of the parties, the witnesses and the court. While the cases will be consolidated for pretrial litigation, each claim will remain an individual Zicam lawsuit and if a settlement or other resolution is not reached, they may be returned back to the jurisdiction where they were originally filed for trial.