An Arizona federal judge on Friday rejected arguments by Matrixx Initiatives Inc., Zicam LLC and others that the remaining plaintiffs in multidistrict litigation over Zicam Cold Remedy had not demonstrated the product could cause anosmia.
U.S. District Judge Frederick Martone denied the defendants’ motion for summary judgment on the issue of general causation — whether the cold remedy had the capacity to cause a loss of the sense of smell. The defendants filed the motion in March, just months after Matrixx and Zicam agreed to pay out $15.5 million to settle with more than 1,000 plaintiffs who claimed Zicam Cold Remedy caused them to lose their sense of taste or smell.
Judge Martone ruled that the personal injury plaintiffs had put forth enough evidence to demonstrate that it was possible that Zicam Cold Remedy can cause anosmia.
“A reasonable fact finder could conclude that ordinary use of Zicam can cause plaintiffs’ alleged injuries,” the opinion said.
Attorneys for the parties did not immediately respond to request for comment Friday.0
In their motion for summary judgment, the defendants had argued that the plaintiffs could not show general causation because they had not demonstrated exactly how much Zicam exposure was necessary to cause anosmia.
But after considering limited precedent and practical concerns, Judge Martone ruled that plaintiffs did not need to provide such precise information.
“Plaintiffs need not establish the toxic dose of Zicam,” the opinion said. “Plaintiffs’ evidence of toxicity is sufficient to create a material issue of fact regarding general causation.”
In December, Matrixx and Zicam settled the bulk of outstanding cases and claims in the MDL as well as in California and Arizona state courts. The settlement covered about 1,014 plaintiffs and 1,127 claimants, Matrixx said at the time.
The plaintiffs and claimants agreed to dismiss their cases with prejudice in return for participating in the voluntary settlement, which includes $11.5 million after certain contingencies are satisfied and $4 million in subsequent payments within 21 months, the company said in December.
The lawsuits were launched largely after the U.S. Food and Drug Administration released a June 2009 letter to Matrixx saying that Zicam Cold Remedy gel and swabs could not be marketed without FDA approval, and that the products were misbranded because its labeling did not bear adequate warnings regarding the risk of anosmia.
The zinc-containing products are intranasal cold remedies marketed for reducing the duration and severity of cold symptoms. In its letter, the FDA said that the products had not been shown to be effective.
Steve Leshner is a member of the Plaintiffs Steering Committee, and the Negotiation Committee in the MDL, and Lead Counsel for the Plaintiffs in the Arizona state court cases. He is also a member of the Claims Committee which is in the process of resolving the settled claims.