NY City Man Seeks $75 Mill in Zicam Suit

Last summer, the U.S. Food and Drug Administration (FDA) said it received 130 reports of anosmia—loss of sense of smell—in people who had used some <"http://www.yourlawyer.com/topics/overview/Zicam">Zicam products. Following the FDA alert, Matrixx Initiatives—maker of the Zicam products—recalled Zicam Cold Remedy Nasal Gel and Zicam Cold Remedy Swabs. The company had already withdrawn Zicam Cold Remedy Swabs, Kids Size, the third product named by the FDA.

Now, the NY Daily News is reporting that a New York City man—Paul Buck Jr.—is suing Matrixx Initiatives for $75 million, claiming that Zicam Cold Remedy Nasal Spray caused him to lose most of his senses of smell and taste. Buck Jr. said he used the spray, which was known to contain zinc and was available over-the-counter (OTC), from 2006 to 2009, said the NY Daily News.

Today, said Buck Jr., he suffers from anosmia, wrote the NY Daily News, citing the lawsuit that was just filed in Manhattan Federal Court, and which explains that Buck Jr. was formerly the director of operations for Art Food LLC at the New York Metropolitan Museum of Art. His senses of taste and smell were critical to his position at the prestigious Manhattan museum.

Last summer, the FDA issued a Warning Letter to Matrixx saying it had failed to inform the agency of 800 anosmia reports linked to the recalled cold remedies. Matrixx admitted that it did not pass along those reports to the FDA, but has maintained that its legal counsel advised it was not required to forward those reports to the agency. In the Warning Letter, the FDA warned the firm that the products cannot be marketed without agency approval and also stated that the three Zicam nasal remedies did not include adequate warnings about the risk of loss of sense of smell.

Buck Jr.’s lawsuit now alleges that Matrixx was aware, or should have been aware, that studies going back for at least 70 years have found that topical applications containing zinc ions, “can produce permanent anosmia,” quoted the NY Daily News. Rather than address the adverse health responses caused by zinc, the lawsuit alleges that Matrixx described its Zicam spray with verbiage such as, “doctor recommended,” “safe and effective,” and a “patented homeopathic” remedy, reported the NY Daily News, which, citing the lawsuit, said the terms were designed to “lull consumers.”

Meanwhile, consumers continue to file suit against Zicam’s maker. We recently wrote that Mary Pat Bollone, a resident of Illinois, filed her lawsuit on December 31 in St. Clair County Circuit Court. Bollone claims she purchased and used a Zicam nasal remedy in March 2008. The complaint alleges that because of her use of Zicam, Ballone sustained permanent loss of smell and taste; suffered disability, loss of a normal life, pain, suffering and extreme emotional distress; and incurred medical costs. In her 10-count suit, Bollone seeks a judgment of more than $500,000, plus costs, and other relief the court deems just.

Other Zicam lawsuits pending in federal courts have been consolidated in a multidistrict litigation, under U.S. District Judge Frederick J. Martone in the District of Arizona. And, in 2006, the company reached a settlement with 300 Zicam users who claimed their use of the nasal remedies caused anosmia.

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