David S. Jasmer
Setting the Standard in Personal Injury
local312-386-7011 toll free866-920-6021

Nasal spray suit allowed to move forward

Pending the results of a current lawsuit, users of nasal sprays in Illinois may want to reconsider the use of the products.

According to the plaintiff in a product liability suit, the manufacturers of Cold Remedy gel swabs and spray -- Zicam and Matrixx Initiatives -- are guilty of failure to warn, defective design, fraud by false promise and concealment, defective manufacture, fraud by intentional misrepresentation and negligence in an amended complaint.

The plaintiff used the products in 2006 and 2008 and says that he felt an extreme burning sensation in his nostrils after doing so. According to the court's summary of the complaint, the man blames the loss of his sense of smell on these products and says that he would not have used them had he been aware of the potential side effects that he believes he experienced.

The suit was filed in a U.S. District court -- which means the suit is being heard on the federal level.

According to the complaint, the products manufactured by Zicam and Matrixx contain zinc, an ingredient that some studies have linked to anosmia, also known as loss of smell.

Some of the victim's claims -- such as defective manufacturing -- have already been dismissed by the judge, but he will be allowed to amend them and try again. Others have been supported, including one that claims defective design.

According to the judge, the defendants contended that the plaintiff failed to provide sufficient reasoning for defective design, suggesting that the plaintiff did not explicitly tie defective design to his injuries, which would make the claim irrelevant in the man's suit. Despite what the defendants claimed, the judge sided with the plaintiff, citing the "ordinary consumer" standard.

This standard allowed the judge to determine that a product designed for intranasal use should not be able to cause irreparable injury to the nose, if used properly. The plaintiff's lawsuit will more than likely move forward on this and several other amended arguments.

Source: Courthouse News Service, "Nasal Spray Makers Can't Blow Away Liability Case," Jonny Bonner, May 23, 2012

No Comments

Leave a comment
Comment Information
  • Foundation
  • Million Dollar Advocates Forum
  • Illinois State Bar Association
  • American Association For Justice