(CN) – A lawyer deserves another chance to hold the makers of Zicam nasal gel liable for allegedly killing his sense of smell, a federal judge ruled.
Michael Nelson, of California, filed suit pro se against Zicam and Matrixx Initiatives over their Cold Remedy gel swabs and spray. After using the products in 2006 and 2008, Nelson allegedly “felt an intense burning in his nostrils” and subsequently “lost his sense of smell,” according to the court’s summary of the complaint.
Nelson claimed defective design; failure to warn; defective manufacture; fraud by intentional misrepresentation; fraud by false promise and concealment; and negligence in an amended complaint.
The federal complaint in San Francisco alleges that the gels contained zinc, which studies have linked to smell loss, or anosmia.
“Plaintiff specifically states that he applied the nasal gel spray to both nostrils,” U.S. District Judge William Alsup wrote. “As a result of his use of the products, plaintiff alleges he has suffered a total and irreversible loss of his ability to smell and taste.”
Alsup dismissed some of the claims against Zicam and Matrixx last week, but said Nelson can move to amend the unsuccessful claims.
“Defendants contend that the complaint fails to explain how the products deviated from defendants’ intended result or design, or from other seemingly identical products,” Alsup wrote. “This order agrees. … The conclusory statement that defendants failed to manufacture the products ‘in accordance with prevailing industry and scientific standards’ cannot suffice to put defendants on notice of an alleged manufacturing defect.”
Nelson’s claim of defective design fared better, however.
“Defendants contend plaintiff fails to sufficiently allege a design defect claim because plaintiff does not provide a detailed explanation of what was defective about the products, plaintiff does not allege a ‘nexus’ between the alleged design defect and his injuries and, most importantly, plaintiff does not distinguish between the two products at issue in this action,” according to the nine-page decision.
“Though it is a close call, this order finds these allegations are sufficient to support a design defect claim under California law,” Alsup wrote. “Under the ‘ordinary consumer’ standard, a product designed for intranasal use is expected not to cause irreparable injury to the nose if used in a foreseeable manner.”
Likewise, the concealment claim alleges that Nelson would not have used Zicam nasal gel products if he knew the risks.
“It may be inferred that defendants concealed the unfavorable studies with fraudulent intent, for the purpose of making a profit; it may also be inferred that plaintiff, who was unaware of the studies or their results, would have acted differently had he known of the suppressed facts,” Alsup wrote.
But the judge was less favorable toward Nelson’s claims for fraud by intentional misrepresentation and false promise.
“Plaintiff’s own exhibit expressly states that he does not know whether he ever read the warnings or directions on the product packaging or whether he followed those directions,” Alsup wrote. “Moreover, the several statements in reference to homeopathic reduction of cold symptoms appear unrelated to plaintiff’s alleged injury, which is not alleged to have resulted from the products’ failure to reduce the severity of plaintiff’s cold.”