Weak Medical Testimony Tossed in Nasal Gel Suit

     (CN) – A lawyer who claimed nasal gel wiped out his sense of smell cannot use “unreliable” medical testimony in a product-liability lawsuit, a federal judge ruled.
     Michael Nelson, of California, originally sued Zicam and Matrixx Initiatives in state court in June 2009. Nelson said that companies should have warned consumers that their Zicam Cold Remedy Nasal Gel swabs and spray contained zinc.
     After using the cold medicine 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 his complaint.
     Studies have linked zinc to smell loss, a condition known as anosmia.
     The action was removed to federal court, then transferred to a multidistrict litigation panel in Arizona in November 2009, and transferred back to California.
     Nelson, a lawyer proceeding pro se, offered the opinions of Drs. Greg Davis and Peter Hwang to prove specific causation of his injury.
     Davis scored Nelson as anosmic based on a second, self-administered smell function test, which Nelson first performed in 2010. And, Hwang, whom Nelson visited three years after the alleged injury, concluded that the loss of smell was “most likely” caused by the defendants’ products.
     Despite the clinical conclusions, the court ruled on Tuesday that the doctors failed to use a scientific approach and list or eliminate potential causes of Nelson’s smell loss.
     As such, the opinions “are not based on reliable methods reasonably applied to the facts of this action,” the 20-page ruling states.
     Davis failed to identify age and the cold virus as well-established, common causes of smell loss, U.S. District Judge William Alsup said.
     “A substantial percentage of cases of anosmia are classified as idiopathic, meaning the cause is unknown to medical science,” he wrote. “Yet, Dr. Davis has not explained his procedure for ruling out the cold plaintiff developed as the cause of his anosmia, which plaintiff noticed a few days after his cold subsided. Neither does Dr. Davis’s expert report consider age as a possible or likely cause of plaintiff’s anosmia; at the time plaintiff used Zicam in 2008, he was 64 years old. Many over sixty have lost all or most of their sense of smell and would say to plaintiff, ‘Welcome to the sixties.'”
     Hwang, a treating physician, saw Nelson once in January 2012, approximately three years after Nelson took Zicam, Alsup noted.
     Based on two articles by another doctor, Terrence Davidson, Hwang allegedly concluded that Nelson’s loss of smell was “most likely related to Zicam use.” Nelson gave Hwang the articles, the ruling adds.
     “Dr. Hwang’s weak qualifications to offer an opinion on the cause of plaintiff’s anosmia coupled with unsupported speculation and unreliable methodology make his opinions on the issue of specific causation unreliable,” Alsup wrote.
     Hwang, an otolaryngologist who diagnoses ear, nose and throat conditions, “has no specialized epidemiological or toxicological training or credentials,” the decision states. “He has performed no independent scientific research on the issue of Zicam’s ability to produce smell loss. He has never studied zinc gluconate, the active ingredient in Zicam or Zicam itself.”
     “Experts employing differential diagnosis must use scientifically valid methods and procedures for ruling in and out each significant possible cause of the alleged injury” Alsup added.
     In total, the parties filed four motions for summary judgment, five motions to exclude, and one motion to dismiss in one week.
     In “an effort to effectively manage” the action, Alsup said he would rule on the defendants’ motion for summary judgment based on lack of causation and held all other motion in abeyance.
     After ruling to exclude the doctors’ testimony, however, Alsup ruled to also hold the lack of causation motion in abeyance.
     Davis may submit a revised report by Sept. 4, and defense counsel may depose him for seven hours within seven days of its service, Alsup said.
     Alsup also vacated a pretrial conference and trial, and scheduled a status conference for Sept. 6 to reset the dates.

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