Lawsuit claims Zicam Causes Loss of Smell

A source reports that Matrixx, makers of Zicam Cold Remedy are involved in a class action suit because their product (Zicam) causes loss of smell in its users.

Matrixx of course wants the case dismissed, relates a spokesman. They claim that this is not true, of course.

The District Court granted this motion, explains the expert, but the Ninth Circuit reversed the motion, saying that the District Court made a mistake when they required an allegation of statistical significance to establish materiality. Instead, they came to the conclusion that the complaint thoroughly claimed information linking Zicam and its user’s inability to smell, otherwise known as anosmia. There were also allegations that Matrixx withheld information about reports to these side effects and about lawsuits already pending by Zicam users that they knew about the wrong doing. This is obvious personal injury.

To prove their accusations, respondents must be able to prove as necessary that there was in fact an omission by Matrixx, as well as a scienter (knowledge of unlawful activities and wrong doing). Matrixx claims they did not come forward because there was no significant evidence that Zicam did in fact cause loss of smell.

Materiality requirement can be satisfied when there is “a substantial likelihood that the disclosure of the omitted fact would have been viewed by the reasonable investor as having significantly altered the “total mix” of information available”, according to Basic Inc. V. Levinson, 485 US 224. The court did not adopt a bright line rule for classifying materiality in Basic, stating that an approach that designates one fact is always dependent on a specific fact finding such as materiality, and it must be inclusive.

The case is still going on, and the defendants are hoping that with all the evidence they have provided, Matrixx and Zicam will be taken off the market and fixed so that it no longer causes tis kind of injury in its users. This is ongoing and could take a while. Companies in The Bronx and Queens are awaiting the results.

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