Products Liability and Injury Lawyer Blog

In a conference call with a group of reporters this morning the FDA announced it is warning users of Zicam, a popular cold-relief nasal spray, to stop using the product because it has been associated with approximately 130 reported cases of people losing their sense of smell.

The FDA stated that it had sent Matrixx Initiatives, Inc., the manufacturer of Zicam, a warning letter directing the company to stop marketing the internasal products. The agency also instructed Matrixx that it must seek FDA approval if it wishes to continue selling zinc-containing versions of Zicam administered through the nose.

No recall has been ordered because the FDA's authority is limited for regulation of over-the-counter homeopathic remedies such as Zicam. Although Matrixx denies that the product can cause a loss of smell, the company indicated that it will consider withdrawing the products from the market.

Several lawsuits have already been filed against Matrixx, asserting that Zicam nasal gel has caused permanent loss of smell (anosmia) and taste in users, some after a single application of the product. Zicam contains soluble zinc gluconate, a substance known to be linked to olfactory nerve damage when applied through the nose, which has been associated with anosmia since the 1930’s.

Shares of Matrixx Initiatives Inc. (MTXX) dropped 56% to $8.56 in recent trading after hitting a 52-week low of $8.41 earlier in the day.

Moreno v. Hanford Sentinel, Inc., (5th District, April 2, 2009) --- Cal.Rptr.3d ----, 2009 WL 866795

A woman who posted an article on myspace.com, a social networking website, expressing negative comments about her hometown and its inhabitants, filed suit against a local high school principal and his employer for invasion of privacy and intentional infliction of emotional distress based upon a republication of the article. The plaintiff alleged that even though she had removed the article from the website, the high school principal had forwarded it along with her name to a local newspaper, whereupon it was republished in a letters to the editor section. The plaintiff further alleged that the community reacted violently to the publication, that she and her family had received death threats, and that a shot was fired at the family home.

The trial court sustained the defendant’s demurrer without leave to amend, but the court of appeal affirmed in part and reversed in part. In a non-published portion of the opinion the court held that the trial court should have overruled the demurrer to the intentional infliction of emotional distress cause of action, and permit a jury to determine whether the alleged conduct was outrageous. However, in the published portion of the opinion, the court held that the plaintiff did not state a cause of action for invasion of privacy:

Continue reading " INVASION OF PRIVACY: SOCIAL NETWORKING WEBSITES " »

Phillips v. TLC Plumbing, Inc., (4th District, April 3, 2009) --- Cal.Rptr.3d. ----, 2009 WL 884938, 09 Cal. Daily Op. Serv. 4215

A woman whose mother was murdered by a former plumbing repairman, filed an action for wrongful death against the plumbing service which had employed him. The plaintiff alleged that her mother met the repairman when he had been dispatched to her home by the defendants, and that they had started a relationship following his termination. The plaintiff further alleged that although the murder occurred two years after the repairman had been terminated, the defendants were aware at the time he was hired that he was on parole, and that he had been convicted of domestic violence and/or arson involving his former wife.

The trial court granted the defendants’ motion for summary judgment, finding that they could not be held vicariously liable for the plaintiff’s injuries because there was no employer-employee relationship at the time of the killing. The court also found that it was not reasonably foreseeable that the repairman would enter into a personal relationship with the victim which would later lead to a shooting and killing two years later. The court of appeal affirmed, holding that an employer does not owe a plaintiff a duty of care in a negligent hiring and retention action for an injury inflicted by a former employee:

Continue reading " NEGLIGENT HIRING: POST-TERMINATION MISCONDUCT " »