The makers of Zicam have been sued many times by people who allege that they lost their sense of smell after using the product. This is a copy of another such lawsuit.
1. The Plaintiff, Susan Wyatt, is an adult resident of Jefferson County, Alabama and is a citizen of the United States. The Plaintiff was a resident of said county at the time of the incident made the basis of this suit.
2. Defendant, Matrixx Initiatives, Inc., is Delaware corporation whose headquarters is in the state of Arizona.
3. Defendant, Zicam LLC, is a registerd Limited Liability Company in the state of Arizona.
4. Defendant, CVS Pharmacy Corporation, is a general corporation whose headquarters is in the state of Rhode Island.
JURISDICTION
5. Jurisdiction is claimed pursuant to Title 28 ยง 1332 of the United States Code as complete diversity of citizenship exists between the Plaintiff and all Defendants.
6. The amount in controversy exceeds the jurisdictional requisite of $75, 000.
FACTUAL ALLEGATIONS
7. On or about the 23rt of February, 2003, the Plaintiff, Susan Wyatt, purchased Zicam No-drip Liquid Nasal Gel from the CVS Pharmacy store located at 3030 Montgomery Highway, Homewood, Alabama.
8. Plaintiff used the Zicam product as directed over a period of approximately two weeks (sporadically rather than continuously) to treat a common cold.
9. Upon application of the Zicam product on or about March 14, 2003, Plaintiff realized an intense burning sensation in her nostrils.
10. Immediately after using the Zicam product, Plaintiff realized a total loss of the sense of smell and taste.
11. At all times Plaintiff used the Zicam product only according to its intended use as directed by the manufacturer.
12. At all times relevant to this complaint Defendants Matrixx and Zicarn designed and manufactured the Zicam product for ultimate use by consumers as an over-the-counter medication.
13. At all times relevant to this complaint Defendant CVS Pharmacy was in the business of selling the Zicam product to the general public as an over-the-counter medication.
14. The Zicam product purchased by the Plaintiff was in the original carton furnished by Defendants Matrixx and Zicam and said carton had been sealed by Defendants prior to the sale and delivery to the retailer, CVS Pharmacy.
FIRST COUNT: Negligence and/or Wantonness
15. Defendants carelessly, negligently, wantonly, and recklessly manufactured, designed, formulated, made, sold, and distributed the Zicam product without regard to its safety and without regard to the well-being of the ultimate targeted consumers for which said product was intended.
16. Defendants knew, or in the exercise of reasonable care and due diligence should have known that the Zicam product was dangerous and defective.
17. Defendants knew, or in the exercise of reasonable care and due diligence should have known that the Zicam product lacked adequate warnings and labeling, which Defendants carelessly, negligently, wantonly, and recklessly failed to provide the Plaintiff.
18. Defendants knew, or in the exercise of reasonable care and due diligence should have known that its herein enumerated acts, conduct or omissions would cause serious harm, damages, and injuries to the Plaintiff and other similarly situated consumers.
19. As a direct and proximate result of the Defendants' negligence and/or wantonness, the Plaintiff suffered the herein enumerated damages.
SECOND COUNT: Failure to Warn
20. Defendants negligently and/or wantonly failed to warn consumers, including the Plaintiff, of the serious dangers of using the Zicam product as directed.
21. Defendants Matrixx and Zicam likewise acted negligently and/or wantonly in failing to warn CVS Pharmacy and other retail distributors of the dangers associated with the Zicam product.
22. Defendants Matrixx and Zicam were likewise negligent in failing to adequately test the Zicam product before placing said product into the stream of commerce.
23. As a direct and proximate result of Defendants negligence in failing to warn or test said product, the Plaintiff suffered the herein enumerated damages.
THIRD COUNT: Alabama Extended Manufacturer Liability Doctrine
24. Defendants manufactured, formulated, distributed, and/or sold the Zicam product which was ultimately used by the Plaintiff.
25. The said Zicam product, which is the subject of this action, was in a defective and unreasonably dangerous condition prior to entering the hands of the Plaintiff.
26. As a direct and proximate result of the said product's defective
condition, the Plaintiff suffered the herein enumerated damages.
OURTH COUNT: Breach of Implied Warranty of Merchantability
27. Defendants impliedly warranted that the Zicam product was of merchantable quality, fit, safe, and in the proper condition for the ordinary use for which the product was designed and used.
28. In reliance upon the implied warranty of merchantability, the Plaintiff purchased the product as set forth herein.
29. In fact, the Zicam product was not of merchantable quality and was unfit, unsafe, and unsuitable for the purpose for which it was intended.
30. As a direct and proximate result of the breach of implied warranty of merchantability, the Plaintiff suffered the herein enumerated damages.
FIFTH COUNT: Breach of Warranty of Fitness for a Particular Purpose
31. Defendants impliedly warranted that the Zicam product was fit for intranasal use by the consumer, the purpose for which it was designed, and that said product was safe and suitable when used as directed.
32. In purchasing and using the Zicam product the Plaintiff relied upon the Defendant's skill and judgment and the implied warranty of fitness for the purpose for which the Plaintiff purchased the product.
33. In fact, the Zicam product was not fit for use for its intended purpose and as a proximate result of Defendants' breach of warranty of fitness of the Zicam product, the Plaintiff suffered the herein enumerated damages.
SIXTH COUNT: Fraud/ Deceit/ Misrepresentation/ Suppression
34. Defendants willfully, falsely, knowingly, and/or negligently misrepresented material facts relating to the character, the quality, and the safety of the Zicam product when used for its intended purpose.
35. Said misrepresentations took the form of advertisements and packaging suggesting that the Zicam product was safe and effective when used for its intended purpose.
36. Plaintiff relied upon said misrepresentations (and/or suppressions) when she purchased the Zicam product and used it according to its intended purpose.
37. Defendants intentionally, recklessly, wantonly and/or negligently suppressed and concealed material facts concerning the Zicam product from Plaintiff and other consumers including, but not limited to, the fact that using the product as directed by the manufacturer could cause a total and permanent loss of taste and smell.
38. Defendants were under a duty to disclose these material facts to the Plaintiff because of their superior skill and knowledge regarding the product and because of the relationship to the Plaintiff and the public.
39. Defendants' failure to disclose and concealment of these material facts proximately caused damage to the Plaintiff as described herein.
40. As a direct and proximate result of said misrepresentations, the Plaintiff suffered the herein enumerated damages.
FICTITIOUS PARTIES
41. Plaintiff avers that the negligence and other tortuous conduct of the Fictitious Defendants, identified as Defendants A through I, combined and coalesced to directly and proximately cause the Plaintiffs injuries and damages as herein enumerated.
42. Defendants A through I, whose true identities and names are unknown to the Plaintiff at the present time will be correctly named and identified at such time as when they are ascertained.
DAMAGES
43. The conduct of the Defendants' as alleged herein, including the fictitious party defendants, combined and coalesced to proximately cause the following injuries and damages:
a. The Plaintiff was caused to be permanently injured;
b. The Plaintiff was caused (and will in the future be caused) to expend money and income for hospital, doctor, and drug related expenses in an effort to diagnose, alleviate, or heal her injuries;
c. The Plaintiff was caused (and will in the future be caused) to suffer great emotional distress and mental anguish;
d. The Plaintiff was caused (and will in the future be caused) to suffer loss of enjoyment of life.
Wherefore, plaintiff demands judgment against each of the Defendants, jointly and severally, including both compensatory and punitive damages and all other relief available under the law.
