In February of 2009, a lawyer for Deanna Digiulio filed a lawsuit in New York against the makers of Zicam. The lawsuit makes the allegation that Digiulio lost her sense of smell after using Zicam Cold Remedy.
19. As directed on the packaging, plaintiff Deanna DiGiulio placed the tip of the nasal pump's nozzle just past her nasal openings and pumped Zicam Cold Remedy into each of her nostrils.
20. After applying the Zicam Cold Remedy to both nostrils, plaintiff Deanna DiGiulio experienced excruciating and debilitating pain in her nasal cavity.
21. In addition to the excruciating and debilitating pain, plaintiff Deanna DiGiulio instantly lost her sense of smell and, as a consequence, her sense of taste was severely diminished.
22. Plaintiff Deanna DiGiulio has since been informed that the loss of the sense of smell and the consequential damage to her sense of taste is permanent, total, and irreversible.
23. Zicam Cold Remedy caused both the excruciating and debilitating pain experienced by plaintiff Deanna DiGiulio and the permanent, total, and irreversible loss of her sense of smell with the consequent diminishment of taste
NOW COMES the plaintiff, Deanna DiGiulio, by and through her attorneys, Bender, Crawford & Bender, LLP, and for her complaint against the Defendants, states as follows:
Nature of the Action
1. This is an action for money damages arising from a bodily injury caused by design defects in an over-the-counter cold remedy tested, designed, manufactured, distributed, promoted, and sold by Defendants; the negligent actions of the Defendants as they pertain to the defective product; and the Defendant's breach of the product's warranties.
The Parties
2. Plaintiff Deanna DiGiulio is a resident of the City of Buffalo, County of Erie, State of New York.
3. Defendant Matrixx Initiatives, Inc. was and still is a corporation duly organized and existing under and by virtue of the laws of the State of Delaware, which conducts business in and throughout the State of New York. Service of process may be had upon Defendant by serving its registered agent, The Corporation Trust Company, 1209 Orange Street, Wilmington, Delaware 19801.
4. Defendant Zicam, L.L.C. was and still is a limited liability company duly organized and existing under and by virtue of the laws of the State of Arizona, which conducts business in and throughout the State of New York. Service of process may be had upon Defendant by serving its registered agent, CT Corporation System, 2394 E. Camelback Road, Phoenix, Arizona 85016.
5. Upon information and belief, defendant Zicam, L.L.C. is a wholly owned and controlled subsidiary of defendant Matrixx Initiatives, Inc.
6. Defendant CVS Pharmacy, Inc. was and still is a corporation duly organized and existing under and by virtue of the laws of the State of Rhode Island, which conducts business in and throughout the State of New York. Service of process may be had upon Defendant by serving its registered agent, CT Corporation System, 155 South Main Street, Suite 301, Providence, Rhode Island 02903.
Jurisdiction and Venue
7. This Court has subject matter jurisdiction of this action pursuant to 28 U.S.C. § 1332(a) because the amount in controversy exceeds the sum or value of $75,000.00, exclusive of interest and, costs and pursuant to 28 U.S.C. §1332(a)(1) as this action is between citizens of different States.
8. Venue is proper in this district pursuant to 28 U.S.C. § 1391(a)(2) and/or 28 U.S.C. §1391(a)(3) because all of the acts or occurrences giving rise to this Complaint occurred in this judicial district and Defendants are subject to personal jurisdiction in this judicial district at the time this action is commenced.
Factual Allegations
9. That at all times hereinafter mentioned the defendants Matrixx Initiatives, Inc. and Zicam, L.L.C., (hereinafter collectively referred to as defendant “Matrixx”) were and still are engaged in the business of testing, designing, manufacturing, distributing, and promoting an over-the-counter pharmaceutical known as Zicam Cold Remedy.
10. That at all times hereinafter mentioned the defendant CVS Pharmacy, Inc. was and still is engaged in the business of selling the over-the-counter pharmaceutical known as Zicam Cold Remedy.
11. On or about February 23, 2006, Plaintiff Deanna DiGiulio used Zicam Cold Remedy in an attempt to alleviate symptoms of cold from which she was suffering.
12. The Zicam Cold Remedy used by Plaintiff Deanna DiGiulio was purchased at defendant CVS Pharmacy, Inc.
13. Plaintiff Deanna DiGiulio used the “no-drip liquid nasal gel” version of Zicam Cold Remedy.
14. This version of Zicam Cold Remedy is distributed in a nasal pump.
15. Defendant Matrixx states on the packaging for this version of Zicam Cold Remedy that the product is a homeopathic remedy clinically proven to reduce the duration of the common cold and the severity of cold symptoms.
16. Defendant Matrixx claims “satisfaction guaranteed” on the packaging.
17. When Plaintiff Deanna DiGiulio used the Zicam Cold Remedy it was in its original packaging and showed no evidence of tampering.
18. After opening the packaging, the Zicam Cold Remedy was not altered before its use by Plaintiff Deanna DiGiulio.
19. As directed on the packaging, plaintiff Deanna DiGiulio placed the tip of the nasal pump's nozzle just past her nasal openings and pumped Zicam Cold Remedy into each of her nostrils.
20. After applying the Zicam Cold Remedy to both nostrils, plaintiff Deanna DiGiulio experienced excruciating and debilitating pain in her nasal cavity.
21. In addition to the excruciating and debilitating pain, plaintiff Deanna DiGiulio instantly lost her sense of smell and, as a consequence, her sense of taste was severely diminished.
22. Plaintiff Deanna DiGiulio has since been informed that the loss of the sense of smell and the consequential damage to her sense of taste is permanent, total, and irreversible.
23. Zicam Cold Remedy caused both the excruciating and debilitating pain experienced by plaintiff Deanna DiGiulio and the permanent, total, and irreversible loss of her sense of smell with the consequent diminishment of taste.
As and for a First Cause of Action (Strict Products Liability)
24. The plaintiff herein realleges and incorporates by reference each and every paragraph set forth above.
25. Plaintiff Deanna DiGiulio used Zicam Cold Remedy in the foreseeable manner and for the foreseeable purpose that defendant Matrixx tested, designed, manufactured, distributed, promoted Zicam Cold Remedy and for which CVS Pharmacy, Inc. sold it.
26. The Zicam Cold Remedy reached plaintiff Deanna DiGiulio in the same condition which Defendants expected it would be used.
27. Plaintiff Deanna DiGiulio suffered excruciating and debilitating pain, lost her sense of smell, and has diminished taste because of her use of Zicam Cold Remedy.
28. The Zicam Cold Remedy was in a defective condition when used by plaintiff Deanna DiGiulio in that, among other things, defendant Matrixx:
a. designed Zicam Cold Remedy with a chemical composition that posed an inherent threat to a user's sense of smell and taste;
b. instructed users to apply Zicam Cold Remedy intranasally;
c. designed a container that would deliver a concentrated stream of Zicam Cold Remedy directly to the olfactory region despite practicable alternatives that reduce the foreseeable risk of harm posed by Zicam Cold Remedy;
d. failed to engage in proper and adequate testing of this product and its long term effects on the sense of smell and taste;
e. failed to adequately investigate the historical and scientific evidence that relates intranasal zinc application to permanent, total and irreversible anosmia;
f. failed to adequately consider, investigate, and take remedial action in response to the numerous independent and unrelated reports communicated to the Defendants of anosmia suffered as consequence of using Zicam Cold Remedy;
g. failed to warn users of Zicam Cold Remedy that use of the product as directed could potentially cause permanent total and irreversible anosmia;
h. failed to advise users of Zicam Cold Remedy to immediately seek medical attention if experiencing intense intranasal pain after use; and
i. failed to design the product in accordance with prevailing industry and scientific standards in a manner that would have eliminated unreasonable risks of injury during reasonably foreseeable uses.
29. Plaintiff Deanna DiGiulio was not aware that the use of Zicam Cold Remedy created an unreasonable risk of personal injury.
30. Further, plaintiff Deanna DiGiulio did not voluntarily expose herself to any known, unreasonable risk of harm in using Zicam Cold Remedy, as she was not aware, prior to this one and only use of it that it posed an unreasonable risk of personal injury.
31. Plaintiff Deanna DiGiulio has suffered damages which are continuing in nature and include, but are not necessarily limited to, the following:
a. Complete, total, permanent, and irreversible loss of the sense of smell;
b. Permanent and irreversible diminution of the sense of taste;
c. Past and future economic loss as a chef/manager of a fine dining restaurant and catering business;
d. Mental and emotional distress;
e. Mortification and humiliation;
f. Physical pain and suffering;
g. Medical expenses;
h. Loss of enjoyment of everyday activities and severely diminished quality of life given the fact that two of her senses are gone forever;
i. Increased susceptibility to risks generally avoidable by a person with an intact sense of smell;
j. Other damages not specifically identified above.
32. At the time of Zicam Cold Remedy's manufacture, distribution, promotion, and sale, Defendants had actual knowledge that the product was defective and that there was a substantial likelihood that the defect would cause the same injury that is the basis of this cause of action.
33. Defendants received hundreds of independent and unrelated reports of anosmia suffered as consequence of using Zicam Cold Remedy from users of the product.
34. Independent research links Zicam Cold Remedy with anosmia.
35. Defendants willfully disregarded this information in the manufacture, distribution, promotion, and/or sale of Zicam Cold Remedy.
36. Defendants outrageously continued to disregard the knowledge that the intranasal application of Zicam Cold Remedy causes total, permanent, and irreversible anosmia when used as directed.
37. By reason of the foregoing plaintiff Deanna DiGiulio seeks compensatory damages in a sum to be determined at the time of trial, but not less than seventy-five thousand dollars ($75,000.00).
As and for a Second Cause of Action (Negligence)
38. Plaintiff repeats and realleges each and every allegation set forth above with the same effect as though more fully set forth at length herein.
39. Defendant Matrixx and their predecessor entities owed a duty to plaintiff Deanna DiGiulio, and all others similarly situated to use due care and caution in the design of Zicam Cold Remedy and to avoid unreasonable risks of injury during reasonably foreseeable uses of the product.
40. Similarly, defendant CVS Pharmacy, Inc. owed a duty to plaintiff Deanna DiGiulio, and all other similarly situated to avoid unreasonable risks of injury during reasonably foreseeable uses of the product it sold.
41. Defendants breached these duties through acts and/or omissions.
42. As a direct and proximate result of the Defendants' breach of the aforementioned duties, the plaintiff Deanna DiGiulio, suffered a permanent and irreversible and a severely diminished sense of taste.
43. That those personal injuries to the plaintiff Deanna DiGiulio were caused by reason of the gross negligence, carelessness, and recklessness of the Defendants, their agents, servants, and/or employees.
44. That the gross negligence, carelessness, and recklessness of the defendant Matrixx, consisted of negligently and carelessly designing, manufacturing, promoting, and distributing Zicam Cold Remedy; of negligently and carelessly failing to properly inspect and test Zicam Cold Remedy prior to its sale and distribution; of negligently and carelessly distributing the Zicam Cold Remedy although it was defective, unsafe, and unsound; and in other ways being careless, reckless, and negligent.
45. That the gross negligence, carelessness, and recklessness of the defendant CVS Pharmacy, Inc. consisted of negligently and carelessly selling and distributing Zicam Cold Remedy although it was defective, unsafe, and unsound; and in other ways being careless, reckless, and negligent.
46. That by reason of the foregoing, the plaintiff Deanna DiGiulio became sick, sore, lame, and disabled by sustaining the injuries described above.
47. By reason of the foregoing plaintiff Deanna DiGiulio seeks compensatory damages in a sum to be determined at the time of trial, but not less than seventy-five thousand dollars ($75,000.00).
48. Additionally, plaintiff Deanna DiGiulio seeks punitive damages as Defendants' wanton, willful, reckless, and/or malicious actions showed a conscious indifference and/or utter disregard for the safety of plaintiff Deanna DiGiulio and proximately caused her injuries.
As and for a Third Cause of Action (Express and Implied Warranty)
49. Plaintiff repeats and realleges each and every allegation set forth above with the same effect as though more fully set forth at length herein.
50. That in connection with the sale of Zicam Cold Remedy defendant Matrixx warranted and represented that Zicam Cold Remedy was of merchantable quality and fit for the purposes intended.
51. At the time of the purchase and delivery of Zicam Cold Remedy, defendant Matrixx, expressly and impliedly warranted to plaintiff that said product was safe and effective when used as directed.
52. Defendant Matrixx claimed “satisfaction guaranteed.”
53. That in fact the Zicam Cold Remedy was of unmerchantable quality nor was it fit for the use or purposes intended, but rather was defective, unsafe, unsound, and dangerous for use.
54. That plaintiff Deanna DiGiulio used Zicam Cold Remedy as directed by the defendant Matrixx and became injured as described above.
55. That by reason of these injuries to Plaintiff, the defendant Matrixx breached said express and implied warranties to Plaintiff.
56. By reason of the foregoing plaintiff Deanna DiGiulio seeks compensatory damages in a sum to be determined at the time of trial, but not less than seventy-five thousand dollars ($75,000.00).
57. Additionally, plaintiff Deanna DiGiulio seeks punitive damages as Defendants' wanton, willful, reckless, and/or malicious actions showed a conscious indifference and/or utter disregard for the safety of plaintiff Deanna DiGiulio and proximately caused her injuries.
As and for a Fourth Cause of Action (Negligent Misrepresentation)
58. Plaintiff repeats and realleges each and every allegation set forth above with the same effect as though more fully set forth at length herein.
59. Defendant Matrixx falsely represented in advertising “satisfaction guaranteed.”
60. That in fact by design defendant Matrixx concealed and suppressed the information mentioned above pertaining to hazardous consequences of using Zicam Cold Remedy.
61. Defendant Matrixx failed to warn plaintiff Deanna DiGiulio and other uses of Zicam Cold Remedy of the threat of anosmia despite receiving hundreds of reports from users that they developed anosmia as a consequence of using Zicam Cold Remedy.
62. These misrepresentations induced the purchase of Zicam Cold Remedy and its use by Plaintiff Deanna DiGiulio.
63. That by reason of these misrepresentations plaintiff Deanna DiGiulio used the Zicam Cold Remedy as directed by the defendant Matrixx and became injured as described above.
64. By reason of the foregoing plaintiff Deanna DiGiulio seeks a judgment for compensatory damages in a sum to be determined at the time of trial, but not less than seventy-five thousand dollars ($75,000.00).
65. Additionally, plaintiff Deanna DiGiulio seeks punitive damages as Defendants' wanton, willful, reckless, and/or malicious actions showed a conscious indifference and/or utter disregard for the safety of plaintiff Deanna DiGiulio and proximately caused her injuries.
WHEREFORE, the plaintiff Deanna DiGiulio, respectfully requests that this Honorable Court grant her judgment for compensatory and punitive damages against defendants Matrixx Initiatives, Inc., Zicam, L.L.C., and CVS Pharmacy, Inc., in whatever amount above Seventy-five Thousand Dollars ($75,000.00) she is found to be entitled, together with interest, costs, and attorney fees.
DEMAND FOR JURY TRIAL
NOW COME the plaintiff Deanna DiGiulio, by and through their attorneys, BENDER, CRAWFORD & BENDER, LLP, and hereby demands a trial by jury.
Dated: Buffalo, New York February 10, 2009
