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If you Can Not Taste or Smell — Did You Use Zicam?


Imagine you have lost your sense of smell.

Imagine that favorite smell, the smell of clean sheets, just isn’t there anymore.

Imagine you cannot taste anything.

Imagine your once favorite dish just tastes…well, wrong.

That is just a little of what many users of Zicam will endure for the rest of their lives.

Currently, legal cases against the maker of Zicam are pending in federal court and have been transferred to the Honorable Judge Martone in Phoenix.  In February of 2010, the judge held his first hearing and it seems that Judge Martone, to his credit, is trying to move the cases far more quickly than can be “normal” for these types of proceedings.

The judge previously requested a joint plan from the parties with regard to timing and scheduling for the cases, but ultimately rejected the proposals from both sides.  He has ordered that all of the work that routinely takes 2 to 3 years to finish in other MDL proceedings be completed within the next several months. In Multi-District Litigation there is a great deal of work that has a common application to all the cases pending, including:

  • Document discovery
  • Corporate depositions
  • Production of expert witness reports
  • Depositions of experts
  • Preparation of briefs and arguing various legal and evidentiary issues common to all the cases

The court will be holding a hearing on class certification on January 21, 2011, as well as a determination of the sufficiency of the scientific and medical evidence supporting the link between the Zicam products and the loss of sense of smell and taste and other injuries suffered by the plaintiffs.

The Court’s hearing concerning scientific evidence is what is known as a “Daubert hearing.”  Daubert hearings present very significant hurdles for plaintiffs to clear, as the standards imposed by federal courts are often difficult.   The plaintiffs have the burden of proving  that there is sufficient scientific support to substantiate causation, or, in other words,  that the use of Zicam can be proved as the primary cause of the plaintiffs’ injuries. There is great leeway given to the judge in being able to dismiss claims where the judge feels that the science is inadequate.

The judge has also imposed a deadline of February 1, 2011, for completion of all of the depositions of the Defendants’ employees, and on May 6, 2011 will hear legal motions on various generic legal issues that could result in a dismissal of cases if the defendants are successful.

The judge has indicated that he fully intends to complete his role as the coordinating MDL judge for the Zicam cases by July of 2011, and will transfer all of the pending cases back to local courts for completion of case-specific discovery and scheduling of individual trial dates, if a global settlement of all of the cases is not reached before then.

It does not appear that Judge Martone is going to employ the traditional “bellwether” trial plan, which would have delayed the start of case-specific discovery in the pending cases while the MDL court focused on preparing only a few individual cases for trials to be conducted by the MDL judge. Historically, most MDL cases involving drugs and medical devices have settled just prior to the transfer of some or all of the pending cases back to local courts.

Judge Martone has appointed a special master to assist with monthly mandatory settlement conferences in order to motivate continued discussions for concluding the cases without the extraordinary expense of multiple trials and litigation of individual cases in federal courts around the country It would seem that the Court recognizes the benefit to all the parties for economical and expeditious handling of these cases.

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