“Under the ‘ordinary consumer’ standard, a product designed for intranasal use is expected not to cause irreparable injury to the nose if used in a foreseeable manner,” said U.S. District Judge William Alsup in his decision allowing Californian Michael Nelson’s lawsuit against the manufacturer of Zicam nasal gel and spray to go ahead. Nelson sued after losing his sense of smell, which followed his use of the nasal spray.
Judge Alsup has dismissed some of Nelson’s claims, including the claim that the product was not manufactured “in accordance with prevailing industry and scientific standards,” as well as claims that the company committed fraud by intentional misrepresentation and false promise.
The judge upheld claims of a design defect and fraud by concealment, about which Alsup commented, “It may be inferred that defendants concealed the unfavorable studies with fraudulent intent, for the purpose of making a profit; it may also be inferred that plaintiff, who was unaware of the studies or their results, would have acted differently had he known of the suppressed facts.”
Nelson claims that he would not have used the product, which contained zinc, in 2006 and 2008 had he known that zinc has been associated with loss of the sense of smell. In 2009, the FDA issued a warning urging consumers not to use Zicam products due to the risk of damage posed by zinc.
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