Boston Accident Lawyer Blog

While this post is about product liability law, it’s also about the age-old story of corporate greed and deception. Ever hear of on over-the-counter cold remedy called Zicam? Most people have. - Matrixx Initiatives Inc. and Zicam L.L.C., were jointly the developers, manufacturers and distributor of this product. Zicam was marketed with the claim that it could shorten the symptoms of the common cold, if taken at the onset of symptoms. The zinc gluconate formulation generated approximately 70% of the company's sales. While the product used to be manufactured and sold as a nasal gel, it’s now sold as an oral spray. There’s a reason for that. And that leads us to a typical story of corporate deception.

It seems that in the late 1990’s, Matrixx became aware from several sources (it’s alleged,) of a very serious side effect of using Zicam. That serious side effect is called “anosmia”, which is the medical term for loss of the sense of smell. In 1999, it’s alleged that a Matrixx staffer was told by the neurological director of a research organization called the Smell & Taste Treatment and Research Foundation, Ltd. that a "cluster of patients" had suffered anosmia after using Zicam. Three years later, as reports of these side effects grew, Matrixx’s Vice President for Research and Development contacted a scientist at the University of Colorado Health Sciences Center , allegedly was told of the results of previous studies linking zinc sulfate [a slightly different zinc compound] to loss of smell. This scientist later buttressed these initial reports, by forwarding to Matrixx with further abstracts, confirming zinc’s toxicity.

About a year later, a colleague of that scientist (from the University of Colorado Health Sciences Center,) observed 10 patients suffering from anosmia following Zicam use. These scientists then prepared a poster for display at a meeting of the American Rhinologic Society, in connection with a substantive presentation they were going to make at this medical association meeting. After learning of the scientists’ plans, Matrixx warned them that they were not allowed to use the Matrixx company name or the product name (Zicam.) As a result, the scientists deleted this information from their posters and presentation.

Shortly following these events, two patients sued Matrixx in a products liability lawsuit alleging Zicam-related anosmia; the number of cases increased steadily since then. On June 16, 2009, the FDA advised consumers to discontinue use of three nasally administered versions of Zicam Cold Remedy, due to the serious risk of anosmia with them. In total, hundreds of legal claims have been brought due to the medical harm this product caused, resulting in tens of millions ofm dollars in settlements.

In this week’s U.S. Supreme Court decision brought by a group of investors in Matrixx, the plaintiffs’ had alleged that Matrixx responded to reports that its product caused this medical harm, with a series of public statements that were misleading, and that essentially amounted to securities fraud. In essence, the plaintiffs in this case were alleging a corporate cover-upb by Matirxx. The court agreed with the investors, essentially confirming that Matrixx sought to withold damaging medical data from the public. While the court’s opinion dealt primarily with legal issues relating to securities law, the court affirmed the underlying allegations made by the plaintiffs that Matrixx knew or should have known that their product was dangerous and presented unreasonable safety risks to the consuming public, yet did little to correct or cure the defect.

Does the same story never end with big corporations? Whether it was the Ford Pinto gas tank litigation 40 years ago, the Dalkon Shield litigation, or the banking and mortgage crisis that is still plaguing our economy, the story never seems to change: Big business, in its relentless drive for profits, puts earnings first, and places safety far behind. The stories of products liability that can fill those two end points – from the 1970’s to present, are so numerous it’s hard to fathom. As a Boston, Massachusetts product liability lawyer, I can assure you that if our tort system – the same one tort “reform” would dismantle – didn’t exist as it does, injured consumers would have little to no redress. Imagine what that would be like: Corporations operating in a legal environment where they can operate with little regard for public and consumer safety, insulated from serious legal and financial liability Not a pleasant scenario.

At the Law office of William D. Kickham and Associates, we know how to deal with violations of Massachusetts product liability law. We know what to look for, how to present these cases, and how to secure the maximum financial recovery for our clients. If you think that you or someone you care about has been harmed by a defective product, call us for a free consultation. We know how to guide you through this complicated area of law. Free advice: Do not go to a general law firm about this kind of problem. This area of law is highly specialized, and requires a specialist who has lengthy experience and expertise in it. We can provide you that specialized expertise, and get you the best legal result possible. Contact us for a free consultation.

Too often within the escalating debate over “tort reform”, the facts take a distant back seat to ever more shrill demagoguery.

It seems that all we ever hear from proponents of tort reform, and their Republican lapdogs in Congress and in State Houses across the country, are noxiously recycled claims that liability insurance premiums are supposedly caused by “frivolous lawsuits, run amok.” These liability insurer-funded interests claim that if we just enact tort reform (translation: If we decimate our civil justice system,) all kinds of liability premiums, from auto insurance to homeowners insurance to medical malpractice insurance, would drop and stay down. Think again, America: It’s not so. And it rarely, if ever, has been. These claims are the worst form of legislative bait-and-switch perpetrated on the American public. And the driving forces behind tort “reform” – the liability insurance industry – knows it.

Though I have to hand it to them when it comes to campaign strategy planning, because they also know something else: They know that they can’t be the ones to most openly make these arguments, or they’ll appear too self-interested. After all, they're the ones who stand to reap millions in premium that they'll never pay out to injury victims, if the doors to the courthouse are forever locked. The best strategic tactic in this case? Get other groups to “front” these claims. The best groups to get to do this? Their customers, who are being gouged by the high liability premiums their carriers charge them. Who are those customers? Doctors, business owners, commercial property owners, private property owners, homeowners, and anyone who owns a car. Anyone who buys liability insurance of almost any kind. All these groups are angry, motivated forces who can be (quite literally) conned into believing that the reason their premiums are so high, is a “lawsuit crisis.” Not a bad strategy, from a public affairs campaign standpoint. Displaced anger is precisely what’s fueling the Tea Party movement, and it works. Just ask any master of misinformation (Karl Rove comes to mind.)

The problem is, almost everything about tort "reform", is a lie. Or, at the very least, wildy distorted from the truth.

A recent editorial by The Boston Globe, in commenting on recent Congressional activity over the subject of medical malpractice reform, noted that in the over thirty states where some form of medical malpractice “reform” has been enacted by state legislatures, little to no lasting malpractice premium reductions have been experienced. Care to know what has been experienced as “lasting” and “deep” in those states? The loss of crucial legal rights by citizens of those states, to recover for many times horrific injuries caused by medical negligence, that’s what. Those rights were rapidly taken away in the frenzy of “tort reform” that was hyped in those states. In many of those states now, entire classes of medical negligence and other injury cases can no longer be brought to a jury. Of the remaining cases that are allowed, caps on damages –economic and non-economic – are cruelly in place, preventing injured victims from recovering anything beyond a set cap, no matter what the evidence, no matter how egregious the negligence.

Whether the case is a car accident case, a medical malpractice case, or a premises liability case, injury victims in those states are now treated more like statistics and numbers, than real people whose lives have been forever altered due to someone else’s negligence.

And the promised insurance premium reductions that were trumpeted in the process of this destruction of civil justice rights? Oh, that. Yes, in some states there was temporary premium relief – nothing more than token, temporary cosmetic measures by the insurance companies that won at the legislative feeding trough of tort reform. After a year or so, those premiums came right back up – but the civil justice and tort recovery rights that were trampled in the process, never came back. They’re gone. And the legal rights of injury victims in those states? Gone with the wind.

So remember this the next time you hear some talking head on TV, or some blathering loudmouth on radio go on and on about why tort “reform” should be enacted. Remember what “bait and switch” means on this subject. And remember this: If tort “reform” is to be enacted in the state where you live, are you willing to be the first person to lose your rights to recover in court for possibly horrendous, lifelong injuries? Are you willing to be the first person who is locked out of the courthouse, if you’re injured by someone else’s negligence?

See through the “bait and switch” in this debate. Don’t let it happen. Because when it comes to losing these critical legal rights to bring your injury case to court, I’ll borrow a tag line from another worthy cause: Extinct is forever.