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Daniel J. Radacosky
State Bar #011673
THE RADACOSKY LAW FIRM, P.L.C.
10429 S. 51st Street
Suite 200
Phoenix, Arizona 85044-5237
(480) 477-8484
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James L. Warlaumont
PETERSON REED & WARLAUMONT, L.L.C.
800 Boston Building
9 Exchange Place
Salt Lake City, Utah 84111
(801) 364-4040
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Attorneys for Plaintiffs
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COPY
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IN THE SUPERIOR COURT OF THE STATE OF ARIZONA
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IN AND FOR THE COUNTY OF MARICOPA
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ANNABEL BENTLEY, a single woman;
RODNEY C. BRITT and COLLEEN D.
BRITT, husband and wife; and
TERRENCE D. WOODRUFF and CAROL
DEE WOODRUFF, husband and wife,
Plaintiffs,
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vs.
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MATRIXX INITIATIVES, INC., a Delaware
corporation; ZICAM L.L.C., an Arizona
limited liability company; BOTANICAL
LABORATORIES, INC., a Washington
corporation; ABC COMPANIES 1-20; and
DOES 1-20,
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Defendants.
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No. CV2004-001338
COMPLAINT
(Tort—Non-Motor Vehicle)
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Plaintiffs, by and through their undersigned counsel, for their Complaint
allege as follows:
1.
Plaintiff Annabel Bentley is an unmarried adult resident of Salt Lake City,
Utah. She is a building manager who avidly gardens and cooks.
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2.
Plaintiffs, Rodney Britt and Colleen D. Britt, are husband and wife, and
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are adult residents of Opelika, Alabama. Plaintiff Rodney Britt is a college academic
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dean, and is a frequent traveler who enjoys gourmet cooking.
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3.
Plaintiffs, Terrence D. Woodruff and Carol Dee Woodruff, are husband
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and wife, and are adult residents of Albuquerque, New Mexico. Plaintiff Terrence D.
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Woodruff is a retired Colonel from the United States Air Force, a business unit
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manager, and a staff systems analyst for a company that manages space systems.
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As such, he is required to conduct flight line testing of jets and fighter airplanes, which
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requires a keen sense of smell.
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4.
Defendant Matrixx Initiatives, Inc. (hereafter "Matrixx”), is a Delaware
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corporation with its principle place of business in Phoenix, Arizona. It is the parent of
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or a related entity to Zicam L.L.C., an Arizona limited liability company, and upon
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information and belief, acted in concert with or controlled Zicam L.L.C., or its
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predecessor, Gel Tech L.L.C., and is independently or vicariously liable for the acts
and omissions providing the bases for the Plaintiffs’ claims.
5.
Defendant Zicam L.L.C. (hereinafter “Zicam”) is an Arizona limited
liability company, and the successor to Gel Tech L.L.C., an Arizona limited liability
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company, that developed, manufactured, marketed, and/or distributed Zicam Cold
Remedy nasal gel.
6.
Defendant Botanical Laboratories, Inc. is a Washington corporation that
at all times material hereto, manufactured Zicam Cold Remedy nasal gel for
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Defendant Matrixx and/or Defendant Zicam.
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7.
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Arizona out of which these causes of action arise.
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Defendant Botanical Laboratories caused events to occur in the State of
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Defendants ABC Companies 1-20 are fictitious names of real domestic
or foreign corporations, professional corporations, limited partnerships, partnerships,
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limited liability companies, or other business entities whose true identities are
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presently unknown to Plaintiffs, and that at all times material hereto were authorized to
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do and/or doing business in the State of Arizona. Upon information and belief, at all
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times pertinent hereto, some or all of the named defendants were acting as the duly
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authorized agents and/or servants of the fictitiously-designated defendants or,
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alternatively, stand in some relationship to them so as to impute liability upon them.
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Alternatively, the fictitiously-designated defendants committed independent acts
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and/or omissions that render them liable to Plaintiffs and that directly and proximately
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caused injuries damages to Plaintiffs as more fully set forth herein.
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9.
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Defendants Does 1-20 are fictitious names of real persons and/or
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entities whose true identities are presently unknown to Plaintiffs. Upon information
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and belief, at all times pertinent hereto, some or all of the named defendants were
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acting as the duly authorized agents and/or servants of the fictitiously-designated
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defendants or, alternatively, stand in some relationship to them so as to impute liability
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upon them. Alternatively, the fictitiously-designated defendants committed
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independent acts and/or omissions that render them liable to Plaintiffs and that directly
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and proximately caused injuries damages to Plaintiffs as more fully set forth herein.
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10.
The amount in controversy exceeds the jurisdictional minimum of this
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Court.
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This Court has jurisdiction over the subject matter and over the parties to
this action.
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Venue is proper in Maricopa County, Arizona.
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At all times material hereto, Defendant Matrixx was engaged in the
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development, manufacture, and marketing of over the counter pharmaceuticals,
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including Zicam Cold Remedy nasal gel, which it markets as a patented
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“homeopathic” remedy that is available to the general public without a prescription.
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14.
Defendant Zicam is a wholly owned subsidiary of Matrixx Initiatives, Inc.
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and it produces, markets, sells and distributes Zicam Cold Remedy nasal gel as a
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patented "homeopathic" remedy that is available to the general public without a
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prescription.
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15.
Defendants Matrixx and Zicam develop, produce, manufacture, market
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and distribute Zicam Cold Remedy nasal gel.
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16.
Upon information and belief, at all times material hereto, Defendant
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Botanical Laboratories, Inc. manufactured and packaged Zicam Cold Remedy nasal
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gel for sale and distribution by Defendants Matrixx and/or Zicam.
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17.
At all times material hereto, the Defendants each knew or reasonably
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expected that Zicam Cold Remedy would be distributed throughout the nation.
18.
Zicam Cold Remedy nasal gel is packaged in various manners and with
various delivery systems, all of which are developed, manufactured and marketed by
or with the express consent of Defendant Matrixx and/or Defendant Zicam.
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19.
One such version of Zicam Cold Remedy nasal gel is developed,
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manufactured, marketed, and distributed by Defendant Matrixx and/or Defendant
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Zicam in a nasal pump format (hereinafter referred to as the product’s “delivery
system”).
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The nasal pump by which Zicam is administered is intended to apply the
Zicam Cold Remedy nasal gel within the nose.
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21.
Zicam Cold Remedy nasal gel contains divalent ionized zinc in the form
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of zinc gluconate, which is listed as the product's active ingredient under the trade
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name of "zincum gluconium 2x."
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Zinc gluconate contains a divalent zinc ion.
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Zinc gluconate is a chemical compound characterized as a "zinc salt".
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If used as directed, the Zicam Cold Remedy nasal pump delivers the
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Zicam Cold Remedy nasal gel containing zinc gluconate to the nasal membranes of
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the user of the product.
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25.
Zicam Cold Remedy is not a "drug" as that term is defined in § 201 of
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the Federal Food, Drug and Cosmetic Act, Chapter 675, 52 Stat. 1040, 21 USC § 321.
26.
Zicam Cold Remedy nasal gel is not and has never been approved by
the United Stated Food and Drug Administration (the “FDA”) for safety and/or efficacy.
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Zicam Cold Remedy's labeling has never been approved by the FDA.
28.
Defendant Matrixx, as the successor corporation to Gumtech
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International, Inc., is legally responsible for any and all civil liability of Gumtech
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International, Inc. under the doctrine of successor liability.
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Defendant Zicam, as the successor limited liability company to Gel Tech
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L.L.C., is legally responsible for any and all civil liability of Gel Tech L.L.C. under the
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doctrine of successor liability.
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COUNT ONE
(Strict Products Liability—Defective and Unreasonably Dangerous Design)
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30.
Plaintiffs incorporate the foregoing allegations of the Complaint herein
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by reference as though fully set forth at length.
31.
Plaintiffs Annabel Bentley, Rodney C. Britt, and Terrence D. Woodruff
are hard working individuals who own their own homes and avidly cook, garden, and
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recreate. Plaintiffs Annabel Bentley, Rodney C. Britt, and Terrence D. Woodruff each
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depended on their senses of smell and taste to conduct the ordinary affairs of life.
32.
Prior to using the product called “Zicam Cold Remedy”, the Plaintiffs
Annabel Bentley, Rodney C. Britt, and Terrence D. Woodruff had normal senses of
taste and smell.
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Defendants Matrixx and Zicam describe Zicam Cold Remedy as a
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remedy for the common cold and claim that it has been developed to reduce the
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severity and duration of the common cold.
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34.
Plaintiffs Annabel Bentley, Rodney C. Britt, and Terrence D. Woodruff,
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each used Zicam Cold Remedy nasal gel for its intended purpose.
35.
Plaintiffs Annabel Bentley, Rodney C. Britt, and Terrence D. Woodruff,
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each used Zicam Cold Remedy nasal gel in a reasonably foreseeable manner, and as
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directed by the product’s labeling and directions.
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36.
Plaintiffs Annabel Bentley, Rodney C. Britt, and Terrence D. Woodruff,
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did not alter, modify or misuse Zicam Cold Remedy nasal gel in any respect.
37.
Zicam Cold Remedy nasal gel, independently and/or in combination with
its nasal pump delivery system, is a defective and unreasonably dangerous product.
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38.
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product left the control of the respective Defendants.
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The defect or defects in Zicam Cold Remedy nasal gel existed when the
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Zicam Cold Remedy nasal gel was expected to and did reach the users
without substantial change in the condition in which Defendants sold it.
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40.
Plaintiffs Annabel Bentley, Rodney C. Britt, and Terrence D. Woodruff
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could not have discovered and did not discover the defect or defects in Zicam Cold
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Remedy nasal gel through the exercise of reasonable care.
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41.
As a direct and proximate result of Defendants’ defective and
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unreasonably dangerous product, Plaintiffs Annabel Bentley, Rodney C. Britt, and
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Terrence D. Woodruff sustained injuries and damages in an amount to be proven at
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trial.
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42.
Plaintiffs Annabel Bentley, Rodney C. Britt, and Terrence D. Woodruff
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used the Zicam Cold Remedy and each immediately lost his or her sense of smell and
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taste.
43.
Plaintiffs Annabel Bentley, Rodney C. Britt, and Terrence D. Woodruff
have seen physicians who diagnosed them as having anosmia, i.e. the loss of the
sense of smell and taste.
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44.
The anosmia sustained by Plaintiffs Annabel Bentley, Rodney C. Britt,
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and Terrence D. Woodruff was a direct and proximate result of the use of Zicam Cold
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Remedy nasal gel.
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45.
Despite the treatments, and physicians’ visits each have received, the
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senses of smell and taste of Plaintiffs Annabel Bentley, Rodney C. Britt, and Terrence
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D. Woodruff have and continue to be severely impaired.
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As a direct and proximate result of their use of the Zicam Cold Remedy
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nasal gel, Plaintiffs Annabel Bentley, Rodney C. Britt, and Terrence D. Woodruff have
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sustained and will continue to sustain damages including, but not limited to, the loss
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of their senses of smell and taste; loss of the enjoyment of life; anxiety, inconvenience
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and emotional distress; a diminished earning capacity; and additional injuries and
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damages to be proven at trial.
47.
By virtue of their aforesaid conduct, the Defendants and each of them
consciously pursued a course of conduct knowing that it created a substantial risk of
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significant harm to others. Alternatively, the Defendants acted to serve their own
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interests, having reason to know and consciously disregarding a substantial risk that
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their conduct might significantly injure the rights of others.
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48.
The conduct of the Defendants was willful, wanton, and so outrageous
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as to justify an award of punitive damages to punish them and to deter similar
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misconduct by them and by others in the future.
COUNT TWO
(Strict Products Liability—Failure to Warn)
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49.
Plaintiffs incorporate herein by reference the foregoing allegations of the
Complaint as though fully set forth at length.
50.
Among other ingredients, Zicam Cold Remedy nasal gel contains zinc
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and/or zinc gluconium, which is known to cause damage to olfactory nerves and injure
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the senses of smell and/or taste if applied through the nose.
51.
The Defendants did not warn users that Zicam Cold Remedy nasal gel
contained ingredients, including zinc and/or zinc gluconium that could cause damage
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to olfactory nerves and injure the senses of smell and/or taste if applied through the
nose.
52.
The Defendants also did not warn users that the products could be
dangerous.
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53.
As a direct and proximate result of the Defendants’ respective and
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collective failures to warn, Plaintiffs Annabel Bentley, Rodney C. Britt, and Terrence
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D. Woodruff sustained injuries and damages as set forth above.
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54.
By virtue of their aforesaid conduct, the Defendants and each of them
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consciously pursued a course of conduct knowing that it created a substantial risk of
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significant harm to others. Alternatively, the Defendants acted to serve their own
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interests, having reason to know and consciously disregarding a substantial risk that
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their conduct might significantly injure the rights of others.
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55.
The conduct of the Defendants was willful, wanton, and so outrageous
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as to justify an award of punitive damages to punish them and to deter similar
misconduct by them and by others in the future.
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COUNT THREE
(Negligence)
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56.
Plaintiffs incorporate herein by reference the foregoing allegations of the
Complaint as though fully set forth at length.
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57.
At all times material hereto, the Defendants were, at a minimum,
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negligent in developing, manufacturing, testing, labeling, distributing, supplying,
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promoting, marketing and selling Zicam Cold Remedy. The Zicam Defendants’
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negligence included, but was not limited to, the following:
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a.
Promoting and selling Zicam Cold Remedy as safe and effective,
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when they knew or should have known that the product was
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dangerous.
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b.
Placing their product in the stream of commerce when they knew
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or should have known that the product was dangerous and
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defective and was not accompanied by adequate warnings
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regarding its use.
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c.
Failing to warn the public, including Plaintiffs, that Zicam Cold
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Remedy was unreasonably dangerous, and could cause a loss of
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smell and taste.
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d.
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Encouraging and promoting the use of Zicam Cold Remedy to
persons such as Plaintiffs who Defendants knew or should have
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known were likely to purchase and use it.
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e.
contained in their product were safe.
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On information and belief, in failing to ensure that the ingredients
f.
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On information and belief, in failing to ensure that the delivery
system (i.e. nasal pump spray) used to apply their product was
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safe.
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g.
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Upon information and belief, in failing to conduct proper testing of
their product and its delivery system.
h.
Upon information and belief, in failing to heed customer
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complaints of anosmia and/or other injuries believed to be cause
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by the product and/or its delivery system, and to adequately
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investigate the same.
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58.
As a direct and proximate result of the Defendants’ negligence, the
Plaintiffs Annabel Bentley, Rodney C. Britt, and Terrence D. Woodruff sustained
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injuries and damages as set forth above.
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59.
By virtue of their aforesaid conduct, the Defendants and each of them
consciously pursued a course of conduct knowing that it created a substantial risk of
significant harm to others. Alternatively, the Defendants acted to serve their own
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interests, having reason to know and consciously disregarding a substantial risk that
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their conduct might significantly injure the rights of others.
60.
The conduct of the Defendants was willful, wanton, and so outrageous
as to justify an award of punitive damages to punish them and to deter similar
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misconduct by them and by others in the future.
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COUNT FOUR
(Breach of Warranties)
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61.
Plaintiffs incorporate herein by reference the preceding allegations as if
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fully set forth herein.
62.
Defendants expressly or implicitly warranted that Zicam Cold Remedy
merchantable, free from defects, fit for the purposes for which it was intended and
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sold, and fit for its reasonably foreseeable uses.
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63.
Defendants breached their warranties.
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64.
Defendants breach or breaches of warranties were a proximate cause of
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the Plaintiffs’ injuries and damages.
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65.
By virtue of their aforesaid conduct, the Defendants and each of them
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consciously pursued a course of conduct knowing that it created a substantial risk of
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significant harm to others. Alternatively, the Defendants acted to serve their own
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interests, having reason to know and consciously disregarding a substantial risk that
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their conduct might significantly injure the rights of others.
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66.
The conduct of the Defendants was willful, wanton, and so outrageous
as to justify an award of punitive damages to punish them and to deter similar
misconduct by them and by others in the future.
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COUNT FIVE
(Common Law Fraud)
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67.
Plaintiffs incorporate herein by reference the preceding allegations as if
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fully set forth herein.
68.
Acting fraudulently, intentionally, recklessly or negligently, Defendants
Matrixx and Zicam misrepresented the safety of Zicam Cold Remedy nasal gel and,
on information and belief, concealed material adverse information regarding its safety
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from the consuming public when it had a duty to disclose the information.
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69.
Defendants Matrixx and Zicam made false or misleading statements and
omissions about the safety of Zicam Cold Remedy nasal gel in its labeling,
advertising, promotional materials and other marketing efforts.
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70.
Defendants Matrixx and Zicam made these misrepresentations and
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concealed adverse information when they knew or should have known, because it
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was in a superior position to know, that Zicam Cold Remedy nasal gel had
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characteristics that made it dangerous or, in the alternative, Defendants Matrixx and
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Zicam made the misrepresentations with reckless disregard for their truth or falsity.
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71.
The information misrepresented or not fully disclosed was material.
72.
Defendants Matrixx and Zicam made the misrepresentations and
concealed adverse information with the intention that the consuming public, including
Plaintiffs, would rely on the misrepresentations or omissions by purchasing and using
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Zicam Cold Remedy nasal gel.
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73.
Defendants Matrixx and Zicam should have reasonably foreseen that
Plaintiffs Annabel Bentley, Rodney C. Britt, and Terrence D. Woodruff and persons
similarly situated would rely on the facts misrepresented and/or not disclosed.
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74.
Plaintiffs Annabel Bentley, Rodney C. Britt, and Terrence D. Woodruff
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reasonably relied on and were induced by the misrepresentations and/or failures to
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disclose by Defendants Matrixx and Zicam in selecting and using Zicam Cold Remedy
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nasal gel.
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75.
The material misrepresentations and failures to disclose by Defendants
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Matrixx and Zicam were a direct and proximate cause of the Plaintiffs’ injuries and
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damages.
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76.
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By virtue of their aforesaid conduct, Defendants Matrixx and Zicam
consciously pursued a course of conduct knowing that it created a substantial risk of
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significant harm to others. Alternatively, Defendants Matrixx and Zicam acted to serve
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their own interests, having reason to know and consciously disregarding a substantial
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risk that their conduct might significantly injure the rights of others.
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77.
The conduct of Defendants Matrixx and Zicam was willful, wanton, and
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so outrageous as to justify an award of punitive damages to punish them and to deter
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similar misconduct by them and by others in the future.
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COUNT SIX
(Consumer Fraud)
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78.
Plaintiffs incorporated herein by reference the foregoing allegations of
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the Complaint as though fully set forth at length.
79.
As set forth above, Defendants Matrixx and Zicam used deception;
deceptive acts or practices; fraud; false pretenses; misrepresentations; and/or
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concealment, suppression, or omission of a material fact in connection with the sale
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or advertisement of Zicam Cold Remedy nasal gel.
80.
Defendants Matrixx and Zicam intended that others rely upon such
deception; deceptive acts or practices; fraud; false pretenses; misrepresentations;
and/or concealment, suppression, or omission of a material fact in connection with the
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sale or advertisement of Zicam Cold Remedy nasal gel.
81.
Plaintiffs Annabel Bentley, Rodney C. Britt, and Terrence D. Woodruff
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sustained injuries and damages, as set forth above, as a direct and proximate result
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of reliance upon Defendants Matrixx’s and/or Zicam’s deception; deceptive acts or
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practices; fraud; false pretenses; misrepresentations; and/or concealment,
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suppression, or omission of a material fact in connection with the sale or
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advertisement of Zicam Cold Remedy nasal gel.
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82.
The acts and/or omissions of Defendants Matrixx and Zicam constitute
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consumer fraud pursuant to Arizona’s Consumer Fraud Act, A.R.S. § 44-1521 et seq.
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83.
By virtue of their aforesaid conduct, Defendants Matrixx and Zicam
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consciously pursued a course of conduct knowing that it created a substantial risk of
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significant harm to others. Alternatively, Defendants Matrixx and Zicam acted to serve
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their own interests, having reason to know and consciously disregarding a substantial
risk that their conduct might significantly injure the rights of others.
84.
The conduct of Defendants Matrixx and Zicam was willful, wanton, and
so outrageous as to justify an award of punitive damages to punish them and to deter
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similar misconduct by them and by others in the future.
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COUNT SEVEN
(Negligent Misrepresentation)
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85.
Plaintiffs incorporate herein by reference the foregoing allegations of
the Complaint as though fully set forth at length.
86.
Defendants Matrixx and Zicam provided others, including Plaintiffs
Annabel Bentley, Rodney C. Britt, and Terrence D. Woodruff, with false or incorrect
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information regarding Zicam Cold Remedy nasal gel.
87.
Defendants Matrixx and ZIcam intended that others, including Plaintiffs
Annabel Bentley, Rodney C. Britt, and Terrence D. Woodruff, rely upon the
information and provided it for that purpose.
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88.
Defendants Matrixx and Zicam failed to use reasonable care or
competence in obtaining or communicating the information.
89.
Plaintiffs Annabel Bentley, Rodney C. Britt, and Terrence D. Woodruff
relied upon the information.
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90.
The reliance by Plaintiffs Annabel Bentley, Rodney C. Britt, and
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Terrence D. Woodruff was justified.
91.
As a direct and proximate result of the negligent misrepresentations of
Defendants Matrixx and Zicam, Plaintiffs Annabel Bentley, Rodney C. Britt, and
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Terrence D. Woodruff sustained injuries and damages as set forth above.
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92.
By virtue of their aforesaid conduct, Defendants Matrixx and Zicam
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consciously pursued a course of conduct knowing that it created a substantial risk of
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significant harm to others. Alternatively, Defendants Matrixx and ZIcam acted to
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serve their own interests, having reason to know and consciously disregarding a
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substantial risk that their conduct might significantly injure the rights of others.
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93.
The conduct of Defendants Matrixx and Zicam was willful, wanton, and
so outrageous as to justify an award of punitive damages to punish them and to deter
similar misconduct by them and by others in the future.
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COUNT EIGHT
(Loss of Consortium)
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94.
Plaintiffs incorporate herein by reference the foregoing allegations of the
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Complaint as though fully set forth at length.
95.
As a further direct and proximate result of the negligence of Defendants,
Plaintiffs Colleen D. Britt and Carol Dee Woodruff lost the care, comfort, society and
services of their respective spouses, and may lose the same in the future.
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WHEREFORE, Plaintiffs pray for judgment against Defendants, and each of
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them, as follows:
A.
For general damages in an amount to be determined by the jury;
B.
For the reasonable value of Plaintiffs’ respective medical and related
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expenses incurred to date, and any which may be incurred in the future;
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C.
For Plaintiffs’ lost wages to date and which may be lost in the future, and
their lost earning capacity, if any;
D.
For the damages of Plaintiffs Colleen D. Britt and Carol Dee Woodruff for
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the loss of care, comfort, society and services of their respective spouses;
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E.
For an award of punitive damages in an amount to be determined at trial,
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but in an amount sufficient to punish the Defendants and to deter similar misconduct
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by Defendants and others in the future;
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F.
For Plaintiffs’ costs incurred herein; and
E.
For such other and further relief as the Court deems just and proper.
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A JURY TRIAL IS DEMANDED.
DATED on January 23, 2004.
James L. Warlaumont
PETERSON REED & WARLAUMONT, L.L.C.
800 Boston Building
9 Exchange Place
Salt Lake City, Utah 84111
Attorneys for Plaintiffs
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THE RADACOSKY LAW FIRM, P.L.C.
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By_____________________________
Daniel J. Radacosky
10429 S. 51st Street
Suite 200
Phoenix, Arizona 85044-5237
Attorney for Plaintiffs
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