Florida Appellate Court Holds Admissible Expert Testimony Rejected by Federal Courts in Zicam Suits

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Florida's Fourth District Court of Appeal, in Hood v. Matrixx Initiatives, Inc., No. 4D09-1994, 2010 WL 5093185 (Fla. Dec. 15, 2010), recently reversed a summary judgment for defendants in a case involving Zicam nasal gel. The court held that the causation testimony of the plaintiff's expert, Dr. Bruce Jafek — despite being rejected by several federal courts as unreliable under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) — was admissible under Florida law. Michael Hood sued manufacturers and sellers of Zicam, alleging that he lost his sense of smell after using the product to prevent a cold. He asserted claims of strict liability, negligence and breach of warranty. Hood's sole causation expert, Dr. Jafek, examined Hood, reviewed his medical history and reviewed medical and scientific literature. Jafek's examination revealed damage to Hood's olfactory epithelium (tissue containing nerve cells that detect smell), and he concluded that Hood's allergies, medications, past history, social history, family history and other medical history were not contributing factors. It was Jafek's opinion that (1) Zicam nasal gel, when used according to the directions contained in the package, reached the olfactory epithelium in humans; (2) the active ingredient in Zicam, zinc gluconate, was toxic to the olfactory epithelium; (3) Zicam was toxic to the olfactory epithelium in the amounts delivered with the pump; (4) Zicam toxicity to the olfactory epithelium was permanent in some cases; and (5) the acute nature and strong temporal association of Hood's loss, accompanied by burning pain, strongly supported that Zicam was the cause of Hood's loss of smell.

The standard in Florida for admissibility of scientific expert testimony is general acceptance in the scientific community under Frye v. United States, 293 F. 1013 (D.C. Cir. 1923)....

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