As Ron Miller posted yesterday, the Judicial Panel on MultiDistrict Litigation approved an MDL for Zicam on October 9, 2009. Here’s a link to the Order.
The moving plaintiffs requested that the JPML send ten consumer class action cases to a federal district court, along with 30 later discovered related actions (“tag-along actions”). The Defendants, Matrixx Initiatives, Inc., Zicam, LLC and Zicam Swab, LLC, supported centralization, while other plaintiffs opposed it.
The cases are being transferred to the U.S. District Court for the District of Arizona, and will be overseen by Judge Frederick J. Martone (a 2001 George W. Bush appointee).
Interestingly, the moving plaintiff and other plaintiffs requested that the JPML only consolidate the consumer classes, leaving out personal injury claims. However, the JPML ruled that:
We also decline to separate purported consumer class actions from other actions alleging only personal injury. Centralization of all actions in this docket will allow a single judge to structure pretrial proceedings to accommodate all parties’ legitimate discovery needs while ensuring that the common parties and witnesses are not subjected to discovery demands that duplicate activity that will or has occurred in other actions.
So, the cases will include actions for personal injury. The judge will have to perform some legal gymnastics to keep everything properly separated, but it is a good ruling. Of course, in all of these actions (now designated as MDL-2096), a major issue will be whether Zicam products (Zicam Cold Remedy Nasal Gel; Zicam Cold Remedy Swabs, Kids Size; and Zicam Cold Remedy Gel Swabs) cause anosmia, or loss of smell. See our previous Zicam posts.