Lawsuits you should know about

The over the counter intranasal cold remedy called Zicam was recalled by manufacturer in June of 2009. Zicam is a product that was designed to be used to decrease the duration of the common cold. It was introduced into the marketplace in 1999 by Zicam, LLC, a wholly owned subsidiary of Matrixx Initiatives, Inc. The products that were affected were Zicam Cold Remedy Nasal Gel, Zicam Cold Remedy Swabs, and Zicam Cold Remedy Swabs Kids Size.

On June 16, 2009 the FDA issued a public safety alert regarding the three Zicam products listed above. The FDA reported that it had received 130 reports of anosmia from people who have used the product. Anosmia is the inability to smell. In the news release issued by the FDA, the agency advises that this anosmia might be long lasting, or even permanent.

According to the information provided by the FDA in some of the cases of anosmia reported, the condition was experienced by a person after the first dose. Other users indicated their loss of their sense of smell happened after using the product multiple times.

Right now there are several lawsuits pending in federal court against the maker of Zicam. They allege that the active ingredient in these cold remedies, zinc gluconate, produces a caustic action on the nasal passages, and over time could lead to anosmia.  On September 24, 2009 there will be arguments heard in a Richmond, VA court over whether all pending and future Zicam lawsuits should be consolidated in one federal court as an MDL.  MDL is a legal procedure where one judge oversees all pending civil cases of a similar type.

The pet store chain Petland, Inc. is the defendant in a lawsuit filed against the company by the Humane Society of the United States on Monday, March 16, 2009 in the US District Court in Phoenix, AZ.  Other pet owners who say they purchased sick puppies from Petland are also parties in the suit.  The lawsuit seeks class action status and challenges the companies’ conduct under the federal racketeering statute and under consumer protection laws of 20 states.

The lawsuit alleges that Petland intentionally misled thousands of customers who purchased puppies at their stores.  According to the lawsuit Petland led their customers into believing the puppies purchased came from the finest breeders in the country.  According to the Humane Society many of the puppies sold by the store were bred in puppy mills in filthy conditions with inadequate care or socialization.

The plaintiffs are seeking changes in how the puppies are bread, to stop what they call unfair and deceptive sales practices, and financial damages to help cover the veterinary costs associated with the purchased puppies.

An executive of Petland stated these were false accusations, and the store in fact only offers “healthy, happy and well-socialized pets” for sale to their customers.

Dilantin is a brand name of the generic drug phenytoin sodium that is manufactured by Pfizer.  It is used to lessen the runaway brain activity seen in epileptic patients when suffering a seizure by reducing the electrical conductance among brain cells. 

Phenytoin sodium was the first modern antiepileptic drug developed and has been in use since 1938.  Dilantin was proved for use by the Food and Drug Administration (FDA) in 1982.  Like most drugs, there are common side effects such as constipation, dizziness, headache, nausea, and vomiting.  However recently, there has been concern that the use of Dilantin can result in Stevens Johnson Syndrome (SJS) and the more severe version of it, Toxic Epidermal Necrosis Syndrome (TENS).  This is due to an increase in reports of patients who have taken Dilantin being diagnoses with SJS.

SJS is a skin disease that is typically the result of an allergic reaction to an over the counter medication.  The cell death that SJS causes results in the epidermis separating from the dermis and it can be fatal in about 15% of the sufferers.  SJS symptoms begin with a fever, sore throat, and headaches like a cold or flu, but soon, the patient begins suffering from skin lesions and blisters.  Because patient’s skin becomes so blistery, they are often treated in burn units.  If the lesions adhere to the lungs, SJS can cause death.

The FDA issued an alert in November 2008 about the potential risk of SJS for Asian patients using phenytoin therapy that have tested positive for human leukocyte antigen (HLA) B*1502 allele.  The Stevens Johnson Foundation is concerned that the FDA is not monitoring the potential for adverse drug reactions closely enough because less than one percent of the deaths due to drug reactions are reported.  The doctors may not be reporting it to the FDA because it is not required, but also because they misdiagnosis the SJS and don’t realize it could be drug related.

Others are concerned that Dilantin use can result in liver damage, irregular heartbeats, decreased blood pressure, and birth defects.  A study done at the University of Florida in Gainesville shows that Dilantin use by the mother during pregnancy may result in a lower IQ in the infant.

Many that have taken Dilantin and suffered from SJS or any other adverse side effects have filed suit against Pfizer.  The family of Agnes Davis filed suit against ten different companies that are involved in the making, labeling, testing, marketing, and distribution of phenytoin sodium.  The lawsuit, which was filed in August 2008, claims that Davis had a severe reaction to phenytoin and it resulted in her death.

Fosamax is a bisphosphonate drug used to maintain and improve the amount of minerals and calcium in the bones. Fosamax is actually the Merck & Co. brand name of the generic drug alendronate. It was designed to help patients with osteoporosis, which reduces bone density. It can also be used to treat osteitis deformans, also known as Paget’s disease. Researchers believe that the drug can start having a positive effect within the first three months of use. It was approved for use by the Food and Drug Administration (FDA) in 1995.

While Fosamax can reverse the reduction in bone density in patients with bone disease, some think it can also have a severe side effect. It is believed that users of Fosamax can develop osteonecrosis of the jaw (ONJ), which is often referred to as “dead jaw.” This involves the very painful death of jawbone tissue. The symptoms of ONJ include pain in the jaw, a feeling of numbness, loosening of teeth, soft tissue infections, and the possible exposure of bone within the mouth.

Studies have shown that there is a link between taking Fosamax and ONJ. It is believed that women taking Fosamax for more than five years are at a higher risk. Some physicians were concerned about the use of Fosamax when the FDA approved it in 2005. This concern was due to the fact that the clinical trials that Merck performed on Fosamax were only for three to five years, which might not have shown true long term effects. When problems started arising, the FDA requested that the labels be changed to warn patients of potential ONJ risk in 2005. Merck & Co. added the warning, perhaps to not only warn patients, but also avoid potential lawsuits.

The May/June 2008 issue of Journal of Orthopaedic Trauma reported fractures occurring in thighbones for no apparent reason and found that 19 of the 20 patients who suffered these fractures had been taking Fosamax for about seven years. The Journal of Clinical Endocrinology & Metabolism reported the cases of nine women taking Fosamax who suffered spontaneous fractures in 2005. Many of the fractures took up to two years to completely heal. In 2006, the Journal of American Medical Association reported the FLEX trial, which showed that women who take Fosamax longer than five years are at the same risk for fractures as those who stopped taking the drug at five years.

A 60 year old woman from Florida filed suit against Merck & Co. After using Fosamax for six years to treat her osteoporosis, she developed a severe case of ONJ, which rotted her mouth and bared the bone in her jaw. It is believed that a total of 655 lawsuits accusing Merck & Co. of not warning patients of the potential hazards of Fosamax have been filed as of June 30, 2008.

Mount Airy Casino Resort in the Poconos is suing Nevada-based software firm Tech Results for fraud and breach of contract. The lawsuit, which was filed in Scranton last week, claims that Tech Results mislead the casino and sold faulty equipment.

Mount Airy purchase a casino information management system from Tech Results which was supposed to record patron’s personal information as well as their slot machine and gaming activities, including how much the patron won. Before it opened, Mount Airy also purchased a related system from the company that would create a database of patron information in May 2007. The system plus installation and maintenance came to a total of $416,000.

The lawsuit claims that Mount Airy officials were told by Tech Results representatives that the systems would work with each other. One of the key aspects of the systems working together was that Tech Result’s kiosks (purchase at a cost of $80,000) would record the play of “Swipe and Win” and “Virtual Scratch-Off” games. The wins were supposed to go in the system and credit the player’s card. When the patron played a slot machine the next time, the credits redeemed at the kiosk would appear on his or her card.

Mount Airy says the systems did not work and patrons never got credited for their wins. The lawsuit claims the kiosks could not be used and that Mount Airy lost approximately $5 million because of the faulty equipment.

If you have purchased a lawnmower from Sears in the last fourteen years, you may be interested in some recent lawsuits filed against the company. A class action suit was filed in Scranton, Pennsylvania on October 16th against Sears and other manufacturers including Toro, Honda, Deere & Company, Kohler Co., and Electrolux Home Products, Inc for fraud. The lawsuit claims that the lawnmowers were sold with labels stating that the engines produced a high horsepower than they actually did. This includes labels listing the gross horsepower of the mower, which is theoretically the maximum horsepower, but not as accurate as the net horsepower. Other lawsuits have been filed in New Jersey, Illinois, and Texas with the same claims.

The defendants of the lawsuits were all members of the “Power Labeling Task Force” in 2001. That group met to discuss how to misrepresent horsepower to consumers as well as conceal horsepower fraud. The group suggested putting a disclaimer on the Outdoor Power Equipment Institute (OPEI) web page titled “Understanding Horsepower” which would mislead consumers as to horsepower issues. The group then created the labeling standard “SAE J1940” to conceal the fact that the horsepower listed on the lawnmower was less than consumers would probably get from the product. The SAE J1940 label allowed manufacturers to up the horsepower as much as 15% more than could be produced.

The class action lawsuit also claims the group decided to use standard “SAR J1995,” which allowed manufacturers to list gross horsepower on labels. The gross horsepower of the lawnmower is less than the net horsepower unless used under specific laboratory conditions, but because it seems like a more powerful number, it was believed that it could be used to deceive the consumers.

Some of the lawnmowers involved in the lawsuit were sold under the names of Craftsman, Cub Cadet, Troy Bilt, Yard-Man, Yard Machines, Bolens, White Outdoor, Lawn-Boy, Exmark, Poulan, Poulan PRO, Weed Eater and Husqvarna. If you purchased one of these brands of lawnmowers from Sears since 1994, you may want to contact a lawyer to see if your mower may be involved in the lawsuit.

Sprint-Nextel Corp. is facing a federal class-action lawsuit which was filed against them by subscribers. In the lawsuit, the plaintiffs are seeking reimbursement for early termination fees (ETFs). This lawsuit comes on the heels of another ETF lawsuit case that was held in July. The judge for that lawsuit determined that Sprint-Nextel had indiscriminately charged fees in an attempt to prevent dissatisfied customers from dropping their services, which was a violation of California state law. The judge ordered Sprint-Nextel to pay $73 million in compensation to approximately 1.9 million customers.

Now, the plaintiffs of this class-action lawsuit hope to find Sprint-Nextel, the third largest provider of wireless services, in violation of federal law as well as statutory law for all 50 states. The new lawsuit claims that Sprint-Nextel has been charging inappropriate fees of between $150 and $200 since 1999 and that these fees are in violation of the Federal Communications Act in every state, not just California. The lawsuit seeks $1.2 billion in reimbursement.

Attorney Scott Bursor, who is now promoting the federal class-action suit after working on the California suit, says he intends to prove the fees violate federal law. Bursor was also involved in a class-action suit in July against Verizon Wireless in which they were ordered to pay $21 million in reimbursement for ETFs.

Matthew Sullivan, a spokesman for Sprint-Nextel, said that the federal class-action suit is “cynical and opportunistic.” The jury in the original case ruled in the favor of Sprint-Nextel, however, the judge’s ruling was against the company. Therefore, the ruling in the California case is preliminary and not final. Judge Bonnie Sabraw of the Alameda County, California Superior Court will finalize the decision within 90 days of the hearing.

In October, Sprint-Nextel issued a revised ETF policy. The $200 fee will be decreased by $10 each month starting in the seventh month of the customer’s contract. By the 15th month of the contract, the ETF will be $100, which is the lowest pro-rated fee in the cell phone industry. The new ETF policy applies to both new and existing customers.

The NuvaRing is a contraceptive vaginal ring that can be prescribed by a doctor. To prevent contraception, the ring releases a dose of progestin and estrogen over a period of three weeks. After three weeks is over, the ring is removed and the woman has a normal menstrual period.

NuvaRing is manufactured by Organon and was first used in The Netherlands in February 2001. It was approved by the Food and Drug Administration (FDA) for use by consumers in the United States on October 2, 2001 and hit the market the next summer. NuvaRing is currently used by about 1.5 million women throughout the world.

The known side effects of NuvaRing are vaginitis, headache, upper respiratory tract infection, leucorrhea, sinusitis, nausea, and weight gain. It is believed that chances of cardiovascular problems such as stroke or heart attack are higher in women who smoke, have had recent surgery, a history of cardiovascular disease, or are of an older age.
Rarer side effects from use of NuvaRing may include difficulty breathing, chest pain, coughing up blood, severe headaches, severe abdominal pains, lumps in the breast, constant fatigue, vomiting, rashes, and depression.

Other than the expected side effects, it is believed that NuvaRing causes an increased risk of blood clots because it contains etonogesterel. Some studies have shown that third generation contraceptives such as NuvaRing that contain etonogesterel (an active metabolite of the progestin desogestrel) can increase the risk of blood clots by as much as 1.5 to 2.4 times that of second generation oral contraceptives. These blood clots can cause tissue and organ damage, leading to amputation or even death. In addition to blood clots, it is believed that NuvaRing may cause stoke or myocardial infarction (heart attack) in patients using it.

Last year, Public Citizen, a consumer advocacy group, requested that the FDA ban oral contraceptives that release desogestral due to the link to strokes and blood clots. While the packaging says a low dose of etonogestral is released, some believe that the dose, administered per day, is actually high.

This past March, a lawsuit was filed against Organon as well as the distributors and marketers of NuvaRing. The suit was filed by Robert Bozicev in Essex County, New Jersey. He is the late husband of Kelly Bozicev, whom he claims was killed due to the use of NuvaRing. In December 2007, she had a seizure and died while being transported to the hospital. Doctors determined that she died due to a massive pulmonary thromboemboli. The lawsuit states that the Organon USA, Inc., Organon Pharmaceuticals USA, Inc., Organon International, Inc., Akzo Nobel NV, Organon Biosciences, N.V., and Schering-Plough Corporation knew about the increased risk of blood clots, but failed to disclose it to consumers.

Since then, more than 50 other lawsuits against the manufacturers of NuvaRing have been filed. If you are using NuvaRing, you may want to consult your physician about the risks.

Lexapro is one of the brand names for the drug escitalopram. It is used to treat both depression and anxiety. It was developed by Lundbeck and Forest Laboratories in 1997 and approved by the Food and Drug Administration (FDA) in spring 2001. Some of the known side effects of lexapro are nausea, constipation, drowsiness, impotence in males, fatigue, indigestion, runny nose, and sinusitis.

Thoughts of suicide may also be an adverse side effect of taking lexapro. After the FDA did an evaluation of 372 studies that involved over 100,000 patients (all of whom were taking at least one of eleven different antidepressants including lexapro), it found that there was an elevated risk of suicidal thoughts in patients between the ages of 18 and 25.

However, it may not just be those between 18 and 25 that are at risk. In March 2007, a widow of a 50 year old man filed a lawsuit against Forest Laboratories among others, saying that her husband committed suicide due to lexapro use. The multi-million dollar suit said that antidepressants were prescribed after a car crash and the victim got progressively worse until he jumped off a bridge in February 2005. Mark and Lucy Bibbee also filed a lawsuit against Forest Laboratories. They believe that taking lexapro caused both their sons to commit suicide within a 17 month of each other. By the end of 2006, there were believed to be at least 25 lawsuits filed against Forest Laboratories by the loved ones of patients who committed suicide while taking antidepressants such as lexapro.

A new study conducted by Duke University shows that antidepressants such as lexapro may also increase the chances of death in patients who suffer from heart disease. The study found that 21.4% of heart disease patients who were taking antidepressants died within a three year time frame of the follow-up as opposed to 12.5% of those that were not taking antidepressants. After making certain adjustments for demographics and cardiac risk factors, this still was an increased risk factor of 62%.

In addition, patients who take lexapro during pregnancy may be at risk for birth defects. The FDA warned doctors to advise patients taking lexapro during pregnancy that their baby may be at increased risk for congenial heart defects such as atrial septal defects and ventricular septal defects.

A study appeared in the New England Journal of Medicine that showed that taking antidepressants such as lexapro could increase the chance of a patient’s baby being born with persistent pulmonary hypertension in newborns (PPHN). After this study was published in the journal, the FDA released a Public Health Advisory with the warning about PPHN. PPHN can cause heart failure, brain hemorrhage, seizures, and organ damage in newborns. Between 10 and 20% of newborns that suffer from PPHN die.

In addition to heart defects, it is believed that lexapro can also cause omphalocele, an abdominal wall defect, and craniosynostosis, which causes sutures on the head to close earlier than expected, resulting in an abnormally shaped head.

A class action lawsuit has been filed in the US District Court for the District of Kansas against Appleebee’s restaurants, its parent company DineEquity, Inc. and Weight Watchers International, Inc. claiming that their dishes featured in their Weight Watchers menu were misleading to customers. The lawsuit alleges claims under the federal RICO (Racketeer Influenced and Corrupt Organizations) Act and Kansas consumer protection laws.

The complaint filed stated that Applebee’s mislabeled the fat, calorie and fiber content of each dish thus causing the patron to consume more calories than advertised. In one example cited (the Cajun Lime Tilapia) the actual fat and calorie content was significantly higher than what was listed in the menu (14.3 grams of fat and 401 calories in reality versus the 6 grams of fat and 310 calories listed on the menu). The testing of this dish was completed by Analytical Labs of Boise, ID. The complaint also alleges that Weight Watchers betrayed its supporters by developing, advertising and approving a menu that is inconsistent with the Weight Watchers diet.

The lawsuit was filed on behalf of all US citizens who purchased items during the past four years from the Weight Watchers menu at Applebee’s restaurants. The lead plaintiff in the case is Antonio Fidelis Valiente of Bethesda, MD. In the complaint it is asserted that Mr. Valiente was a frequent patron of Applebee’s Restaurants in the Miami, Boston, Nashville, and Washington areas and dined there at least 25 times since the Weight Watchers menu was created. Mr. Valiente stated that had he known the actual nutritional makeup of the dishes he would not have eaten at the restaurants.

The lawsuit seeks class-wide damages and injunctive relief. The suit also asks that Weight Watchers and Applebee’s be required to surrender to the plaintiffs any profits were made from the sale of the menu items.

Applebee’s was founded in 1983 and is headquartered in Overland Park, KS. Weight Watchers International, Inc. was founded in 1963 and has tens of thousands of employees worldwide.