The first fixodent lawsuit in the federal denture cream litigation has been scheduled to go to trial next summer, involving a claim that zinc contained in the popular denture adhesive caused the plaintiff to suffer debilitating neuological injuries.
U.S. District Court Judge Cecilia M. Altonaga issued an order earlier this month scheduling a bellwether Fixodent trial to begin on June 6, 2011. The Fixodent suit was brought by Marianne and Daniel Chapman, of Florida, who claim that Proctor and Gamble failed to warn consumers that their denture adhesive contained zinc, which can enter the body at high levels when the denture cream is used, leading to permanent injuries from zinc poisoning.
The Chapmans’ lawsuit is among a growing number of cases that have been consolidated and centralized in federal court as part of a denture cream multidistrict litigation (MDL). At least 38 denture cream lawsuits have been consolidated for pretrial proceedings in the U.S. District Court for the Southern District of Florida.
The litigation consists of lawsuits over Fixodent, as well as Super Poligrip lawsuits filed over GlaxoSmithKline’s competing denture adhesive, which also contains zinc. The complaints involve similar allegations that the manufacturers failed to disclose that the denture creams contain zinc, which can lead to neurological problems like neuropathy, numbness, tingling, pain, weakness, loss of sensation, loss of balance, paralysis and difficulty breathing.
GlaxoSmithKline reported earlier this month that in the vast majority of cases filed against them, they have reached Super Poligrip settlement agreements. No such settlements have been reported in Fixodent cases, and Proctor & Gamble has previously indicated an intention to defend the cases.
The Chapmans’ Fixodent lawsuit is being considered a bellwether trial, meaning that denture cream lawyers for the plaintiffs and Proctor & Gamble’s Fixodent lawyers are going to use the trial to gauge how the jury responds to expert testimony, evidence and arguments that are likely to be repeated in other cases. The decision from that trial may help lead to a Fixodent settlement or other resolution for the remaining litigation.
In the case, Marianne Chapman alleges that she suffered severe, permanent and disabling injuries, as well as disfigurement, pain and suffering, disability, mental anguish and the loss of capacity for enjoying life, medical costs, and lost earnings due to the side effects of Fixodent. The lawsuit charges P&G with strict liability, negligence, intentional misrepresentation, breach of express warranty, breach of implied warranty, violation of Florida’s Deceptive and Unfair Trade Practices Act and loss of consortium on behalf of Daniel Chapman.
In a Pre-Trial Scheduling Order issued August 5, Judge Altonaga ordered the parties to complete mediation by March 28, 2011 in an attempt to settle the Fixodent case.