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Zostavax Lawsuit April 2020 Update: Federal Court Trials on Tap

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Our Zostavax Trials Set for 2020

Our lawyers are handling Zostavax shingles vaccine lawsuits.   If you have a potential suit and have not yet hired a lawyer, call me.

Zostavax lawsuits are now moving forward quickly. U.S. District Judge Harvey Bartle of the Eastern District of Pennsylvania has selected the initial “bellwether” cases in the Zostavax MDL. The bellwether Zostavax cases will be grouped into two categories and prepared for five proposed trial dates that will take place between fall 2020 and summer 2021.  Does that sound far away?  I get it.  But this is not far away in class action-type lawsuits where the ball moves slowly. 

You never know how mass tort cases will go.  But I think the Zostavax cases might be ripe for settlement long before these cases ever go to trial.

About Zostavax

Zostavax is a vaccine that was administered to protect from the varicella herpes zoster (VZV), more commonly known as the shingles virus.  In May  2006, the U.S. Food and Drug Administration (“FDA”) approved the Zostavax vaccine for its manufacturer (Merck).

Shingles is a serious thing.  It can cause postherpetic neuralgia which damages nerve fibers and skin.  The result is burning pain that stays with the patient lasts long after the visible signs of shingles disappear. The chickenpox (herpes zoster) virus causes shingles.  It leads to other serious complications including pneumonia, infection, scarring,  allodynia, cranial and motor neuron palsies, encephalitis, brain damage, visual loss, hearing loss, and, in rare cases, death. So it is a big thing.

VZV causes shingles and can also cause chickenpox. If the herpes zoster leads to chickenpox, the virus can lie dormant in your body for years. Why does it awake VZV?  It is hard to know in individual patients. But we know aging and stress can cause reactivation.

Like all vaccines, Zostavax was essentially a weakened form of the live shingles virus.  The shingles vaccine comprises a single shot that exposes the patient to a small diluted dose of the virus. The hope is the body develops immunity without getting sick. Zostavax was developed and produced by the New Jersey pharmaceutical company Merck & Co, one of the world’s largest vaccine manufacturers.

Merck’s shingles vaccine was recommended for individuals 50 years or older, but it was most effective for individuals in their 60s because this is the age group most at risk because their immune system is not as strong (just like the coronavirus).  Zostavax may provide some protection from shingles for individuals over 70 years of age. The CDC notes that those injected with Zostavax were 51% less likely to develop shingles. The vaccine was meant to last about five years.

Zostavax Shingles Lawsuits against Merck

Zostavax’s manufacturer Merck & Co. is now involved in hundreds of product liability claims involving the popular shingles vaccine. Plaintiffs in the Zostavax lawsuits allege that instead of protecting them from the shingles vaccine, Zostavax caused them to develop a more severe, more painful and less treatable form of shingles and other auto-immune disorders.  The rash from shingles can cause persistent nerve pain (called post-herpetic neuralgia).  This condition harms nerve fibers and skin.  This is what I was talking about above.   The condition causes nerve pain after the shingles disappear.

It now seems that Merck may have known that a certain percentage of users would have this reaction to the vaccine but failed to warn about it. The first Zostavax lawsuits started getting filed in 2016 and by October 2019 there were thousands of suits pending across the country.

So lawyers like me jumped on these lawsuits.  In August 2018, the U.S. Judicial Panel on Multi-district Litigation accepted Merck’s motion to consolidate the Zostvax cases pending in Federal Courts. The Zostavax MDL was created and assigned to Judge Bartle in the Eastern District of Pennsylvania in Philadelphia. The consolidation of mass pharmaceutical cases in MDLs has become a very common method of case management in the Federal Court system. These cases each allege that Zostavax led to unintended side effects such as shingles, the virus that the vaccine was meant to protect from. The cases also allege that Merck acted negligently by failing to warn health care providers or patients of these risks.

There is also an MCL class action in state court in New Jersey.  This multi-county litigation (MCL) has been centralized in Middlesex County.  How did 1,000 cases get filed in state court?   One of the defendants, Merck, is incorporated in New Jersey, as is one of their subsidiaries who is also a defendant in this litigation. 

The Zostavax Bellwether Cases?

Zostavax timeline infographic

Click to enlarge

The big news in this update is that Judge Bartle in the MDL class action lawsuit has previously divided the Zostavax-related claims into 2 separate groups for purposes discovery. He has also begun the process of selecting a handful of representative Zostavax cases for trial. These so-called bellwether cases will be tried over the next year or 2 and the results will help both sides better gauge the potential value of the Zostavax cases for settlement purposes.

The first bellwether group, known as Group A, comprises cases involving individuals developing shingles after vaccination. This also includes other herpes zoster-related conditions such as Ramsay Hunt Syndrome and herpes zoster encephalitis. The second bellwether group, known as Group B, comprises cases where plaintiffs developed non-shingles related injuries connected to the live virus in Zostavax. These include conditions that do not necessarily involve the shingles virus such as Bell’s palsy, Guillain-Barre Syndrome, hemorrhagic stroke, and aseptic meningitis.

The Judge’s order also announced how Group A and B cases will go to trial. By May 31, 2019, sixteen cases from Group A will be selected from both plaintiffs and defendants.  The cases shall undergo core fact discovery. Once that is complete, six cases shall be selected from the plaintiffs and the defendants. These cases will be part of a Group A Bellwether Trial by November 29, 2019. The first Group A bellwether trial is scheduled to begin around November 2020. The second trial is scheduled to begin around January 2021, while the third trial is scheduled for March 2021.

Regarding Group B trials, both plaintiffs and defendants are required to select four cases each by December 2019. Core fact discovery would be conducted on these cases, which is supposed to be completed by May 15, 2020. By May 29 of that year, both sides need to select two cases each, which would be part of the Group B bellwether trial pool. By March 2021, the court shall select two cases that will go to trial. The first trial involving Group B cases is to begin around May 2021, while the second is to begin around July 2021.  Will the coronavirus slow this timetable?  Probably.  But I don’t think it will be by much.

There are about 1300 cases in the MDL as of April 2020.

March 2020 Motion to Dismiss

Judge Battle ruled on Merck’s motion to dismiss many plaintiffs in March 2020.  The way it works in these cases is the plaintiffs are required to file out fact sheets providing information about themselves and the substance of their claims.  There are always plaintiffs in any mass tort that don’t fill out these sheets or don’t answer the questions to the defendant’s satisfaction.   The judge dismissed a few of the cases where it was clear the plaintiffs were unwilling to take part in the litigation.  But the hearing was mostly a loss for Merck, who had sought to dismiss 86 claims.

New Jersey Superior Court Case

Besides the MDL in federal courts, dozens of Zostavax lawsuits have been filed against Merck in its home state of New Jersey. These state cases involve the same allegations that the vaccine resulted in the development of more severe shingles. These New Jersey cases have been consolidated, as we talk about above, in a state-level MDL (called an MCL)) somewhere in Middlesex County, New Jersey.

We will continue to update both the state court claims and the Zostavax claims in the MDL.

Contact Miller & Zois About Zostavax Lawsuits

If you were harmed by the Zostavax vaccine, it may not too late to file your own lawsuit against Merck. Miller & Zois is currently looking for new Zostavax cases to include in the MDL. Contact us today at 800-552-8082 or get a free online consultation.

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