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.
You never know how mass tort cases are going to go. But I do think the Zostavax cases might be ripe for settlement long before these cases ever go to trial.
Zostavax is a vaccine that was administered to protect from herpes zoster, more commonly known as the shingles virus. Like all vaccines, Zostavax was essentially a weakened form of the live shingles virus. It consisted of a single shot that was supposed to expose the patient to a small diluted dose of the virus so that their body could develop 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 60’s. 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 is 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 are alleging that instead of protecting them from the shingles vaccine, Zostavax actually caused them to develop a more severe, more painful and less treatable form of shingles and other auto-immune disorders. 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 2018 there were thousands of suits pending across the country.
In August 2018, the U.S. Judicial Panel on Multidistrict 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. 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.
The Zostavax Bellwether Cases?
The big news in this update is that Judge Bartle 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 be used to help both sides gauge the potential value of the Zostavax cases for settlement purposes.
The first bellwether group, known as Group A, consists of 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, consists of 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 the Group A and B cases will go to trial. By May 31, 2019, a total of 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.
With respect to 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.
- We speculate about something that is difficult to predict — the settlement value of Zostavax cases
New Jersey Superior Court Case
In addition to 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 will likely be consolidated into a state-level MDL somewhere in New Jersey.
We will continue to update those 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 is 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.