Zostavax Shingles Vaccine Injury Claims Set For Trials To Begin in November 2020

The U.S. District Judge presiding over all federal Zostavax shingles vaccine lawsuits has established a “bellwether” program, where groups of cases involving different injuries will be prepared for a series of five trial dates set to begin between November 2020 and July 2021.

Merck & Co. currently faces more than 384 product liability claims, each involving similar allegations that side effects of the Zostavax caused individuals to develop more severe and persistent shingles outbreaks, as well as other auto-immune disorders associated with the use of an “under-attenuated” live virus contained in the vaccine.

Given common questions of fact and law raised in complaints filed nationwide, the litigation has been centralized before U.S. District Judge Harvey Bartle III in the Eastern District of Pennsylvania, for coordinated discovery and pretrial proceedings as part of a federal MDL, or multi-district litigation.

As part of the coordinated management for the vaccine injury claims, Judge Bartle has decided that two separate groups of claims will be selected, which will go through discovery and be prepared for early trial dates to help gauge how juries may respond to certain evidence and testimony that is likely to be repeated throughout the litigation.

In a pretrial order (PDF) issued on Wednesday, Judge Bartle laid out the guidelines and procedures for selecting these cases, as well as the discovery schedule leading up to the start of the first bellwether trials late next year. The bellwether cases will be split into two groups: one involving cases for individuals who developed a form of shingles following vaccination and another for other vaccine injury claims linked to the live virus contained in the injection.

The shingles category, designated Group A, involves any condition which developed after receiving the vaccine which can be linked directly to the herpes zoster virus, such as shingles, Ramsay Hunt syndrome, herpes zoster encephalitis, herpes zoster meningitis, and others. All plaintiffs in that category must have received a diagnosis of herpes zoster or zoster sin herpete in their medical records.

The other category, designated Group B, involves conditions that are allegedly linked to the use of the Zostavax vaccine, but do not involve the herpes zoster virus directly. These have included conditions such as Guillain-Barre Syndrome, Bell’s Palsy and other forms of facial paralysis, hemorrhagic stroke, aseptic meningitis, transverse myelitis and acute disseminated encephalomyelitis.

The order calls for the selection of eight Group A cases from both plaintiffs and defendants, for a total of 16, by May 31. Once core fact discovery is completed, the parties will each pick three cases from that pool, for a total of six, to move forward as Group A Bellwether Trial Pool Cases by November 29, 2019.

The first Group A bellwether trial is scheduled for November 9, 2020, with a second trial slated to begin on January 11, 2021, and a third on March 15, 2021.

For the Group B trials, both sides must select four cases each by December 3, 2019, for a total of eight pool cases. Core fact discovery on those cases is to be complete by May 15, 2020, and by May 29, both sides will select two of those cases each, for a total of four Group B bellwether trial pool cases.

By March 31, 2021, two of those cases will be selected to go to trial. The first Group B trial will begin on May 31, 2021, and the second is scheduled for July 12, 2021.

While the outcome of these Zostavax bellwether trials will not be binding on other plaintiffs, they will be closely watched by lawyers involved in the litigation and may greatly influence any eventual Zostavax settlement negotiations.

Zostavax Litigation

Each of the complaints present similar claims that Merck knew or should have known that the shingles vaccine was unreasonably dangerous, with the active virus not sufficiently weakened to avoid reactivation of the zoster virus that is dormant in some users.

Zostavax was introduced in May 2006, as the first approved vaccine for prevention of shingles among older adults. It is a single-dose injection, which includes a stronger version of the chickenpox vaccine Varivax. However, it has been linked to reports of persistent shingles outbreaks, as well as auto-immune disorders like meningitis, paralysis, traverse myelitis, acute disseminated encephalomyelitis (ADEM), chronic inflammatory demyelinating polyneuropathy (CIPD) and other painful conditions.

As vaccine lawyers continue to investigate and file additional claims on behalf of people who have experienced problems from Zostavax, the size of the litigation is expected to continue to grow over the coming months and years.

While all cases filed throughout the federal court system are currently centralized before Judge Bartle, if Merck fails to reach settlements or another resolution for the claims following bellwether trials, each individual lawsuit may eventually be remanded back to different U.S. District courts nationwide for separate trial dates in the future.