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Information About Zostavax Shingles Vaccine Problems to be Exchanged in Discovery Phase

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The U.S. District Judge presiding over all federal Zostavax lawsuits has approved a plan to begin the discovery process, outlining the process for exchanging information about problems each plaintiff experienced after the shingles vaccine was administered.

Merck & Co. faces a growing number of product liability claims brought by individuals nationwide, each involving similar allegations that side effects of the Zostavax vaccine caused individuals to develop more severe and persistent shingles outbreaks and other problems caused by the use of an “under-attenuated” live virus contained in the vaccine.

Given common questions of fact and law raised in lawsuits filed in U.S. District Courts nationwide, over whether the drug maker failed to sufficiently weaken the live virus in the vaccine or warn about potential shingles vaccine problems, consolidated pretrial proceedings have been established before U.S. District Judge Harvey Bartle III in the Eastern District of Pennsylvania.

At the time the MDL was established in August, there were about 100 cases pending nationwide. However, as lawyers continue to review cases for individuals who suffered shingles complications, it is widely expected that several thousand cases may be filed nationwide.

In a pretrial order (PDF) issued last week, the Court detailed the discovery plan, which will allow both sides to gather information and relevant records concerning claims in the litigation. The order also requires the parties to meet and confer over a standardized Plaintiff Fact Sheets and Defendant Fact Sheets, as well as plans for further bellwether trials.

As part of the coordinated pretrial proceedings, it is expected that Judge Bartle will establish a process where a small group of Zostavax cases are prepared for early trial dates, which would help the parties gauge how juries may respond to certain evidence and testimony that is likely to be repeated throughout the litigation.

The order issued last week called on plaintiffs and defendants to submit either a joint or competing plans for the selection of an initial group of claims that will be part of the bellwether process. It is expected that proposals will be discussed during the next status conference before Judge Bartle, which is scheduled for January 10, 2019.

While the outcome of any early bellwether trials will not be binding on other claims in the litigation, if the parties fail to negotiate shingles vaccine settlements for individuals who have have experienced problems, or otherwise resolve the litigation after the bellwether process is complete, each case may ultimately be remanded back to the U.S. District Court where it was originally filed for a separate trial date in the future.

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