Lawsuits Over Zostavax Vaccine Centralized as Part of Federal MDL

With a growing number of Zostavax vaccine lawsuits being pursued throughout the federal court system, each involving similar allegations that side effects caused a persistent strain of shingles, the U.S. Judicial Panel on Multidistrict Litigation (JPML) has decided to consolidate and centralize the litigation before one judge for coordinated pretrial proceedings.

There are currently at least 98 different product liability lawsuits pending against Merck in nine different U.S. District Courts, each raising similar questions of fact and law, about whether the drug maker failed to adequately warn consumers and the medical community about the risks associated with the Zostavax shingles vaccine.

Zostavax was introduced by Merck in May 2006, for the prevention of shingles among individuals ages 60 or older. However, plaintiffs allege that Merck used an under attenuated live strain of the varicella zoster virus (VZV) in the vaccine, which was not weak enough to prevent reactivation of the virus.

As a result, plaintiffs claim that side effects of Zostavax caused them to develop longer and more painful shingles outbreaks, after the live virus combined with the old virus, instead of promoting the development of the proper immune response.

As lawsuits over Zostavax continued to be filed in various different federal court systems, resulting in varying discovery deadlines and the need for duplicative motions, Merck filed a motion to transfer all Zostavax cases in April, asking that the cases be combined as part of a federal multidistrict litigation (MDL) in the Middle District of Florida, for coordinated discovery and pretrial litigation.

While plaintiffs in about half of the cases supported the motion, they disagreed about the most appropriate transfer venue. However, other plaintiffs opposed the motion, arguing that formal coordination was not necessary.

Following a hearing last month, the U.S. JPML found that establishing a Zostavax MDL was appropriate, rejecting the notion that voluntary coordination would be sufficient, indicating that there were too many actions, judges and counsel involved in the cases.

“All actions involve common factual questions arising out of allegations that Zostavax, a live vaccine for the prevention of shingles, caused plaintiffs to develop shingles or other injuries triggered by exposure to the live, attenuated varicella zoster virus contained in the vaccine, and that defendants did not provide sufficient warning of the risks to healthcare providers or consumers,” according to a transfer order (PDF) issued on August 2. “Issues concerning the design, testing, manufacture, regulatory approval, labeling, and marketing of Zostavax are common to all actions. Centralization will eliminate duplicative discovery; prevent inconsistent pretrial rulings on Daubert issues and other pretrial matters; and conserve the resources of the parties, their counsel and the judiciary.”

The panel pointed out in the order that the parties unanimously agree that there is a strong likelihood of additional lawsuits being filed as Zostavax lawyers continue to review additional cases for individuals nationwide who have experienced complications from the shingles vaccine.

Each of the cases are currently in the early stages of litigation, according to the order, and the panel determined that the cases will realize significant benefits from centralization at this time.

Following arguments presented by multiple parties involved in the litigation, the U.S. JPML decided to establish a Zostavax MDL in the U.S. District Court for the Eastern District of Pennsylvania, where the lawsuits will be centralized before Judge Harvey Bartle III.