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Bellwether Trials for Zostavax Shingles Vaccine Lawsuits Set To Begin in November 2021

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The U.S. District Judge presiding over all shingles vaccine injury lawsuits filed against the makers of Zostavax has rescheduled the first in a series of three bellwether trials to begin in November 2021, with additional cases set to go before juries in January and March 2022.

Merck & Co. currently faces more than 1,300 product liability lawsuits filed throughout the federal court system, each raising similar allegations that the drug maker failed to adequately warn about side effects of the Zostavax vaccine, which has been linked to repoorts of severe and persistent shingles outbreaks, as well as other auto-immune disorders, such as meningitis, acute disseminated encephalopmyelitis (ADEM), paralysis and other health problems.

Zostavax was introduced in 2006, as the first vaccine for prevention of shingles. The treatment involves a single-dose injection, which contains a live virus designed to vaccinate older adults against the development of the disease. However, plaintiffs allege the live virus contained in the vaccine was not sufficiently weakened, resulting in severe complications and injury.

Given similar questions of fact and law raised in complaints filed nationwide, all federal claims are centralized before U.S. District Judge Harry Bartle in the U.S. District Court for the Eastern District of Pennsylvania, as part of a federal multidistrict litigation (MDL).

As part of the coordinated proceedings, Judge Bartle has established a “bellwether” program, where a small group of representative claims are being prepared for early trial dates in the MDL, which are designed to help gauge how juries may respond to certain evidence and testimony that is likely to be repeated throughout the litigation.

Originally, the first Zostavax trials were scheduled to begin this November 2020. However, in February, Judge Bartle issued a pretrial order canceling all scheduled deadlines set for the bellwether cases.

In a pretrial order (PDF) issued this week, the hudge indicates that a series of three trials will be held on November 8, 2021, January 19, 2022 and March 28, 2022, involving cases that representative of other claims brought by individuals nationwide.

The parties previously selected 16 cases that have been going through a Bellwether Discovery process, to explore case-specific information about each case. Following core fact discovery, the parties selected six cases from that group, from which three will be selected for a Group A Bellwether Trial Pool. For the scheduled trial dates, one case will be selected by the Plaintiffs’ Executive Committee, another selected by Defendants’ Liaison Counsel, and the third will be be selected by the Court by September 17, 2021.

While the outcome of the bellwether trials will not be binding on other plaintiffs, they may greatly influence any eventual shingles vaccine settlements that the manufacturer may offer to individuals who experienced problems with Zostavax, which may be necessary to avoid the eventual need for hundreds of individual trial dates to be scheduled in U.S. District Courts nationwide in the coming years.

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