Zostavas Vaccine Cases Selected For Bellwether Discovery in Preparation for Trial

A group of 16 Zostavax vaccine cases have been selected for a bellwether discovery pool, which will be prepared for early trial dates to help the parties gauge how juries may respond to evidence that will be repeated throughout hundreds of cases involving individuals who suffered painful and debilitating injuries after being injected with the live virus shingles vaccine.

There are currently about 600 product liability lawsuit pending against Merck, over failure to warn consumers and the medical community about the potential side effects of the Zostavax vaccine. However, as lawyers continue to review and file cases in the coming months and years, it is widely expected that several thousand complaints will ultimately be filed.

Each of the lawsuits raise similar allegations, indicating that the live virus used in Zostavax was not sufficiently weakened, causing the reactivation of a dormant virus in some individuals receiving the vaccine. As a result, plaintiffs claim they have suffered more severe and 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.

To help the parties gauge the relative strengths and weaknesses of their arguments, the federal judge presiding over the litigation has established a “bellwether” process, where a small group of representative claims will be set for early trial dates starting in late 2020.

In a joint submission (PDF) submitted on May 31, Merck & Co. and a Plaintiffs’ Executive Committee (PEC) each identified 8 bellwether cases, which will go through case-specific discovery and be prepared for the first first trial dates.

While the outcome of these Zostavax bellwether cases will not be binding on other plaintiffs, they will be closely watched by lawyers involved in the litigation and may greatly influence any eventual settlement negotiations to avoid the need for large numbers of cases to be set for trial in U.S. District Courts nationwide.

Given similar questions of fact and law raised in the Zostavax litigation, all federal cases are currently centralized before U.S. District Judge Harvey Bartle III in the Eastern District of Pennsylvania, to reduce duplicative discovery into common issues, avoid conflicting pretrial schedules and serve the convenience of the parties, witnesses and courts.

However, following a series of bellwether trials expected to start in November 2020, if the parties fail to settle or resolve the litigation, each individual case may be remanded back to the U.S. District Court where it was originally filed for a future trial date.

The next status conference before Judge Bartle is scheduled for July 9, according to a notice to counsel (PDF) issued this week.