Judge Calls For Plans For Zostavax Vaccine Lawsuit Bellwether Trials And Case Selections

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With hundreds of Zostavax shingles vaccine lawsuits moving forward in the federal court system, the U.S. District judge presiding over the litigation is calling on the parties to submit a plan for the selection of a small group of “bellwether” test cases by the end of this month, which will be prepared for early trial dates.

Merck & Co. currently faces more than 384 product liability claims, centralized as part of a federal multidistrict litigation (MDL), since they each raise similar allegations that side effects of the Zostavax vaccine caused individuals to develop more severe and persistent shingles outbreaks, as well as other health problems associated with the use of an “under-attenuated” live virus in the vaccine.

Given common questions of fact and law raised in complaints filed nationwide, the Zostavax 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 the management for the litigation, Judge Bartle has indicated that a process will be established to prepare a small group of cases for early trial dates, which are designed to help the parties gauge the relative strengths and weaknesses of their arguments, as well as how juries may respond to certain evidence and testimony that is likely to be repeated throughout the claims.

In a pretrial order (PDF) issued late last week, Judge Bartle called for parties to file any motions regarding the selection and trial of bellwether cases before the next status conference on January 29.

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.

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.

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