Direct Filing of Zostavax Shingles Vaccine Cases Permitted in Federal MDL

The U.S. District Judge presiding over all federal Zostavax shingles lawsuits has approved new procedures that allow the direct filing of new cases into the recently established multidistrict litigation (MDL) in the Eastern District of Pennsylvania, where litigation has been centralized for pretrial proceedings. 

Merck & Co. faces a growing number of product liability lawsuits brought by individuals nationwide, each raising similar allegations that side effects of Zostavax actually caused the development of recurring shingles infection outbreaks, due to an “under-attenuated” live virus contained in the vaccine.

Given similar 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 consumers and the medical community about the risks associated with the shingles vaccine, consolidated pretrial proceedings have been established before U.S. District Judge Harvey Bartle III in the Eastern District of Pennsylvania.

Known as a federal MDL, or multidistrict litigation, the centralization is designed to reduce duplicative discovery into common issues in the cases, avoid conflicting pretrial rulings from different courts and serve the convenience of common witnesses, parties and the judicial system.

To avoid the delay associated with transferring cases from different federal district courts, Judge Bartle issued a case management order (PDF) last week, outlining the process for the direct filing of future cases directly into the Zostavax MDL.

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

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

However, following the coordinated MDL proceedings, if shingles vaccine settlements or another resolution for the litigation is not reached, each case may ultimately be remanded back to the U.S. District Court where it was originally filed for an individual trial date in the future.

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