Second Group of Zostavax Injury Lawsuits Selected For Bellwether Trials in 2021

While a small group of Zostavax lawsuits are being prepared for a series of bellwether trials set to begin next year, parties involved in the litigation have selected a group of 16 cases involving different injuries allegedly caused by the shingles vaccine that will be prepared for a second round of trial dates in 2021.

Merck & Co. currently faces nearly 1,000 product liability complaints in the federal court system, alleging that side effects of the shingles vaccine Zostavax caused plaintiffs to suffer more severe and persistent outbreaks, as well as various auto-immune disorders, such as meningitis, acute disseminated encephalopmyelitis (ADEM), Guillain-Barre syndrome, 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 representative claims are being prepared to to trial in the MDL, to help gauge how juries may respond to certain evidence and testimony that is likely to be repeated throughout the litigation.

The first trial dates are currently scheduled to begin in November 2020, which will be selected from a group of six bellwether claims involving plaintiffs who developed a version shingles, including those involving the ears, eyes, encephalitis, meningitis, Ramsay Hunt syndrome or versions of shingles without a rash.

A second group of bellwether claims will be prepared for trial dates beginning in May 2021, which will involve claims involving other injuries from Zostavax, including conditions linked to the vaccing, such as Guillain-Barre Syndrome, Bell’s Palsy and other forms of facial paralysis, hemorrhagic stroke, aseptic meningitis, transverse myelitis and acute disseminated encephalomyelitis.

In a joint submission (PDF) filed on December 3, plaintiffs and the drug maker identified a group of eight claims that will be part of this “Group B”, including four claims selected by each side.

While the outcome of the bellwether trials will not be binding on other plaintiffs, they may greatly influence any eventual Zostavax settlement negotiations that would be necessary to avoid each of the individual cases being set for separate trial dates in U.S. District Courts nationwide in the coming years.