Mounting Zostavax Shingles Vaccine Lawsuits Lead to Calls for Centralization in New Jersey State Court

The New Jersey Supreme Court is considering a request to consolidate and centralize all Zostavax lawsuits pending in the state court system, since they all raise similar allegations that side effects of the shingles vaccine caused plaintiffs to suffer a more serious and persistent strain of the infection. 

Zostavax was introduced by Merck in May 2006, for the prevention of shingles among individuals ages 60 or older. It is a more potent version of the Merck chickenpox vaccine, Varivax.

According to allegations raised in dozens of product liability lawsuits filed over the shingles vaccine, Merck used an under attenuated live strain of the varicella zoster virus (VZV) in Zostavax, which was not weakened enough to prevent reactivation of the virus. Instead of the body developing the proper immune response, the live virus combined with the old virus in some users, resulting in a more virulent strain of shingles.

On May 9, the Acting Administrative Director of the Courts, Glenn A. Grant, issued a Notice to the Bar (PDF), announcing that the state Supreme Court has received two applications for a multicounty litigation (MCL) to be established, indicating that anyone wishing to comment on or object to an application filed by the drug makers must provide their response by June 8, 2018.

Currently, there are more than 285 individual plaintiffs with Zostavax cases pending in New Jersey state courts, according to an application filed by plaintiffs in February.

“Several of these cases are currently pending before 10 different Judges with no coordination of discovery or centralized management,” the application, attached to the Notice to the Bar, states. “These cases involve serious injuries and the number of Plaintiffs will only grow as more people realize that they have been injured by Merck’s Zostavax vaccine.”

The notice comes just a couple weeks after a similar motion to transfer was filed at the federal level with the U.S. Judicial Panel on Multidistrict Litigation (JPML) by Merck, who indicates that there are at least 57 shingles vaccine lawsuits filed in federal courts nationwide, involving a total of 117 plaintiffs.

In complex pharmaceutical litigation, where large numbers of claims are brought by users of the same medication, each claiming similar injuries, it is common for the federal courts to centralize the lawsuits before one judge to reduce duplicative discovery into common issues, avoid conflicting pretrial rulings and serve the convenience of the parties, witnesses and the judicial system. In New Jersey state court, an MCL is very similar, but only affects cases filed in state court.

Zostavax sales have fallen in recent years, pulling in $668 million for Merck in 2017.

Shingles is caused by the same virus, varicella zoster, which causes chickenpox. Later in life, the virus can be reactivated and cause shingles, which is a painful rash that usually appears as a stripe of blisters on the body. Pain can continue even after the rash is gone, which is known as postherpetic neuralgia.

Shingles itself can cause scarring, bacterial infections, encephalitis, hearing loss, vision problems and other complications.

According to the lawsuits, Zostavax fails to perform as advertised and even increases the risk of shingles, due to its use of live virus.