Court Outlines Process for Preparing Lawsuits Over Zostavax Shingles Vaccine Reactions for Trials Starting Later This Year

The U.S. District Judge presiding over all federal Zostavax lawsuits has issued an order establishing the procedures for selecting and preparing the first bellwether trials over reactions to the shingles vaccine, which will start going before juries later this year.

Merck & Co. faces nearly 2,000 product liability lawsuits over Zostavax shingles vaccine reactions, each raising similar allegations that the drug maker failed to disclose reports of severe and persistent outbreaks linked to the live-virus in the injection, as well as other auto-immune disorders experienced after the shot, such as meningitis, acute disseminated encephalopmyelitis (ADEM), 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 is marketed as protection against development of the disease for older adults. However, plaintiffs allege that live virus contained in the vaccine was not sufficiently weakened, resulting in severe complications and injury for some users.

Given similar questions of fact and law raised in complaints filed nationwide, the 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 a small group of representative claims are being prepared for early trial dates in the MDL, which are designed to help gauge how juries may respond to certain evidence and testimony that is likely to be repeated throughout the litigation.

Judge Bartle previously ordered that two groups of Zostavax cases be prepared for early trial dates; referenced as bellwether pool Group A and Group B.

In a pretrial order (PDF) issued on March 2, Judge Bartle indicated that the original 16 Group A bellwether selections have been reduced to six cases. Those claims will be further reduced to a pool of just three cases by September 24, 2021, following expert discovery, Daubert motions and dispositive motions.

A series of three trial dates will begin on November 8, 2021, with one case will be selected by the Plaintiffs’ Executive Committee, another selected by the Defendants’ Liaison Counsel and a third selected by the court. Following completion of the first trial, additional cases from the Group A bellwether pool are expected to go before juries on January 18, 2022 and March 28, 2022. Those trial dates will be followed by two Group B trials, which are set to begin on May 31, 2022 and August 1, 2022.

While the outcome of the bellwether trials will not be binding on other plaintiffs, they will be closely watched by parties involved in the litigation and are expected to greatly influence any eventual shingles vaccine settlements that the manufacturer may offer to individuals who experienced problems with Zostavax, which may be necessary to avoid the eventual need for hundreds of individual trial dates to be scheduled in U.S. District Courts nationwide in the coming years.