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Two Groups Of Shingles Vaccine Cases To Be Prepared For Bellwether Trials

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The U.S. District Judge presiding over all federal shingles vaccine cases, involving problems following a Zostavax injection, has outlined the process for selecting two groups of cases that will be prepared for a series of bellwether trials expected to begin between late 2021 and mid-2022.

Merck & Co. currently faces more than 1,300 product liability lawsuits filed throughout the federal court system, each raising similar allegations that the drug maker failed to adequately warn about side effects of the Zostavax vaccine, which has been linked to reports of severe and persistent shingles outbreaks, as well as other auto-immune disorders, 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 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 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.

In a pretrial order (PDF) issued on July 16, Judge Bartle indicated a “Group A Bellwether Trial Pool” that originally included 16 representative cases, has been narrowed down to six claims that are eligible for the first series of trials scheduled to begin on November 8, 2021, January 18, 2022 and March 28, 2022.

From that group of six cases, Plaintiffs and Defendants will each select one of the trial cases, with a third claim selected by the Court.

While pretrial discovery continues to prepare those cases for trial, Judge Bartle also outlined the process for selecting a second group of shingles vaccine cases that will be prepared for “Group B” trials that will 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.

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