Zostavax Lawsuit Multidistrict Litigation

The Zostavax lawsuit multidistrict litigation (“Zostavax MDL”) is a collection of hundreds of Zostavax lawsuits in federal civil court. The suits allege injuries and complications due to the Zostavax drug.

This litigation is before U.S. District Judge Harvey Bartle of the Eastern District of Pennsylvania. The Zostavax MDL was created in 2018 via court order by the U.S. Judicial Panel on Multidistrict Litigation.

In short, the plaintiffs in the litigation state that:

1. Zostavax, as designed, is unreasonably dangerous,
2. the vaccine can cause serious injuries, including death,
3. the Zostavax manufacturer failed to warn the public of the potential negative effects of using the drug, and
4. the defendants willfully misrepresented the safety of their vaccine.

The plaintiffs allege that the drug has caused such injuries as:

• neurological diseases or disorders, like brain inflammation (or encephalitis) and brain damage,
• spinal cord inflammation (or myelitis), and
• hearing loss.

If successful in their claims, the Zostavax MDL plaintiffs may receive compensation in the form of:

• compensatory damages, and
• punitive damages.

Merck & Co Inc. Pharmaceuticals, or the manufacturer of Zostavax, will likely raise five legal defenses in response to the litigation. These defenses are:

1. no design defect,
2. if a defect, the defect did not cause any injury,
3. the plaintiffs were negligent in taking the vaccine,
4. the plaintiffs assumed the risk, and
5. any applicable statute of limitations expired.

A person may join in the Zostavax MDL if he meets three conditions. These are:

1. he took Zostavax after 2006 (the year it was licensed by the Food and Drug Administration (“FDA”)),
2. he experienced shingles anywhere between three weeks to a year after taking the vaccine, and
3. he was diagnosed with shingles by a licensed doctor or physician.

Our national mass tort lawsuit attorneys will highlight the following in this article:

• 1. What is the Zostavax MDL?
• 2. What are some examples of lawsuits within the Zostavax MDL?
  • 2.1 Wisconsin plaintiff
  • 2.2 South Carolina plaintiff
  • 2.3 New Jersey plaintiffs
• 3. How will plaintiffs in the Zostavax MDL be compensated?
• 4. What are the possible legal defenses that might be raised in the Zostavax MDL?
• 5. Who may join the Zostavax multidistrict litigation?
• 6. How does multidistrict litigation work?

1. What is the Zostavax MDL?

Numerous lawsuits have been filed in federal civil court alleging injuries due to the drug Zostavax. A federal judicial panel recently consolidated many of the lawsuits and created the Zostavax MDL.¹ This litigation is before U.S. District Judge Harvey Bartle of the Eastern District of Pennsylvania.

In short, the plaintiffs in the Zostavax MDL allege that:

1. Zostavax, as designed, is unreasonably dangerous,
2. the vaccine can cause serious injuries, including death,
3. the company’s manufacturer, Merck & Co Inc. Pharmaceuticals, failed to warn the public of the potential negative effects of using their drug, and
4. the defendants willfully misrepresented the safety of their vaccine.

The plaintiffs are seeking compensation for injuries such as:

• neurological diseases or disorders, like brain inflammation (or encephalitis) and brain damage,
• spinal cord inflammation (or myelitis),
• hearing loss,
• blindness,
• liver damage and liver failure, and
• neuropathy.

The order creating the Zostavax MDL does not apply to lawsuits brought on behalf of 300 patients in California state court and 800 plaintiffs in New Jersey state court.²

The first Zostavax trials are expected to take place sometime between fall 2020 and summer 2021.

The first Zostavax lawsuit was filed in 2016.³ Since that time, thousands of similar suits have been filed across the nation.

2. What are some examples of lawsuits within the Zostavax MDL?

Three different lawsuits help exemplify the types of claims alleged in the Zostavax MDL and the injuries the claimants have suffered. These lawsuits contain plaintiffs in the states of:

1. Wisconsin.
2. South Carolina, and
3. New Jersey.

2.1. Wisconsin plaintiff

A Wisconsin woman filed a suit against Merck alleging that, rather than Zostavax protecting her against Shingles, the drug caused her to develop repeated outbreaks of the virus.⁴

The woman was first vaccinated with the medicine in 2011. Since that time, she experienced several episodes of “post-herpetic neuralgia.” This is a complication of shingles that causes rash and burning nerve pain.⁵

The plaintiff states that she lives with chronic pain from her Zostavax vaccinations.⁶

2.2. South Carolina plaintiff

A man in South Carolina filed a Zostavax lawsuit (in Pennsylvania) alleging that he began experiencing the loss of vision in one eye two months after receiving the drug. The man was later diagnosed with “retinal necrosis,” or tissue decay in his retina.⁷

Among other claims, the man states that Merck:

• failed to warn the public of the negative effects of Zostavax, and
• produced a defective medicine.⁸

2.3. New Jersey plaintiffs

In July of 2017, several plaintiffs filed a lawsuit against Merck in New Jersey.⁹ The plaintiffs themselves come from a range of states, including:

• Louisiana,
• Tennessee, and
• Michigan.

The plaintiffs assert that Zostavax caused them to develop shingles, rather than prevent them from getting the illness. They state the drug caused:

• pain,
• hospital visits, and
• post-herpetic neuralgia in two cases.¹⁰

The suit’s allegations include:

• negligence,
• defective drug design,
• failure to warn,
• misrepresentation involving risk of physical harm, and
• unjust enrichment.¹¹

3. How may plaintiffs in the Zostavax MDL be compensated?

Compensatory damages compensate a plaintiff for losses in personal injury cases. Compensatory damages for an accident or injury fall into two basic categories:

• “economic” (pecuniary) damages, such as medical bills, property damage and lost wages, and
• “non-economic” damages, such as pain and suffering.

Compensation in a personal injury case may also include punitive damages. Punitive damages are also known as “exemplary” damages.

Unlike compensatory damages, punitive damages are based not on the plaintiff’s losses, but on the reprehensibility of the defendant’s conduct and the defendant’s ability to pay.

They are granted to punish a defendant who has acted with malice, oppression or fraud, typically in cases of intentional harm or extreme recklessness.

When granted, punitive damages are in addition to amounts awarded as compensatory damages.

4. What are the possible defenses that may be raised in the Zostavax MDL?

There are five legal defenses that Merck may raise in the Zostavax MDL. These defenses will be raised to counter the plaintiffs’ allegations. The defenses are:

1. no design defect,
2. if a defect, the defect did not cause any injury,
3. the plaintiffs were negligent in taking the vaccine,
4. the plaintiffs assumed the risk, and
5. any applicable statute of limitations expired.

5. Who may join in the Zostavax MDL?

A person may join in the Zostavax multidistrict litigation if he meets three conditions. These are:

1. he took Zostavax after 2006 (the year it was licensed by the FDA),
2. he experienced shingles anywhere between three weeks to a year after taking the vaccine, and
3. he was diagnosed with shingles by a licensed doctor or physician.

A person may also be able to join the Zostavax MDL if he suffered from a certain injury within two years from taking Zostavax. Some of these injuries are:

• postherpetic neuralgia (“PHN”)
• stroke,
• hearing loss,
• congestive heart failure,
• blindness,
• certain neurological disorders,
• pneumonia, and
• death.

6. How does multidistrict litigation work?

Multidistrict litigation is a procedure where a collection of federal civil cases, filed across the nation, are transferred to one federal court. For this procedure to be used, the cases involved must have common questions of fact.

Once transferred, one judge manages the litigation for all of the pretrial proceedings. These pretrial proceedings include:

• gathering evidence during the discovery process,
• motions to dismiss the case,
• motions for summary judgment,
• evidentiary challenges,
• depositions and interrogatories,
• settlement offers.

If a case does not settle during these pretrial proceedings, it is then transferred back to the district court from which it originated.

If new claims are filed by new victims that involve the same or similar fact patterns as a case already in multidistrict litigation, those new claims can be transferred and included in the MDL. These are referred to as tag-along cases.

It’s also common for an MDL to “test out” the lawsuits by hearing a series of bellwether trials. These are representative cases selected by:

• the court,
• the plaintiffs’ lawyers, and
• the defendants’ lawyers.

The cases are brought to trial to get a picture of how juries respond to the claims and defenses. The bellwether trials set the stage for settlement negotiations.

Did you experience an injury or adverse condition after taking Zostavax? Call us for help…

If you or someone you know has experienced an injury or adverse effect upon taking the Zostavax vaccine, we invite you to contact us for a free consultation. We can be reached 24/7.

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