Zostavax Lawsuit Statute of Limitations

The precise Statute of Limitations (“SOL”) applicable to a Zostavax lawsuit will depend on:

  1. the state in which the suit is filed, and
  2. the legal theory upon which the lawsuit is based.

This means that not all of these suits will have the same SOL since:

  • the suits are filed in multiple states, and
  • they are being based on different theories of the law.

But please know that all claimants filing a Zostavax lawsuit must do so before the relevant SOL expires.

One Zostavax case has already been dismissed on grounds relating to statute of limitations.

A SOL is a law that sets the maximum time period for which a plaintiff can file a lawsuit. A SOL is also known as the “limitations period.” For most states, this time period begins to run, or start, on the day the plaintiff discovers his injury.

Examples of a statute of limitation include:

  • California law says that a personal injury case has to be filed within two years.
  • Tennessee law says that most breach of contract cases have to be filed within six years.
  • Illinois law says that a breach of warranty claim has to be filed within four years.

Under some circumstances, the SOL stops or gets suspended. This is known as “tolling.”

One of the main reasons the law puts a limit on when a plaintiff can file a lawsuit is to preserve a sense of fairness within the justice system.

The “Zostavax lawsuits” refer to the thousands of cases people have filed against the drug's manufacturer Merck & Co Inc. Pharmaceuticals since 2016. The plaintiffs in these lawsuits allege that, in addition to normal complications with the medicine, the vaccine causes other conditions, like:

  • Shingles, or the illness the medicine was designed to prevent,
  • neurological diseases or disorders, like brain inflammation (or encephalitis) and brain damage,
  • spinal cord inflammation (or myelitis), and
  • hearing loss,

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

graphic representing herpes zoster
Herpes Zoster Virus

1. What is the statute of limitations when filing a Zostavax lawsuit?

All Zostavax lawsuits do not have the same SOL. The precise limitations period applicable to a Zostavax lawsuit will depend on:

  1. the state in which the suit is filed in, and
  2. the legal theory upon which the lawsuit is based.

Despite differing SOLs, though, please note that all Zostavax suits must be filed before their precise limitation period expires.

1.1. State the case is filed in

States do not always have the same SOL for the same cause of action, or reason supporting a lawsuit.

For example, consider a situation in which a plaintiff wants to file a lawsuit for personal injuries sustained in a car accident. If the accident took place in the State of Florida, and the plaintiff wanted to file the lawsuit there, he would typically have four years to file it.1

But if the accident took place in California, and the plaintiff wanted to file the lawsuit there, he would typically have just two years to file it.2

Since Zostavax lawsuits have been, and are, getting filed in multiple states across the nation, this means that one blanket statute of limitations cannot be given for all Zostavax lawsuits. The statute of limitations may vary depending on the laws of the particular state where the plaintiff decides to file the suit.

It is best for a person to consult with an experienced mass tort, or personal injury attorney, to learn more on the statute of limitation for his particular case.

1.2. Legal theory forming the basis of the suit

A SOL may differ for legal theories forming the basis of a lawsuit.

For example, two legal theories supporting the basis for a possible Zostavax lawsuit are:

  1. negligence (or a claim that Merck behaved unreasonably in some way), and
  2. breach of warranty (or a claim that Merck promised something as to the safety of its drug, and that claim was false).

Consider that a person wants to file a Zostavax lawsuit in the State of California based on either a negligence claim or a breach of warranty claim. There is not one true statute of limitations for this person since these two legal theories have different SOLs under California law. While most California negligence claims have a two-year statute of limitations, most warranty claims (for written warranties) have a four-year limitations period.

Since Zostavax lawsuits are based upon differing legal theories, this means that one blanket statute of limitations cannot be given for all Zostavax lawsuits. The statute of limitations may vary depending on the particular cause of action a plaintiff is using.

In addition to the above legal theories, a few other theories being used in Zostavax suits are:

  • design defect (or a claim that Zostavax, as designed, was unreasonably dangerous),
  • failure to warn (or a claim that Merck failed to warn of its drug's risks),
  • fraudulent misrepresentation (or a claim that Merck knew its medicine could cause shingles and it misrepresented that fact),
  • negligent misrepresentation (or the claim that Merck knew its drug could cause serious harm and did not warn of it), and
  • unjust enrichment (or a claim that the plaintiff paid Merck for a safe medicine and did not receive one).

2. Have any Zostavax lawsuits been dismissed on statute of limitations grounds?

At least one suit has been dismissed on SOL grounds.3 The dismissal came in federal court in 2016. The case was dismissed based upon:

  1. the running of the applicable statute of limitations, and
  2. the issue as to when the plaintiff discovered his injuries.4

Please note that this dismissal does not affect the other pending Zostavax cases.

3. What is a statute of limitations?

A statute of limitations is a deadline by which a lawsuit must be filed. Once the statute of limitations has run, or expired, a plaintiff can no longer sue for damages or other relief.

As noted above, the statute of limitations for suits varies depending on the:

  • state in which a claim is filed, and
  • legal theory for the lawsuit.

Please note that it is important to know when a SOL expires and when a limitations period begins to run. For most states, the clock on this period starts on the day the plaintiff discovered his/her injury. This is known as the discovery rule.

4. What is the “tolling” of a statute of limitations?

Sometimes the statute of limitations is suspended or does not begin running for a certain period of time. This is known as “tolling.” For instance, the statute of limitations may be tolled when the defendant is:

  • out of the state,
  • in prison, or
  • legally insane.

Once the condition leading to tolling has ended, the statute of limitations begins to run or resumes.

5. Why are there limitations period for filing a lawsuit?

Statutes of limitations exist out of a sense of fundamental fairness. Evidence often gets lost or destroyed with the passage of time. Witnesses in cases may also move after several years, or, they may no longer recall certain facts that took place. The result is that it would be unfair to have a party defend a lawsuit after a certain period of time has passed.

A limitations period encourages plaintiffs to diligently pursue their claims and protects people from having to defend “stale” claims.5

attorneys working on zostavax lawsuits
Zostavax lawsuits are legal claims asserted by consumers of the drug against Merck.

6. What are the Zostavax lawsuits?

Zostavax lawsuits are legal claims asserted by consumers of the drug against Merck.

These suits mainly allege that the drug is defectively designed, and Merck failed to adequately warn about serious side effects. Plaintiffs are seeking compensation for injuries such as:

  • development of shingles (the virus Zostavax was meant to prevent),
  • hearing loss,
  • blindness,
  • paralysis, and
  • fatal liver failure.

The first Zostavax lawsuit was filed in 2016.6 Since that time, thousands of similar suits have been filed across the nation.

A federal judicial panel recently consolidated many of the lawsuits in federal court and created the Zostavax lawsuit multi district litigation (“Zostavax MDL”).7 This litigation is before U.S. District Judge Harvey Bartle of the Eastern District of Pennsylvania. Judge Bartle has been overseeing the very first Zostavax case filed.8

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

  1. Zostavax, as designed, is unreasonably dangerous,
  2. the vaccine can cause serious injuries, including death,
  3. Merck (and the company's owner) Bayer 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 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.9

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

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

zostavax lawsuit attorneys
Call us for help at (855) LAW-FIRM

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 at 855-LawFirm.


Legal References:

  1. F.S.A. 95.11(3)(a).

  2. Cal. Civ. Proc. Code 335.1.

  3. Juday v. Merck & Co., 730 Fed. Appx. 107.

  4. See same.

  5. See, e.g., Jolly v. Eli Lilly (1988) 44 Cal.3d 1103.

  6. The Legal Intelligencer, “MDL Panel Sends Shingles Vaccine Lawsuits to Pennsylvania,” August 2, 2018.

  7. See same.

  8. See same.

  9. See same.

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