Federal Zostavax Lawsuits to Begin Discovery Process

The federal Zostavax lawsuits currently pending in a multidistrict litigation (MDL) are set to begin moving through the discovery process, according to a plan recently approved by the U.S. District Judge who is overseeing the MDL. Judge Harvey Bartle III is presiding in the U.S. District Court for the Eastern District of Pennsylvania. The approved plan establishes the procedures for the parties to exchange information about the cases and the plaintiffs’ injuries.

About Zostavax

Shingles is a serious disease that commonly affects older adults. Anyone who has had chickenpox is at risk of developing shingles, as the virus lies dormant in the body for the rest of the individual’s life. Because of the risk of serious complications, such as post-herpetic neuralgia and vision loss, prevention is preferable. However, some patients are alleging that their efforts to prevent shingles have also resulted in complications.

Zostavax is a vaccine that has been FDA approved to reduce the risk of shingles in patients 50 years and older. It’s a live, attenuated vaccine, which means it does not inject dead viral matter into the body to trigger antibody production. Instead, the injection contains live, but weakened viral matter. According to the plaintiffs who have filed lawsuits against the manufacturer of Zostavax, Merck & Co., the virus used in the vaccine wasn’t sufficiently weakened and it allegedly caused the plaintiffs to develop shingles.

The pretrial discovery process

Judge Bartle recently issued a pretrial order for MDL 2848, which outlines the discovery process, enabling the involved parties to begin gathering records and information, and taking depositions of witnesses. As part of the discovery process, the attorneys for all involved parties will be required to meet to discuss the Defendant Fact Sheets and Plaintiff Fact Sheets.

Multidistrict litigations centralize federal lawsuits filed against common defendants, and sharing similar allegations and statements of fact. The purposes of an MDL include eliminating the possibility of duplicative discovery, streamlining the discovery process, and consolidating the resources of the involved parties. However, each plaintiff joined to the MDL still retains the right to seek an individual trial by jury.

Next steps in the Zostavax MDL

The right to have an individual trial is one of the main differences between an MDL and a class action defective drug lawsuit. As the discovery process comes to an end, Judge Bartle will schedule a handful of bellwether trials. These are the initial cases to go to trial, and they are intended to serve as a representative sampling for the rest of the cases. The outcomes of the bellwether trials are not binding upon any other Zostavax lawsuit. The purpose of these initial trials is to assess how juries respond to various physical evidence and witness testimony.

If the bellwether trials result in substantial jury awards for the plaintiffs, then the defendants may feel more pressure to settle the rest of the cases. Plaintiffs are not required to accept a settlement agreement, however. Any cases that aren’t settled while attached to the MDL will be remanded back to their home districts for an individual trial.

Additional Resources:

1. U.S. Food & Drug Administration, Zostavax (Herpes Zoster Vaccine) Questions and Answers, https://www.fda.gov/biologicsbloodvaccines/vaccines/questionsaboutvaccines/ucm070418.htm
2. Mayo Clinic, Shingles, https://www.mayoclinic.org/diseases-conditions/shingles/symptoms-causes/syc-20353054