Merck Wishes Granted by Judges
A six-judge panel granted Merck & Co. Inc. and Merck Sharpe & Dohme Corp.’s petition to centralize 57 suits currently filed in nine different districts. The Merck petition was also supported by McKesson Corp., a co-defendant in 30 suits.
The judges held that the suits hinge on common factual questions which arise from allegations that Merck’s shingles vaccine caused plaintiffs to develop shingles or other injuries caused by live virus contained in Merck’s vaccine. Plaintiffs charge that Merck failed to sufficiently warn of the shingle’s vaccine’s substantial risks.
Live Shingles Vaccine Virus
The judiciary panel wrote: “Issues concerning the design, testing, manufacture, regulatory approval, labeling, and marketing of Zostavax are common to all actions. In this litigation, all plaintiffs allege they were injured by the same product in the same manner — exposure to the live attenuated virus in Zostavax — indicating common factual issues will arise concerning the potential risks associated with the use of the live virus in the vaccine.”
The judges noted that plaintiffs in 15 of the actions supported centralization, but they disagreed on where to send the new MDL. Plaintiffs in 30 of the actions opposed centralization, but said that if the panel insisted on it, they wanted the MDL sent to the Middle District of Florida or the Eastern District of Wisconsin.
The panel nevertheless backed Merck’s first choice for the new MDL, sending it to the Eastern District of Pennsylvania. The panel said the suits there were furthest along, and also noted Merck’s facilities were in Pennsylvania and also at its nearby New Jersey headquarters.
The panel wrote that, “Seven actions are pending in this district, and they are the earliest filed and most advanced actions in this litigation.” They further backed their choice by saying that many common documents and witnesses would likely be located in the same area.
The panel also noted its awareness of 41 more federal suits related to the litigation since Merck filed its motion.
The panel transferred the new MDL to Philadelphia-based U.S. District Judge Harvey Bartle III, who was nominated for his lifetime position by George Bush I. The six said he is an experienced transferee judge familiar with the claims and issues in the Zostavax cases. Judge Bartle is already presiding over the related cases in that district.
The defendants already have some helpful rulings from the Republican nominee Bartle, who stripped fraud claims from 10 Zostavax suits in May 2018. The judge ruled that the plaintiffs failed to back up allegations that Merck made false representations to doctors and others to hide the shingle’s vaccine’s design flaws.
Zostovax a stronger Chickenpox vaccine
Merck’s Zostavax is a stronger version of Varivax, the company’s chickenpox vaccine. Zostavax was one of the flagship results from Merck’s European joint vaccine venture with Sanofi SA. The two companies disbanded in 2016.
Brain swelling, eye disorders
Plaintiffs from across the U.S. have filed lawsuits alleging Merck failed to warn them that its shingles vaccine could cause brain swelling, eye disorders, and serious other problems. Plaintiffs’ petitions also question the efficacy of Zostavax, arguing that some groups of people who take the shot are more likely to develop shingles than if they had not taken the shot at all.
At least 12 Zostavax actions involving more than 300 plaintiffs have been filed in California state court. Those cases have been consolidated for pretrial proceedings, along with 50 Zostavax actions concerning more than 800 plaintiffs in New Jersey state court. According to the JPML order, two petitions for coordination of the New Jersey actions are pending.
Plaintiffs in the suits being consolidated are represented by Bern & Partners LLP, and other law firms.
Zostavax Shingles Suits set in Philadelphia
The case is IN RE: Zostavax (Zoster Vaccine Live) Products Liability Litigation, MDL No. 2848 before the U.S. Judicial Panel on Multidistrict Litigation.