A new product liability lawsuit was filed in New Jersey involving the Zostavax vaccine, which is intended for the prevention of herpes zoster which is more commonly known as the shingles virus for adults 60 years of age or older.
The Zostavax shinges lawsuit in the MDL was originally filed on behalf of 22 plaintiffs (over 600 in 2019). They alleged that this Merck vaccine was unsafe for patients. The key injury, incredibly, is that the Zostavax shingles vaccine actually causes shingles. The thing that was meant to protect them against shingles actually caused shingles.
The Zostavax shingles suits make a lot of allegations against Merck. Many of the extraneous claims have already been dismissed. But the core of it is plaintiffs' attorneys allege that Merck knew or should have known of the risks and reactions associated with their product. Because Merck knew of the risks, it had a legal obligation to provide warnings that fairly and accurately depicted the severity of the risks associated with the Zostavax. If this can be proven and individual plaintiffs say that if they and their doctors had been were equipped with the knowledge of the defective condition and potential harms of the Zostavax vaccine, the doctor would not have prescribed it and the patients would not have agreed to allow it to be injected into their body.
- Speculation about Zostavax claims settlement value based on the value of similar types of cases and injuries
The herpes zoster virus is the same virus that, in young people, causes chickenpox. When the virus triggers an episode of chickenpox, it is called varicella. When the virus triggers an episode of shingles, the virus is called zoster. For short, the virus is known as varicella-zoster virus or VZV.
The incidence of shingles is highest among people who are in their fifties and older, impacting 200,000 healthy people between the ages of 50 and 59 every year in the United States. Overall, there are roughly one million singles cases a year in this country. While older people are at greater risk, people of all ages can get shingles.
When shingles develop, a rash or blisters appear on the skin. This is a sign that the once dormant virus hiding out in the nerve cells has reactivated and traveled from the nerves and followed a path out to the skin. If you have had the disease or know someone who has, you know it is not fun.
Shingles are caused by the varicella-zoster virus, the same virus that causes chickenpox. After getting chickenpox, usually as a child, the virus lies dormant in little groups of nerve cells attached to sensory nerves along the spine, and sometimes inside the head. Most of us live with this and nothing happens. But for reasons that science does not yet fully understand, this virus can return in the form of shingles.The New Jersey Lawsuit
This lawsuit filed in New Jersey a few weeks ago alleges that all 22 victims took Zostavax vaccine to avoid shingles, but instead developed a recurring strain of herpes zoster, which is more difficult to treat than usual.
So what happened? Like most vaccines, Zostavax is the live form of the virus. The hope with vaccines is that a weakened form of the virus will act as a training course for the immune system. Zostavax is intended to provide just enough to keep the virus dormant and prevent a shingles outbreak. So the vaccine prepares the body to fight shingles without exposing it a powerful enough form of the disease that causes symptoms.
Obviously, vaccines require a careful balancing act. There is a risk that a live virus vaccine is that it is not weakened enough to prevent exposing the patient to the very disease they were seeking to avoid. Conversely, if the virus is too weak to activate the immune system, there is an increased risk of developing the disease the vaccine is intended to prevent. Of course, we pay the pharmaceutical companies a gazillion dollars to get this balance right.
This Zostavax vaccine shingles lawsuit claims that Merck used got this balance wrong. In this case, the strain of the varicella zoster virus was not weakened enough to prevent reactivation of the virus. So patients endured a combination between the live virus combined with the old virus, creating an even more powerful stand of the shingles virus. This lawsuit alleges Merck failed to exercise reasonable care in the design, labeling, testing, formulation, manufacture, sale, marketing and distribution of Zostavax because Merck knew, or should have known, that its product caused a shingles infection.
Since Zostavax was introduced 12 years ago, Vaccine Adverse Event Reports (“VAERS”) appeared in significant numbers addressing various complications. The core of the complaints has been viral infections resulting in some central nervous system disease. One of those CMS diseases is disseminated encephalomyelitis which causes inflammation of the brain and spinal cord.
In the last two years, there have been over 1,000 reports to the FDA of serious adverse event reports regarding the zoster vaccine, including reports of 36 deaths. The injuries include cardiovascular injury, joint and muscle pain, rashes, pneumonia, vision and hearing loss, cellulitis, lymph node disease, actinic keratosis, severe cutaneous disease, post-herpetic neuralgia (PHN) weakness, numbness, facial paralysis, brain inflammation (encephalitis), and, tragically, death.
This lawsuit comes on the heels of a similar suit filed on behalf of 15 victims in New Jersey state court in July. Why is New Jersey the venue for these cases? Lawsuits against Merck are often filed in state court in New Jersey because Merck is incorporated in New Jersey, allowing plaintiffs to avoid federal court.Zostavax MDL Update
In July 2019, the Judge presiding over the Zostavax MDL cases gave plaintiffs their first taste of victory. Since the start of the discovery process in the Zostavax cases, Merck and its attorneys have flatly refused to turn over records for all "adverse event reports" regarding their Zostavax shingles vaccine. Adverse event reports are submitted by doctors, pharmacists, and consumers to notify the manufacturer when their drug or vaccine causes bad reactions or problems. These reports are a critical piece of evidence in the Zostavax case because they can help plaintiffs establish that there was a clear problem with the shingles vaccine and that Merck was fully aware of it. Plaintiffs in the Zostavax MDL filed a motion to compel asking the court to basically force Merck to provide them access to its adverse event reports. The Zostavax MDL judge granted that motion and ordered Merck to produce the reports, marking a decisive first victory for plaintiffs in this ongoing class action MDL.
So far the judge in the Zostavax MDL, Hon. Harvey Bartle, III, has been efficiently moving the 600+ pending cases right along. Judge Bartle has already laid plans for the first round of Zostavax "bellwether" cases to be remanding for trial starting in November 2020.
The defense to these cases is going to be a familiar one to lawyers in mass tort cases. The defendants are going to hide behind the skirt of the FDA and claim that the FDA approved Zostavax because it too thought it was safe and effective.
We think that defense is going to fall on its face. Clearly, there is no way to know how a mass tort claim is going to turn out. Our lawyers have made predictions about case in the past and have been wrong. That said, the best guess here is that these cases will reach a global settlement for the lion's share of these cases long before the first Zostavax shingles lawsuit goes to trial.
If you or someone you care for has been harmed from Merck's Zostavax vaccine, our class action attorneys would like to talk to you. Please contact us today by calling 800-553-8082 or get a FREE online case evaluation.