Zostavax was the first vaccine for the prevention of the herpes zoster virus, which is commonly known as “shingles.” Shingles is caused by the same virus responsible for chickenpox which occurs during childhood. Shingles is the adult version of chickenpox, and it most often affects people over the age of 50.
After an outbreak of chickenpox during childhood, the virus lies dormant inside nerve cells for years. In most people, the virus never reappears, but in certain individuals, the long-dormant virus suddenly comes back to life as shingles later in their adulthood. Shingles are a very painful condition and cause a rash with significant blisters appearing on the skin.
What Is the 2024 Zostavax Lawsuit Update?
Last year, the Zostavax class action judge dismissed all of the Zantac lawsuits in the MDL in the U.S. District Court for the Eastern District of Pennsylvania after plaintiffs failed to produce sufficient evidence in the court’s mind that connects the vaccine to their injuries. The 3rd Circuit affirmed on July 16, 2024.
Plaintiff’s Third Circuit Appeal Kills Federal Court Cases
The United States Court of Appeals for the Third Circuit upheld the dismissal of 1,189 cases against Merck & Co., Inc. and Merck Sharp & Dohme Corp.related to the Zostavax vaccine. The dismissal kills all federal court Zostavax lawsuits in this MDL unless a miracle happens and the Supreme Court overturns the 3rd Circuit on appeal.
Entry of PTO 426 and Subsequent Non-compliance
In January 2022, Merck requested a Lone Pine order, which the District Court granted in March 2022 as PTO 426. This order required Group A plaintiffs to produce PCR test reports to establish specific causation. Plaintiffs opposed the motion, arguing that PCR testing could only be performed on active rashes, which had since healed. Despite this, the court maintained that PCR testing was essential to distinguish between shingles caused by the wild-type virus and the Zostavax vaccine.
Plaintiffs failed to comply with PTO 426 within the 90-day period, prompting Merck to move for dismissal under Rule 41(b) or, alternatively, for summary judgment. The District Court ultimately dismissed the 1,189 Group A cases with prejudice in December 2022, noting the undisputed necessity of PCR testing to prove causation and the plaintiffs’ inability to produce such evidence.
Third Circuit’s Affirmation
The Third Circuit reviewed the District Court’s decision for abuse of discretion and found none. The plaintiffs contended that the entry of PTO 426 was improper and that the District Court erred in dismissing the cases under Rule 41(b). The Third Circuit disagreed, highlighting that the plaintiffs were given multiple opportunities to comply with the order and present their case but failed to do so.
The appellate court also evaluated the application of the Poulis factors, which guide whether a dismissal is appropriate. These factors include the plaintiffs’ responsibility, prejudice to the defendant, history of dilatoriness, willfulness or bad faith, effectiveness of alternative sanctions, and the meritoriousness of the claim. The Third Circuit concluded that the District Court had appropriately balanced these factors and that dismissal was warranted due to the plaintiffs’ prolonged inaction and inability to provide the necessary evidence.
Again, barring a Supreme Court appeal, this MDL is dead. We hate to put is so bluntly but that is the reality.
Zostavax Lawsuits
Not long after the Zostavax was first released, it became apparent that there was a problem with the popular shingles vaccine. For most people, Zostavax worked precisely as intended without any side effects. However, in a certain percentage of people, the Zostavax vaccine not only failed to protect them from shingles but caused them to develop a variant strain of the shingles virus that was more painful and difficult to treat.
All vaccines work on the same principle. They expose the body to a small, reduced-strength virus sample, which the body’s immune system can easily block and destroy. Afterward, the person develops immunity to that virus. Developing a safe viral vaccine requires a delicate balancing act. The sample of the virus in the vaccine has to be diluted enough to prevent it from causing infection, but if the virus is too diluted, it will make people more susceptible.
The Zostavax vaccine was developed and sold by Merck, a large pharmaceutical company based in New Jersey. Like all vaccines, Zostavax was a diluted form of the actual shingles virus. Unfortunately, for certain patients, the strain of the shingles virus in Zostavax was not diluted enough, and they developed a variant strain of the shingles virus. This variant of the shingles virus is more difficult to treat and causes more internal health problems and more painful symptoms.
Potential Value of Zostavax Lawsuits
Since 2016, numerous Zostavax lawsuits have been filed against Merck by people who developed the more potent shingles virus from the vaccine. Estimating the potential settlement or trial value of the Zostavax cases is somewhat tricky for several reasons. First, the Zostavax cases are relatively new and were recently consolidated into an MDL in Philadelphia. This means that none of the Zostavax cases have actually been settled or gone to trial yet, so we don’t have any prior history for direct comparative valuations. The other thing that makes it hard to estimate the value of the Zostavax lawsuits is the wide variation in the type of injuries allegedly caused by the vaccine.
The more powerful strain of the shingles virus caused by Zostavax allegedly led to more serious physical injuries, including cardiovascular damage, chronic joint and muscle pain, and sometimes even death. The estimated value of a Zostavax case will vary depending on the level of injury involved. For our purposes, we will break the potential cases down into three categories of injury.
Shingles Virus Only Settlement Amount Predictions
[Note: Like many of these sections, this was written long before these lawsuits were dismissed by the trial court and the 3rd Circuit. The real value of a Zostavax lawsuit in 2024 approaches zero.]Our first category will include Zostavax cases where the injury is limited to developing the more potent strain of the shingles virus. There are no prior reported settlements or verdicts from other cases in which the injury involved the development of a shingles virus. However, we can make comparisons to similar types of diseases or conditions for valuation purposes.
The primary symptoms of the shingles virus are somewhat comparable to bed sores (pressure sores or decubitus ulcers) which also cause skin rashes and underlying joint and muscle pain. Bed sores are frequently litigated in nursing home negligence cases, so we have plenty of comparative settlements and verdicts. The average value range for a bed sore case is $100,000 to $600,000. Below are a few recent examples of nursing home settlements and verdicts involving bed sores:
- 2016 New Jersey: $300,000 Settlement: 88-year-old nursing home patient develops severe pressure sores in the buttocks sacral areas and suffers from them for over a month before he dies from unrelated causes. The case settled for $300,000, which indicates the perceived value of 1 month of pain and suffering from bed sores.
- 2015 New York: $500,000 Verdict: stage II or III bed sores develop on the buttocks of an 86-year-old man while he is bedridden following surgery. He suffers from bed sores for almost a year before dying. His estate sues the hospital for failing to reposition him enough to prevent the bed sores. Jury awards $500k for pain and suffering.
- 2015 Pennsylvania: $110,000 Settlement: elderly hospital patient develops several pressure sores throughout his body. He later dies, but his death proves to be unrelated to the bed sores. His family agrees to settle the case for $110,000, primarily related to the bed sore injuries.
- 2012 Illinois: $575,000 Settlement: 77-year-old woman develops stage III bed sores from neglect in an elderly rehab facility and was ultimately hospitalized for complications relating to the bed sores. The case settled out-of-court for $575,000.
Shingles and Serious Health Conditions
This second group of Zostavax lawsuits covers cases in which the plaintiffs got the stronger version of the shingles virus, and it caused more serious conditions or injuries such as cardiovascular conditions, vision or hearing loss, lymph node disease, etc. To estimate the potential value of Zostavax cases in this category, we can look at other mass tort cases involving drugs that caused similar internal damage, such as Pradaxa; Xarelto; and other dangerous drugs. Based on this comparison, it is reasonable to estimate that Zostavax cases in this category will have a settlement value range of $1,000,000 to $3,000,000.
Shingles and Death
Our final category is for Zostavax wrongful death cases. In a handful of cases, the more potent form of shingles caused by the Zostavax vaccine led to significant internal damages which eventually caused death. We can estimate the potential value of these cases by looking at other wrongful death settlements. The value of wrongful death claims often depends on the age and status of the person that died. The average value of a wrongful death for an adult is about $4 million for all types of cases. The average for the death of a minor is slightly higher at $4.5. A wrongful death claim for someone over the age of 65 is significantly less at $1.6 million.
You really need to keep in mind that this is just wild speculation. No one knows what the settlement value will be for the Zostavax lawsuits. We are throwing a few darts on the board to try to guess about the possible range of settlement values in the Zostavax litigation because people want to hear theories and speculation on the monetary value of their potential claims. Remember, civil lawsuits are about money and there is nothing wrong with curiosity as to how much money you might get for your claim.
2024 Caveat on Zostavax Settlement Projections
Again, these Zostavax settlement predictions were made before these lawsuits were dismissed. These projections assumed that the cases are successful. Let’s be realistic. If you are one of the 2,013 plaintiffs in the Zostavax MDL, the overhelming likelihoo is that your lawsuit will amount to nothing. We are sorry about that. It is absolutely unfair.