A federal judicial panel has sent about 100 lawsuits brought over Merck’s shingles vaccine to Pennsylvania.
Thursday’s order by the U.S. Judicial Panel on Multidistrict Litigation sends all federal cases brought over Zostavax to U.S. District Judge Harvey Bartle of the Eastern District of Pennsylvania, who has been overseeing the first case since 2016. The lawsuits, filed in Pennsylvania, New Jersey, New York, Wisconsin and Massachusetts, allege that Merck failed to warn that the virus in the vaccine caused shingles, brain damage and death, among other things.
“Issues concerning the design, testing, manufacture, regulatory approval, labeling, and marketing of Zostavax are common to all actions,” wrote the panel’s chairwoman, Sarah Vance. “Seven actions are pending in this district, and they are the earliest filed and most advanced actions in this litigation.”
The order also cited Merck’s facilities in Pennsylvania and headquarters in New Jersey.
Michaela Roberts, a partner at Venable in Baltimore who represents Merck & Co. Inc. and Merck Sharp & Dohme Corp., did not respond to a request for comment. Merck had moved for an MDL before Bartle or U.S. District Judge James Moody of the Middle District of Florida.
“My cases pending before Judge Bartle are the most advanced in the Zostavax litigation,” said Mark Sadaka of The Law Offices of Sadaka Associates in Englewood, New Jersey, a plaintiffs lawyer who supported sending the cases to Bartle. “Merck has already produced millions of pages of documents in my cases in the EDPA. Judge Bartle has already decided two summary judgment motions. I look forward to working together with other plaintiffs counsel to finally move our cases to trial.”
Marc Bern, another plaintiffs lawyer, had opposed an MDL.
“Certainly, Judge Bartle is a judge with long experience, has handled successfully other MDLs and, as the firm with by far the most individual plaintiffs in the country—over 5,000 Zostavax clients—we will be looking to be leaders in this MDL,” said Bern, of Marc J. Bern & Partners in New York.
Shingles is a rash on the side of the face or body, usually affecting persons over 50. The U.S. Food and Drug Administration approved Zostavax as a shingles vaccine in 2006.
Plaintiffs lawyers were split on whether to create an MDL.
The panel, in its order, acknowledged that an MDL would delay cases for plaintiffs, many of whom are older. But coordinating the litigation would help resolve all the cases, “even if some parties might experience inconvenience or delay.”
“While motions to dismiss have been decided in about eight actions, substantial pretrial proceedings remain,” Vance wrote.
The order does not apply to lawsuits brought on behalf of 300 plaintiffs in California state court and 800 plaintiffs in New Jersey state court.
In a separate order on Thursday, the MDL panel sent 17 lawsuits alleging several railroad industry companies conspired not to hire each other’s employees to the Western District of Pennsylvania. The “no-poach” suits, now before Chief Judge Joy Flowers Conti, allege violations of the Sherman Antitrust Act.