San Francisco-based McKesson, which is facing claims that it misrepresented the vaccine’s safety, filed a motion to dismiss Thursday in the U.S. District Court for the Eastern District of Pennsylvania, contending that 92 cases should be dismissed because the complaints failed to give sufficient details about the allegations.
“Despite clear guidance from this court and others, plaintiffs and their counsel still fail to specify who made the alleged representations, what was said, when and where the representations were made, why they were untrue, and how plaintiffs were misled,” McKesson said in a 32-page filing. “Instead, the complaints allege that McKesson made unspecified misrepresentations about Zostavax over a 12-year period, in unidentified documents, through unidentified speakers, and under unspecified circumstances.”
Shingles is a rash on the side of the face or body, usually affecting people older than 50. In 2006, the U.S. Food and Drug Administration approved Zostavax as a shingles vaccine.
The litigation hinges on claims that the drug, which was manufactured by Merck—another defendant in the case—caused elevated blood pressure, headaches, eye injury and in some cases, death. Lawsuits were filed in Pennsylvania state court, and federal courts in Pennsylvania, New Jersey, New York, Wisconsin and Massachusetts. However, the litigation was eventually consolidated into a multidistrict litigation before U.S. District Judge Harvey Bartle of the Eastern District of Pennsylvania.
According to the list of pending MDLs, as of Feb. 15, 532 actions are on the In re Zostavax (Zoster Vaccine Live) Product Liability Litigation docket.
In its motion to dismiss, McKesson contended that the court already dismissed four cases for similarly failing to sufficiently allege a claim.
Along with arguing that the plaintiffs failed to point to specific statements or company officials who misled the plaintiffs, McKesson also argued that, at more than 90-pages, the complaints were too long and needlessly complicated. McKesson also contended that the plaintiffs lumped it in with its claims against Merck.
According to McKesson, the cases are “product liability cases with bolted-on fraud claims.” But the company contended that the fraud claims against have so far “not fared well.” According to the motion to dismiss, before the MDL was created, judges in Pennsylvania, New York and Florida dismissed similar fraud claims for being too vague.
“Multiple federal judges have advised plaintiffs and their attorneys deficiencies in their Zostavax form complaints, and plaintiffs have had ample opportunity to correct those deficiencies through pleading amendments,” McKesson said. “Having failed to heed the federal courts’ instructions, plaintiffs’ complaints should be dismissed, and their fraud claims should be dismissed with prejudice.”
Gordon Kessler of Marc J. Bern & Partners in New York, who is representing plaintiffs, did not return a call for comment. McKesson’s attorney, New York-based Thomas Kurland of Patterson Belknap Webb & Tyler, also did not return a call for comment.