The spate of lawsuits continues against Merck & Co. related to its shingles vaccine called “Zostavax.” Zostavax was approved by the U.S. Food & Drug Administration (FDA) in May 2006 as a shingles vaccine and was specifically designed and marketed for use by patients over the age of 50. However, the complaints about Zostavax began almost immediately with thousands of reports that, after use of Zostavax, patients actually developed shingles and other serious complications.
Over 36 million patients have been injected with Zostavax since it was approved. Merck has earned on average $685 million a year on sales of the vaccine. However, it is unclear if the vaccine is actually effective. According to reports, in clinical trials, shingles occurred in 1.7 percent of Zostavax patients, vs. 3.3 percent of unvaccinated adults over 60. So, essentially Zostavax is effective about 50 percent of the time.
Further, although supposedly marketed and approved for patients over 50 years of age, the vaccine appears to be most dangerous for just those patients since older patients tend to have weaker immune systems than younger patients. Use of Zostavax has shown to cause complications in patients who have compromised immune systems.
In this article, we provide a discussion of some Zostavax litigation around the country. There are hundreds of cases. Procedurally, Merck is defending many cases on statute of limitations grounds — two years here in Georgia (and in many jurisdictions). In general, there are circumstances where a patient can extend the statute of limitations and some plaintiffs are having success in making those factual arguments. Merck is also defending the cases on all other legal grounds.
Survey of Cases and Consolidation In Pennsylvania Federal Court
Cases against Merck with respect to Zostavax date to at least 2011. The first case might be a case filed in federal court in New York by Elizabeth Ohuche in 2011. She claimed that in 2009, she was given the Zostavax vaccine by her doctor. She claimed that a few days after the injection, she developed severe headaches, a fever and, thereafter, developed excruciating pains followed by mumps, boils and eruptions all over her face followed by clustered and very painful rashes. (As an aside, these symptoms are consistent with Ohuche contracting shingles.) Plaintiff further claimed that, over the next couple of years, she lost partial sight in her right eye and that she continued to be “very ill and confined in bed.” See Ohuche v. Merck & Co., 903 F. Supp. 2d 143 (S.D.N.Y. 2012).
Ohuche filed suit against Merck without an attorney. As such, she had difficulty presenting the correct kind of evidence and presenting enough evidence to satisfy the federal court’s standards. Her case was eventually dismissed because her doctor testified that she knew the risks of receiving the vaccine. Consequently, the court held that she had a better case of medical malpractice against her physician than a case of product liability against Merck.
More recently, a case was filed against Merck in February 2017 in Philadelphia. In that case, the plaintiff, Jorja Bentley alleged claims similar to Ohuche. According to reports, within 24 hours of receiving the Zostavax vaccine, Bentley began experiencing headaches, dizziness, and blurred vision. She claims that she eventually suffered loss of vision — which continues — and from high blood pressure which she attributes to the injection of Zostavax. See Bentley v. Merck & Co., Inc., Case No. 161004102. Ms. Bentley’s case was eventually removed to federal court. See here.
As noted, Ms. Bentley’s case is just one of hundreds now pending across the country. Indeed, there are so many cases in federal court that Merck asked to have the cases consolidated into multi-district litigation. That was approved on August 2, 2018.
Bentley’s case was among those consolidated. In addition, the Order consolidated cases and transferred them to the Eastern District of Pennsylvania from district courts in Florida, Massachusetts, New Jersey, New York, Pennsylvania, and Wisconsin. There were 57 cases consolidated via the Order with another 41 pending cases likely to be added to the list from other federal district courts. In all cases, the various plaintiffs asserted that medical complications resulted shortly after they received the Zostavax vaccine. The various complications alleged include:
- Herpes encephalitis — brain damage
- Optical nerve damage — damage to the eyes
- Kidney damage
- Liver damage
- Bell’s palsy — damage to facial muscles causing half the face to appear to droop
- Guillain Barre Syndrome — a neurological disorder where the body’s immune system attacks the peripheral nervous system causing tingling and pain, and eventual paralysis
- Viral-related illnesses and injuries
The above list is not inclusive. The causes of action all involved claims with respect to insufficient warning of risks and known complications, improper design, inadequate testing, failures in the manufacturing and regulatory processes, improper and/or inadequate labeling and/or instructions and deceptive marketing.
To date, no cases have gone to trial.
Prescription Drug Liability Attorneys: Zostavax and the Statute of Limitations
As noted above, Merck is defending all of the cases and one main argument being used is the statute of limitations. In general, the law gives various persons who are injured only a limited amount of time to file their lawsuits. With products liability cases, the most common statute of limitations is two years. That is the statute in Georgia. As a consequence, if an injured person was injected with Zostavax more than two years ago, the person will have some difficulty with their lawsuit. This was the result in one recent case, for example. See Juday v. Merck & Co, Case No. 17-2081 (US 3rd Cir. April 4, 2018) (non-precedential). In that case, the plaintiff was injected in 2014, but did not file her lawsuit until 25 months later. The applicable statute of limitations was 24 months from the date of harm. The trial court dismissed the case because of the breach of the time limitation. The plaintiff had no evidence to suggest that he was entitled to more time. The plaintiff received his injection on March 2, 2014 and began suffering complications — coughs, bumps, and rashes — by March 13, 2014. The plaintiff called his employer on the 13th to say he was sick because of the vaccine injection. Taken as a whole, the court held the plaintiff to have known about the cause of his complications — the Zostavax injection — at least as late as March 13, 2014. The case was not filed until April 2016. The dismissal was affirmed by the Court of Appeals.
Defective Drugs Attorneys — Contact the Roger Ghai Law Offices
If you have been injured or have suffered complications from use of Zostavax, call the experienced personal injury attorneys at the Roger Ghai Law Offices. Call now because deadlines must be met. As we saw from Elizabeth Ohuche’s case, products liability cases are complex and you need proven and experienced attorneys to help you. We here at the Roger Ghai Law Offices have years of experience recovering compensation on behalf of clients who have been injured by a defective products and medications.