The Zostavax Lawsuits
Merck pharmaceuticals recently won a bellwether lawsuit involving one of their drugs, Zostavax, a shingles vaccine. Zostavax used to be the most common shingles vaccine prescribed by doctors, but recently, a better choice has become available. Additionally, Merck is facing nearly 2,000 lawsuits related to its vaccine.
The most recent lawsuit was dismissed on an important technicality. A plaintiff alleged that the Merck vaccine caused him to get shingles 8 years after he took it. However, the plaintiff was required to provide an expert witness willing to testify on his behalf. Having failed to provide this witness, or without even trying, the lawsuit was dismissed.
The main allegation against Merck and Zostavax is that the vaccine actually causes the disease it is supposed to prevent. While many lawsuits against Merck have been dismissed for one reason or another, nearly 1,800 remain to be tested in court. Plaintiffs allege that Merck either knew or should have known about the potential danger before making their product available in the stream of commerce.
Analyzing this lawsuit
The plaintiff whose case was dismissed got the vaccine in 2008. In 2016, he presented to a medical clinic with raised red bumps that the doctors diagnosed as shingles. According to the data, Zostavax is 64% effective for those aged 61 to 69. At the time, it was the recommended vaccine for the disease. Further, the data provided by Merck said that the efficacy four years after the shot was taken was “unknown” and the amount of time after which a booster was required was “undefined”.
In other words, it looks like Merck made no claims concerning whether or not the vaccine would still be effective 8 years after it was taken. Further, Merck says the efficacy rate is 64%—not 100%. Based on these findings, it seems unlikely that a jury would have ruled in the plaintiff’s favor. This is especially true considering that the plaintiff could not so much as find an expert witness to testify on his behalf.
Potential avenues for future success
With Merck hedging expectations as to the efficacy of the vaccine, there aren’t a lot of allegations that a plaintiff can make. One allegation that will likely survive summary dismissal is the question of what Merck knew and when. While the vaccine is alleged to cause shingles, there is certainly no evidence from the aforementioned lawsuit that the vaccine caused shingles at all, but failed to continue working after a specific period of time, which is not uncommon for a vaccine.
However, if Merck misrepresented the efficacy of their vaccine or knew it could cause shingles in certain patients, then those patients would be entitled to compensation.
Talk to a Miami Personal Injury Attorney Today
If you’ve been injured by a dangerous drug or product, call the Tampa personal injury attorneys at The Matassini Law Firm today to schedule a free consultation and learn more about how we can help.