Earlier this 12 months we blogged concerning the Lone Pine order entered within the Zostavax MDL that required these plaintiffs alleging that the anti-shingles vaccine triggered them to get shingles (1,189 of them) to provide proof of particular causation by way of a PCR check. The aim of the Lone Pine order was to winnow out non-meritorious claims. That was Half 1. Defendant’s movement to dismiss all 1,189 plaintiffs as a result of not a single one produced the required check outcome and even requested for an extension – that was Half 2. With out proof of particular causation, the court docket dismissed about half the circumstances within the MDL.
Shingles are brought on by the identical virus that additionally causes rooster pox, though the grownup illness shingles is rather more harmful. The virus stays within the physique for all times and may both lie dormant or reactivate and trigger shingles. Nearly everybody over the age of 30 in america has had rooster pox and due to this fact carries the “wild-type virus” of their techniques. In re Zostavax Merchandise Legal responsibility Litigation, 2022 WL 17477553, *2 (E.D. Pa. Dec. 6, 2022). The vaccine consists of the Oka pressure of the virus, a live-attenuated virus that may be a weakened type of the wild-type. Defendant offered “uncontradicted medical authority” that the one technique to know whether or not an individual’s shingles was brought on by the wild-type virus or the Oka pressure is thru a PCR check. In reality, plaintiffs’ personal professional testified that particular causation may solely be decided with a PCR check. Id. That’s the identical professional who didn’t carry out a differential prognosis ruling out the wild-type virus in 5 bellwether circumstances that had been due to this fact dismissed on abstract judgment. That’s what led to the entry of the Lone Pine order. If not one of the bellwether plaintiffs had enough causation proof, the court docket wished to know which plaintiffs did.
Because it seems, none did. That’s doubtless as a result of a PCR check can solely be administered on the time the an infection is energetic. So, if plaintiffs didn’t have the check finished on the time, which they’d no motive to do, they can not meet their burden of proof on particular causation. That didn’t cease plaintiffs from opposing the motions to dismiss. However at finest the opposition made a whole lot of guarantees and no deliveries.
Plaintiffs supplied no professional testimony or revealed literature that concluded the reason for the vaccine may very well be decided by a method aside from the PCR check. Id. at *3. Due to this fact, and not using a PCR check, “causation in any case is mere hypothesis.” Id. Plaintiffs acknowledged of their briefing that they “can show particular causation of their particular person circumstances with out PCR testing,” and referred the court docket to their Appendix. With such a definitive pronouncement,
The court docket eagerly turned to the Appendix to see what plaintiffs’ beforehand undisclosed proof of particular causation may be.
Id. Solely to be sorely disillusioned. First, the Appendix argued that plaintiffs’ consultants would assist that besides in uncommon circumstances, each case of post-vaccine shingles is brought on by or contributed to by the vaccine. However they by no means recognized the consultants, cited to any professional report, or defined away the opposite professional testimony. Id. Subsequent, the Appendix appears in charge the weakened immune techniques of older sufferers, however doesn’t clarify what that has to do with distinguishing between the strains of the virus for causation. Id. at *4.
Subsequent the Appendix refers to some thriller proof that plaintiffs would reveal on the “applicable time” and that was supplied already to the court docket in litigation pending in New Jersey. However as soon as once more the court docket was let down:
The court docket regarded ahead to plaintiffs’ revealing what this extra assist may be. Once more, the plaintiffs by no means disclosed what was behind the scenes. As well as, plaintiffs ignore the opposite testimony of [their expert] which can be earlier than the New Jersey court docket. It’s puzzling that it’s the “applicable time” for plaintiffs to share their allegedly essential and supportive proof with [the New Jersey court] however not with this court docket, significantly if plaintiffs actually assume that this proof may defeat [defendant’s] pending movement to dismiss 1,189 circumstances on this MDL. The court docket can solely conclude that there isn’t any such proof.
Id. Lastly, plaintiffs’ Appendix acknowledged that there’s a 15% to 100% likelihood that their shingles contained each strains of the virus. So what. That claims nothing about particular causation in any particular person plaintiff. “These circumstances won’t be selected common possibilities.” Id. Plaintiffs give attention to common causation “misses the mark.” “Normal causation by itself . . . won’t ever be sufficient for plaintiffs to prevail.” Id.
The Lone Pine order was not entered on this litigation till after 4 years of discovery together with defendant producing 6 million pages of paperwork and over 40 witnesses for deposition. A waste of money and time for a litigation the place no plaintiff can show particular causation. Nevertheless it did assist the court docket’s ruling that the Lone Pine order was justified as a result of there had been greater than enough time for plaintiffs to provide particular causation proof. “If plaintiffs had prima facie proof of particular causation, frequent sense dictates that it could have surfaced by now.” Id. at *5. And dismissal was justified as a result of plaintiffs insisted they’d the professional proof required to find out particular causation, however had “not divulged any of this proof to the court docket and know undisputed proof exists on the contrary. This isn’t good religion.” Id.
The one claims left allege that Zostavax triggered a hodge-podge of different accidents. However its protected to say the nucleus of this MDL just about self-destructed.
