Zostavax Lawsuit Dismissed on Statute of Limitations Grounds, But Other Shingles Vaccine Claims Moving Forward

Published on May 3, 2017 by Sandy Liebhard

A federal judge in Pennsylvania has dismissed the first personal injury lawsuit filed over the Zostavax shingles vaccine, after determining that the claim was time barred. However, the decision is specific to this single case and won’t affect at least 10 other Zostavax lawsuits currently pending in the U.S. District Court, Eastern District of Pennsylvania.

Merck & Co. Sought Summary Judgment

The case in question was filed on April 5, 2016 on behalf of Chris Juday, who received the Zostavax vaccine on March 2, 2014. According to his complaint, exposure to Zostavax allegedly caused Juday to develop chickenpox on his lungs. Attorneys representing Merck & Co. filed a Motion for Summary Judgment in February, asserting that the 2-year statute of limitations governing the case had expired.

According to The Legal Intelligencer, Juday argued that the discovery rule should have allowed his claims to proceed. But in an Order for Summary Judgment issued on April 17^th, the Court pointed to communications between Juday and his employer that cited Zostavax as the reason behind his absence from work.

Juday had also asserted that his claims of fraudulent concealment should have allowed his lawsuit to go forward. But the Court found that there was insufficient evidence to support those arguments. The Court also rejected as hearsay deposition testimony from Juday’s wife, who claimed that a nurse practitioner had told her that a Merck official said no one at the company had ever seen a case of Zostavax-related chickenpox.

An attorney representing Zostavax plaintiffs emphasized to The Legal Intelligencer that this decision only affects Juday’s lawsuit. In fact, more Zostavax lawsuit filings are expected in the near future.

Zostavax Side Effects

Zostavax is the only shingles vaccine approved for use in the U.S. It contains a weakened version of the varicella zoster virus, the same virus that causes chickenpox.  The U.S. Food & Drug Administration (FDA) first approved Zostavax in 2006 for individuals 60 and older. In 2011, the agency expanded its approved use to patients from 50 through 59 years of age. While the U.S. Centers for Disease Control recommends that most seniors over the age of 60 receive Zostavax, it has been shown to reduce the risk of shingles by just 51%.

The vaccine’s label was updated in August 2014 to note that the Zostavax might actually cause shingles. In February 2016, the  label was modified yet again to note reports of “Eye Disorders: necrotizing retinitis (patients on immunosuppressive therapy).”  The FDA has also logged hundreds of adverse events reports involving shingles vaccines.