The Third Circuit U.S. Court of Appeals dismissed approximately 1,200 lawsuits filed against Merck & Co. over its shingles vaccine, Zostavax. The Appellate Court upheld a U.S. District Court ruling that threw out the lawsuits for failing to abide by a court order requiring them to provide clinical test results.1
Zostavax, the first shingles vaccine on the market, was licensed in 2006 but was discontinued in the United States in 2020,2 while GlaxoSmithKline’s SHINGRIX was licensed in 2017 and is still in use in the U.S. today.3
The original Zostavax lawsuits were filed against the drug giant in 2020.4
District Court Requires Plaintiffs to Submit Threshold Evidence
The district court order issued by Judge Harvey Bartle in 2022 referred to as a Lone Pine order, required the plaintiffs to submit blood test results in the early stages of litigation as threshold evidence to prove their lawsuit had merit. The theory behind a Lone Pine order is that by requiring plaintiffs to submit certain threshold evidence, meritless cases will be dismissed early on in litigation.5 It is a method used in large tort cases, which forces the plaintiffs to show prima facie injury (a true or valid injury on its face6) and causation by a certain date or the case will be dismissed.7
District Court Sides with Merck, Throws Out Similar Cases
Prior to issuing the Lone Pine order, the same district court judge granted Merck summary judgment in five other similar cases.8 A summary judgment motion is brought when one party alleges that a trial is not necessary as the other side has no valid claims or defenses for the judge or jury to consider. The moving party argues that they are required a judgment as a matter of law due to there being “no genuine issues as to any material fact.”9
The motion for summary judgment was submitted by Merck when the bellwether plaintiffs failed to produce polymerase chain reaction (PCR) tests to show that they contracted shingles from the vaccine and not from past chicken pox infections. According to Judge Bartle, the PCR tests were necessary to prove specific causation and without it, the plaintiff’s expert witness was barred from testifying. In order to prevent a similar outcome in the almost 1,200 other lawsuits pending against Zostavax, the judge also ordered all other plaintiffs to submit PCR tests.10
When a person is infected with the varicella zoster (chickenpox) virus, it stays dormant in the body for years and be reactivated later in life causing a constellation of symptoms (painful blistering rash on the torso and sometimes the face) known as shingles (herpes zoster).11 Judge Bartle concluded that most people over the age of 30 have had the wild-type form of varicella-zoster from having chickenpox as a child.12
Judge Bartle said that Merck showed the court…
“uncontradicted medical authority” [that a the PCR test was] “the only way to tell whether the shingles was caused by the virus strain contained in Zostavax or by the wild-virus strain from chickenpox closeted in a person’s body.13
PCR Testing is Not Standard Treatment for Shingles
The issue with requiring PCR tests be submitted so long after the plaintiffs suffered from shingles, which they allege was caused by Zostavax, is that a PCR test can only be done when one is actively suffering from shingles. Requiring plaintiffs to perform the testing years after their shingles outbreak will not yield accurate results. It is not standard treatment to get a PCR test when suffering from shingles, so almost none of the plaintiffs had PCR tests available to meet Judge Bartle’s threshold requirement.14
Conceding that he had broad discretion as a trial judge overseeing thousands of lawsuits over multi-jurisdictions, the Third Circuit Court of Appeals found that Judge Bartle did not abuse his discretion when he ordered the plaintiff’s to meet the threshold requirement of providing PCR test results. The Appellate Court decided that the plaintiff’s had enough time to show how they would prove specific causation—that the vaccine gave them shingles—without PCR testing, but failed to do so.15
The Appellate Court stated:
To put it bluntly, if plaintiffs had a way to prove specific causation, ‘common sense dictates that it would have surfaced by now. We therefore conclude the district court did not abuse its discretion in dismissing the [cases] instead of allowing them to proceed to summary judgment.16
The court’s decision is unpublishable and may not be used as precedent in subsequent cases. According to plaintiff’s lawyer, Howard Bashman, this is a good thing as this case demonstrates how a Lone Pine order can deprive almost 1,200 plaintiffs of the procedural protections granted by the summary judgment process.
Bashman explained the court’s error was in requiring the plaintiffs to prove specific rather than general causation at this stage of litigation. Law professors, Nora Freeman Engstrom of Stanford Law School and Elizabeth Burch of the University of Georgia agreed with him, saying, “Numerous courts have recognized that Lone Pine orders can tempt courts to trammel on plaintiffs’ rights.”17
Bashman said:
We fundamentally disagree with the decision. [The ruling, would otherwise permit trial courts to use Lone Pine orders as] “an impermissible substitute for summary judgment without affording plaintiffs the protections of summary judgment.18
The plaintiffs have the option of appealing the decision to the U.S. Supreme Court.19
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Click here to view References:2 Rig Centers for Disease Control and Prevention Archive. What Everyone Should Know about Zostavax
3 National Vaccine Information Center. Shingles Diseases and Vaccine Information.
4 Frankel A. Merck shingles vaccine appeal will test controversial mass torts case management tool. Reuters Oct. 18, 2023.
5 Frankel A. Merck defeats appeal by nearly 1,200 shingles vaccine plaintiffs. Reuters July 17, 2024.
6 Merriam-Webster. Prima facie.
7 Stanford Law School. Lone Pine Orders.
8 Ibid.
9 Prevail Lawyers. A layman’s Guide to Summary Judgment. July 2, 2015.
10 Frankel A. Merck defeats appeal by nearly 1,200 shingles vaccine plaintiffs. Reuters July 17, 2024.
11 National Vaccine Information Center. Shingles Diseases and Vaccine Information.
12 Kansteiner F. Merck puts 1,000-plus Zostavax lawsuits to bed after plaintiffs file for dismissal. Fierce Pharma July 8, 2024.
13 Ibid.
14 Ibid.
15 Frankel A. Merck defeats appeal by nearly 1,200 shingles vaccine plaintiffs. Reuters July 17, 2024.
16 Ibid.
17 Ibid.
18 Ibid.
19 Kansteiner, F. Merck puts 1,000-plus Zostavax lawsuits to bed after plaintiffs file for dismissal. Fierce Pharma July 8, 2024.
8 Responses
Why is a PCR test even demanded as it was never intended to be used for any kind of diagnosis–this from the Nobel Prize winner who invented this test. Why wasn’t this mentioned!
The PCR procedure is NOT a diagnostic test method. To have any hope of making PCR sensitive to and specific to unique components of a virus you would first have to isolate it. In other words separate it out for chemical analysis. This has never been done for any “virus”. You would need expert witnesses well versed in the myth of virology to provide the depth of testimony to successfully advance this case.
Exactly. Besides, a PCR can show infection just by increasing the counts. As Mullis said, you can find anything if you make the amplification high enough. The “experts” just make up the primers using software. No real virus ever found…just computer constructs– same as what they did with Covid.
This is a farce in its entirety. Vaccines in general are a farce and never stopped anyone from breaking out in rashes or becoming paralyzed. Quite the opposite. These jabs cause paralysis and other issues because there are NO viruses and everything that goes into one shot has zero merit, but much harm.
This is why I will not take the shingles injection. This vaccine and the flu vaccine have not been tested and I do not trust vaccines anymore. They lied about Covid. Now millions of people have died and have severe side effects
Yes, multiplier/copier PCR was misnomered as if a “test;” just as Fokker Fauci misused it, e.g., at the wrong speed, during his AIDS hoax and again for the CoVid (& bought the virus build from still-Commie Red China) hoax.
Kary Mullis won the Nobel for the PCR, and he openly fought Fauci AND said it was not a test to prove stuff. Peter Duesberg** explained it clearly, and was hounded–to cover up big-money bad-gov lies.
AND WHO WILL CHECK IF JUDGES HAVE BEEN BRIBED—IT WAS FUNDAMENTAL FOR MERCK, PFIZER, et al.—AND SHOULD BE CLOSELY REGARDED.
Recall, U.S.Dept of HHS (wealtH & inHuman Services)* gets nearly twice the taxpayer-funded Congressional appropriations, as the U.S. Dept. of Defense (DOD)—-even though there are few scientists or doctors in HHS, as there are fewer in CONgress. DOD has 3-to-4 million employees and vast gear expenses. HHS has less than 100,000? Do we even know?
_ * Health and Human Services has a dozen+ corrupted Agencies: CDC, FDA, NIAID, NIH, NIMH, CMS, et al.
_ ** What did Dueserg (a real scientist) discover, retrovirus? He wrote the 1996 book, “Inventing the AIDS Virus.” See also R.F. Kennedy Jr.’s modern books on Fauci.
More proof of how corrupt our courts/judicial system is. And a PCR test for this is bogus.
At this sad and infuriating point, how many of us don’t wonder if the judge was bribed? And 100 years of Pharma vax propaganda belief lays the foundation for judges, bureaucrats and pols to take bribes because they are socially shaped to believe taking the bribe promotes the common good.