Earlier this year we blogged about the Lone Pine order entered in the Zostavax MDL that required those plaintiffs alleging that the anti-shingles vaccine caused them to get shingles (1,189 of them) to produce evidence of specific causation by means of a PCR test. The goal of the Lone Pine order was to winnow out non-meritorious claims. That was Part 1. Defendant’s motion to dismiss all 1,189 plaintiffs because not a single one produced the required test result or even asked for an extension – that was Part 2. Without evidence of specific causation, the court dismissed about half the cases in the MDL.
Shingles are caused by the same virus that also causes chicken pox, although the adult disease shingles is much more dangerous. The virus remains in the body for life and can either lie dormant or reactivate and cause shingles. Almost everyone over the age of 30 in the United States has had chicken pox and therefore carries the “wild-type virus” in their systems. In re Zostavax Products Liability Litigation, 2022 WL 17477553, *2 (E.D. Pa. Dec. 6, 2022). The vaccine consists of the Oka strain of the virus, a live-attenuated virus that is a weakened form of the wild-type. Defendant presented “uncontradicted medical authority” that the only way to know whether a person’s shingles was caused by the wild-type virus or the Oka strain is through a PCR test. In fact, plaintiffs’ own expert testified that specific causation could only be determined with a PCR test. Id. That is the same expert who failed to perform a differential diagnosis ruling out the wild-type virus in 5 bellwether cases that were therefore dismissed on summary judgment. That is what led to the entry of the Lone Pine order. If none of the bellwether plaintiffs had sufficient causation evidence, the court wanted to know which plaintiffs did.
As it turns out, none did. That is likely because a PCR test can only be administered at the time the infection is active. So, if plaintiffs did not have the test done at the time, which they had no reason to do, they cannot meet their burden of proof on specific causation. That did not stop plaintiffs from opposing the motions to dismiss. But at best the opposition made a lot of promises and no deliveries.
Plaintiffs offered no expert testimony or published literature that concluded the cause of the vaccine could be determined by a means other than the PCR test. Id. at *3. Therefore, without a PCR test, “causation in any case is mere speculation.” Id. Plaintiffs stated in their briefing that they “can prove specific causation in their individual cases without PCR testing,” and referred the court to their Appendix. With such a definitive pronouncement,
The court eagerly turned to the Appendix to see what plaintiffs’ previously undisclosed proof of specific causation might be.
Id. Only to be sorely disappointed. First, the Appendix argued that plaintiffs’ experts would support that except in rare circumstances, every case of post-vaccine shingles is caused by or contributed to by the vaccine. But they never identified the experts, cited to any expert report, or explained away the contrary expert testimony. Id. Next, the Appendix seems to blame the weakened immune systems of older patients, but does not explain what that has to do with distinguishing between the strains of the virus for causation. Id. at *4.
Next the Appendix refers to some mystery evidence that plaintiffs would reveal at the “appropriate time” and that was provided already to the court in litigation pending in New Jersey. But once again the court was let down:
The court looked forward to plaintiffs’ revealing what this additional support might be. Again, the plaintiffs never disclosed what was behind the curtain. In addition, plaintiffs ignore the contrary testimony of [their expert] which is also before the New Jersey court. It is puzzling that it is the “appropriate time” for plaintiffs to share their allegedly critical and supportive evidence with [the New Jersey court] but not with this court, particularly if plaintiffs really think that this evidence might defeat [defendant’s] pending motion to dismiss 1,189 cases in this MDL. The court can only conclude that there is no such evidence.
Id. Finally, plaintiffs’ Appendix stated that there is a 15% to 100% chance that their shingles contained both strains of the virus. So what. That says nothing about specific causation in any individual plaintiff. “These cases will not be decided on general probabilities.” Id. Plaintiffs focus on general causation “misses the mark.” “General causation by itself . . . will never be enough for plaintiffs to prevail.” Id.
The Lone Pine order was not entered in this litigation until after 4 years of discovery including defendant producing 6 million pages of documents and over 40 witnesses for deposition. A waste of time and money for a litigation where no plaintiff can prove specific causation. But it did help the court’s ruling that the Lone Pine order was justified because there had been more than sufficient time for plaintiffs to produce specific causation evidence. “If plaintiffs had prima facie proof of specific causation, common sense dictates that it would have surfaced by now.” Id. at *5. And dismissal was justified because plaintiffs insisted they had the expert evidence required to determine specific causation, but had “not divulged any of this evidence to the court and know undisputed evidence exists to the contrary. This is not good faith.” Id.
The only claims left allege that Zostavax caused a hodge-podge of other injuries. But its safe to say the nucleus of this MDL pretty much self-destructed.