When we last visited the Zostavax MDL last December, over a thousand plaintiffs, all claiming shingles as an injury, had been dismissed because none of them could produce results from the only medical test that could establish causation. We ended that post with:
The only claims left allege that Zostavax caused a hodge-podge of other injuries. But it’s safe to say the nucleus of this MDL pretty much self-destructed.
Today we discuss the first Zostavax decision dealing with the remaining flotsam and jetsam. Writing that sentence led us to learn something new – which we are duly imparting to our readers. There is a difference between “flotsam” and “jetsam.” According to the National Oceanic & Atmospheric Administration:
Flotsam and jetsam are terms that describe two types of marine debris associated with vessels. Flotsam is defined as debris in the water that was not deliberately thrown overboard, often as a result from a shipwreck or accident. Jetsam describes debris that was deliberately thrown overboard by a crew of a ship in distress, most often to lighten the ship’s load. The word flotsam derives from the French word floter, to float. Jetsam is a shortened word for jettison.
Under maritime law the distinction is important. Flotsam may be claimed by the original owner, whereas jetsam may be claimed as property of whoever discovers it. If the jetsam is valuable, the discoverer may collect proceeds received though the sale of the salvaged objects.
Returning from our maritime frolic and detour, today’s case, In re Zostavax (Zoster Vaccine Live) Products Liability Litigation, 2023 WL 2562981 (E.D. Pa. March 16, 2023), dismissed one of the remaining miscellaneous claims – that Zostavax purportedly caused this plaintiff’s “peripheral neuropathy” on causation grounds under the learned intermediary rule.
Plaintiff was vaccinated in California, id. at *1, and California adheres to the learned intermediary rule. Id. at *2. The physician who prescribed and administered the vaccine refused to go along with plaintiff’s counsel’s absurdly overbroad “want to know” questioning during her deposition:
Q. How about this, I’ll summarize it. So whenever you are prescribing a medication including Zostavax, would you want to know about all the potential side effects that could occur?
A. No, I just want to know about most common ones.
Q. The most common ones?
Q. Okay. And so you would agree that if there is a — if there are potential side effects that are common out there, you would want to see that in the label?
A. If they are common, yes.
Id. at *1. Surprise, surprise – doctors who routinely vaccinate patients tend to believe in vaccination.
This testimony raised the flotsam and jetsam issue. There was no evidence anywhere that peripheral neuropathy (which itself is a constellation of dozens of different conditions with similar symptoms) was a “common” adverse reaction to Zostavax.
[Plaintiff’s prescriber] testified that she would “want to know” about the risks of “common” side effects when considering whether to prescribe a medication such as Zostavax. This testimony falls short. There is no evidence that peripheral neuropathy is a “common” side effect of Zostavax.
Id. at *2. Plaintiff’s expert said “nothing about the incidence of peripheral neuropathy as a side effect of Zostavax.” Id. at *2 n.1.
Nor could a possible relaxation of California learned intermediary causation standards help this plaintiff. In two depositions plaintiff’s prescriber “never said that knowledge of such a risk would have changed her decision to prescribe it.” Id. at *2. Nor was the prescriber asked any informed consent questions. “It is speculation that [the prescriber] would have relayed additional risk warnings, even about ‘common’ side effects.” Id.
Thus, the defendant won summary judgment. This not being a shingles case (and it being California law), plaintiff had no claim for design defect.
Undoubtedly, the dénouement of the Zostavax MDL will produce more learned intermediary rule-based decisions. But we would not be surprised to see some case-specific Rule 702 motions as well, since as this decision mentioned, “[t]he deadline for serving expert reports has passed,” id. at *2 n.1, and we well know from other MDLs how poor expert reports on specific causation can be in such litigation.