It has been almost exactly one year since we brought you Part 2 of this Lone Pine story; so, like the court in its most recent decision, we’ll give you a little refresher. The Zostavax MDL in its fifth year. Plaintiffs allege that defendants’ anti-shingles vaccine caused them various injuries including shingles, hearing loss, and assorted other injuries. A little over a year and a half ago, the court entered a Lone Pine order designed to winnow out non-meritorious claims alleging shingles as the injury. That was Part 1. Part 2 was when the court dismissed all 1,189 plaintiffs subject to Part 1 because none proffered the requisite causation evidence. That was about half the cases in the MDL. In the ensuing year, plaintiffs alleging other injuries have likewise demonstrated a complete failure to offer any admissible expert evidence to support their claims. And that brings us to Part 3.
As is the situation with most Lone Pine orders, this latest one was entered after the court’s “long-standing effort to bring [the other injury cases] to trial” failed. In re: Zostavax Products Liability Litigation, 2023 WL 8258533, *1 (E.D. Pa. Nov. 29, 2023). Ten cases alleging miscellaneous injuries were selected for trial by plaintiffs and defendants, and all were dismissed either because plaintiff conceded they could not get expert testimony or because the court excluded what expert evidence was offered. Id. Plaintiffs voluntarily dismissed 50 of 58 hearing loss cases and 5 more were dismissed for failure to prosecute or participate in discovery. Based on this history, the court granted defendants’ request for a Lone Pine order in the remaining other injury cases.
Pursuant to this order, plaintiffs will either dismiss their cases or submit a declaration by an expert stating that the expert has reviewed plaintiff’s medical records and is “prepared to testify to a reasonable degree of medical certainty that there is both general causation linking Zostavax to the type of injury or illness claims and also specific causation.” Id. at *2. A full expert report is not required at this time. It is clear the court’s patience is wearing thin. With half of the cases already found to lack merit and trials at a standstill due to the inadequacies of the selected bellwethers, “[i]t is time to weed out cases” that have no expert support. Id. Further, having an expert review the records and reach a conclusion as to causation, is something plaintiffs are already obligated to do as part of the pretrial proceedings. Id. Which to us begs the question, why isn’t this type of Lone Pine order entered in all MDLs and earlier in the lifecycle. What harm is there in making sure plaintiffs have done their requisite due diligence and, in the process, “weed out” the non-meritorious cases which often can be the bottleneck to settlements.
The only small downside to the Zostavax Lone Pine Part 3 is that the court gave the plaintiffs’ law firms with the largest inventories a break. They are each only required to secure the medical expert declaration for a portion of their cases at this time. Hopefully they see this for what it is, just a scheduling issue, not a pass on the other cases. In all, the order applies to about 40% of the other injury cases, for now.