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.