Defendant in Shingles Vaccine Lawsuit Wants Case Removed to Federal Court

April 7, 2017, 8:00PM. By Gordon Gibb

Philadelphia, PAA shingles vaccine lawsuit that was originally filed in state court in Philadelphia this past February may wind up in federal court if the defendant in the matter, Merck & Co., has its way.

Plaintiff Jorga Bentley filed her Zostavax side effects lawsuit in the Philadelphia Court of Common Pleas. There are five other Zostavax plaintiffs with cases pending in federal court, and Merck is of the view federal court is where Bentley’s Zostavax adverse events lawsuit belongs as well.

However Merck accuses Bentley and her attorneys of attempting to manufacture jurisdiction in state court in order to pave the way for what could be the next major mass tort program in Philadelphia. To that end, Merck holds that a defendant – a resident of the state – was brought into the lawsuit to support state jurisdiction. In Merck’s view, the defendant was brought in under fraudulent pretense.

Bentley, in her Zostavax shingles vaccine lawsuit, alleges the vaccine triggered elevated blood pressure, headaches and an eye injury. Other plaintiffs have reported similar symptoms, together with other Zostavax adverse events such as seizures, liver failure, outbreaks of chicken pox and other infections, and even death.

In filing her shingles vaccine lawsuit, Bentley named Ann Redfield, an employee of Merck who is also a citizen of the state of Pennsylvania (Merck itself has its headquarters in Kenilworth, New Jersey). Bentley alleges that Redfield and others employed by Merck & Co. “intentionally, willfully, and knowingly, fraudulently misrepresented” the safety of Zostavax. Redfield is accused of authoring documents and reports about Zostavax, and is also alleged to have undertaken presentations to the Merck sales force as part of Merck’s vaccine team.

There’s a lot at stake. The Centers for Disease Control and Prevention (CDC) in Atlanta recommends that most Americans over the age of 60 receive the vaccine. Given the aging Baby Boomer wave, that’s a significant cross section of the US population. What’s more, Merck’s Zostavax is the only shingles vaccine approved by the US Food and Drug Administration (FDA) for use in the US.

In 2016, Merck is reported to have generated $749 million in revenue from Zostavax alone.

Merck, in filing its petition to have the shingles vaccine lawsuit removed to federal court from state court, suggested that Redfield’s only role in relation to the vaccine program was to assist medical staff in evaluation of reactions. To that end, there was insufficient cause to bring Redfield into the lawsuit, according to Merck.

“All that the plaintiff musters to support her claim against Ms. Redfield is the allegation that Ms. Redfield fraudulently misrepresented safety information concerning Zostavax in unidentified communications to unidentified sales representatives under unidentified circumstances,” the brief said. “Plaintiff’s shortcoming is not surprising given that Ms. Redfield’s interactions with health care providers and consumers are generally limited to gather information about reactions after vaccination has occurred.”

Merck noted that Redfield had never been formally served with a complaint.

Merck would like to avoid what has been variously described as a mass tort with a potential for ‘thousands’ of cases. Zostavax is a more potent variation of Merck’s Varivax, a vaccine for chicken pox. While Zostavax is designed to prevent shingles by introducing live varicella zoster virus to an individual’s immune system (the virus that causes chicken pox and shingles), many plaintiffs have reported they have been afflicted with shingles from the Zostavax vaccine itself.

Reports to the FDA’s Adverse Events Reporting System (AERS) in recent years prompted the FDA to mandate a warning added to the Zostavax label that Zostavax had the potential of actually causing shingles. The warnings are also reported to include risk for eye injuries and infections.

The Zostavax side effects lawsuit is Jorja Bentley v. Merck & Co., Inc. et al., Case No. 161004102 in the Philadelphia Court of Common Pleas. Merck has filed a petition to have the lawsuit removed to US District Court for the Eastern District of Pennsylvania.