Eastern District of Pennsylvania Issues Lone Pine Order in Zostavax MDL

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Multidistrict litigation is often criticized for enabling plaintiffs to file meritless cases and then hide in large inventories, hoping to be swept up in a settlement (whether global or otherwise) before the case is meaningfully probed through discovery.  Traditional tools such as plaintiff profile sheets and early screening orders represent a partial solution, as they can help identify cases with more obvious flaws such as those that are clearly time-barred or lack proof of product use.  But some issues, such as critical gaps in causation, are beyond the reach of the limited case-specific discovery permitted for most cases in an MDL.  Enter the Lone Pine order, a case management order by which a court requires all plaintiffs to produce evidence establishing specific elements of their claim.

As the court in the Zostavax MDL recently observed, a Lone Pine order can be “the only viable way” to achieve “the just and efficient conduct” of actions as required by the MDL statute, 28 U.S.C. § 1407.  In re: Zostavax (Zoster Vaccine Live) Prods. Liab. Litig., No. 18-md-2848, 2022 WL 952179 (E.D. Pa. Mar. 30, 2022).  Zostavax is a vaccine intended to prevent shingles, which is caused by the varicella-zoster virus (“VZV”).  Zostavax works by introducing a live-attenuated (i.e., weakened) strain of VZV against which the body can raise an immune response.  The MDL is split into two groups of plaintiffs, the first of which (Group A) consists of over 1,700 plaintiffs who allege that the vaccine caused them to develop shingles and the second of which (Group B) consists of approximately 500 plaintiffs who present different claims.

Group A recently ran into trouble when plaintiffs’ specific causation expert was excluded as to all five then-pending bellwether cases.  In re Zostavax (Zoster Vaccine Live) Prod. Liab. Litig., No. 18-MD-2848, 2021 WL 5631687 (E.D. Pa. Dec. 1, 2021).  The problem is that VZV is responsible not only for shingles, but also for chickenpox.  Anyone who had chickenpox as a child retains the natural “wild-type” VZV for life, and the retained wild-type virus can reactivate in adulthood and cause shingles.  Indeed, adults who develop shingles almost universally had chickenpox as children, as was the case for all five bellwether plaintiffs.  Because the plaintiffs’ causation expert failed to rule out reactivation of the retained wild-type VZV as the cause of any plaintiff’s shingles, he could not reliably opine that Zostavax was the cause.  His opinions were excluded, and the court accordingly entered summary judgment in defendants’ favor in all five bellwethers.

As it happens, there is a simple laboratory test that can reliably distinguish between the strain of VZV used in Zostavax and the wild-type strain one would find due to childhood chickenpox infection.  The defense, citing medical authority stating that this simple test is the only way to tell which strain caused a particular case of shingles, moved for a Lone Pine order.  The court granted the motion, observing that the plaintiffs had not identified any other way of ruling out latent wild-type VZV as the cause of shingles despite three years of extensive discovery.  Any plaintiff who could not produce a test result implicating the vaccine-strain VZV would face the same issues that doomed the Group A bellwether cases, and the “just and efficient conduct” of Group A actions required that the lack of this critical support be exposed sooner rather than later.  The court therefore held that “it is now time for plaintiffs to come forward with the Laboratory Reports or other documentation [Defendant] requests to enable the court to weed out non-meritorious from meritorious claims.”

When a plaintiff’s case is fatally flawed, there is nothing “just and efficient” about allowing it to linger through case-specific discovery.  By recognizing a previously unappreciated element of plaintiffs’ “prima facie support” for their claims and requiring plaintiffs to prove such support exists, the In re: Zostavax court is saving the parties considerable time and expense and is advancing the purposes of an MDL.  Lone Pine orders should be considered whenever meritless cases can be flushed from an MDL merely by requiring plaintiffs to produce critical evidence sooner rather than later.

About the Author: Eric M. Friedman

Eric Friedman guides clients through all stages of product liability litigation, particularly working with expert witnesses to present the science behind clients' products. By leaning on his pre-law history as a biochemist, he is able to identify key arguments for and against clients and craft winning strategies for both motion practice and trial.