Merck & Co.’s once-dominant Zostavax hasn’t been a money-maker in the U.S. since late 2020, but the shingles vaccine continues to prove a legal thorn in drugmaker’s side.
Amid Merck's long-running defense of the vaccine, the company scored a win this week as a U.S. District Judge in Ohio granted Merck's bid to toss claims it waged a “false and misleading” marketing campaign for Zostavax, which hasn’t been sold in the U.S. since Nov. 2020. The dismissal hinged in part on a technicality, and Merck is still staring down more than 2,000 cases alleging Zostavax either caused shingles or resulted in other illnesses or side effects.
According to plaintiff Rebecca Gentile’s complaint, Merck started an “aggressive” advertising push for Zostavax following the vaccine's 2006 approval. The campaign contained “demonstrably false” claims about the shot, the complaint said.
Through an alchemy of TV spots, print ads, pharmacy signage, literature and online information, Merck claimed Zostavax was effective at long-term shingles prevention, according to the lawsuit. The drugmaker also touted a 51% efficacy rate for the shot, despite its success apparently dropping in older patients, the plaintiff said.
Back in 2019, Gentile filed a complaint saying Merck’s Zostavax marketing violated the Ohio Consumer Sales Practices Act (OCSPA) and the Ohio Deceptive Trade Practices Act (ODTPA). She also accused the drugmaker of constructive fraud, negligent misrepresentation and breach of contract.
Merck responded that the plaintiff’s OCSPA claim failed on multiple counts: First, vaccines aren’t consumer goods, so there was no “consumer transaction," Merck said. Meanwhile, the plaintiff failed to claim “actual damages," as well, the company argued.
In the end, U.S. District Judge James Graham ruled that the plaintiff does not technically qualify as a consumer under Ohio law since the shot wasn’t bought directly from Merck. Therefore, she can't file a consumer sales practice claim.
As for the thousands of Zostavax cases remaining, Merck’s multi-district litigation has been split into two groups. Group A includes more than 1,700 actions alleging Zostavax caused patients’ shingles. Another 500 or so cases in group B contend Zostavax caused various illnesses other than shingles.
Meanwhile, Merck scored a significant win last summer when a Pennsylvania judge scrapped a plaintiff’s claims that the Zostavax shot he received in 2008 caused him to develop shingles eight years later. Plaintiff John Destefano never designated an expert to testify on his behalf, though he had been required to provide an expert report to Merck by March 19 of last year.