The plaintiffs in ongoing litigation against Merck & Co. filed an opposition in response to Merck’s motion to dismiss on Tuesday in the Eastern District of Pennsylvania. The initial complaint accused Merck of being negligent in producing and marketing their ZOSTAVAX vaccine, which the plaintiff asserted led to both them and the class developing shingles and sustaining injuries.
Merck’s motion seeks for the court to hold that the only way for the plaintiffs to prove causation in this case is through the PCR testing of the alleged shingles injuries, rather than other testing and types of diagnoses. They contend that since no PCR tests were provided, there is no way to link their ZOSTAVAX vaccine with the development of shingles. Accordingly, they claim that the court should dismiss the suit in its entirety.
The plaintiffs claim that if the court were to grant the motion, they would effectively dismiss “more than 1,100 Shingles-injury cases on the sole basis that none of the doctors who treated these individuals’ Shingles rashes conducted an admittedly unhelpful PCR test to detect vaccine strain varicella-zoster virus.”
Since the plaintiffs did not use PCR tests, they explain they have not failed to provide the PCR tests since they never existed and “Merck has never publicly warned any healthcare provider of the need to test Shingles rashes after vaccination.” The opposition document also notes that Merck admitted in earlier motion that “PCR testing is not and cannot be conclusive” of what caused an individual’s Shingles outbreak.