In March 2022, the In re Zostavax MDL court entered a Lone Pine order requiring plaintiffs who claimed to have developed shingles as a result of using the Zostavax vaccine to produce certain test results supporting causation. In December 2022, the court dismissed 1,189 cases for failure to comply with that Lone Pine order. We posted about the Lone Pine order in April 2022 and the dismissal order in December of the same year. Now, on appeal, the Third Circuit has affirmed both the Lone Pine order and the dismissal. In re: Zostavax (Zoster Vaccine Live) Prods. Liab. Litig., 2024 WL 3423709 (3d Cir. July 16, 2024).
Zostavax is a vaccine meant to prevent shingles, a viral infection caused by the varicella-zoster virus (VZV). The vaccine introduces a weakened strain of VZV, triggering an immune response that primes the recipient’s immune system against non-vaccine sources of VZV (i.e., “wild-type strains”). VZV is responsible for both shingles and chickenpox, and it remains in the body for life. As a result, everyone who had chickenpox as a child faces a risk of the virus reactivating and causing shingles in adulthood. A laboratory test (called a “PCR test”) can reliably distinguish between the strain of VZV used in Zostavax and the wild-type strain one would find due to chickenpox infection.
Over half of the plaintiffs in the Zostavax MDL — the “Group A cases” — claimed that the vaccine caused them to develop shingles. But as the MDL court noted, these plaintiffs had to “rule out the obvious alternative cause that the wild-type virus reactivated.” To address this inherent causation issue, the MDL court entered a Lone Pine order requiring the Group A plaintiffs to provide evidence showing their shingles infections were not the result of the wild-type strain (i.e., PCR test results). When those plaintiffs failed to meet the court’s call, the MDL court dismissed 1,189 Group A cases with prejudice under Federal Rule of Civil Procedure 41(b).
On appeal, the Group A plaintiffs argued that entry of the Lone Pine order and the subsequent dismissals with prejudice of cases that failed to comply amounted to abuses of the MDL court’s discretion under the applicable standard of review. The Third Circuit disagreed and affirmed both orders.
Concerning the Lone Pine order, the plaintiffs argued that the order erroneously assumed that PCR testing is the only means of establishing specific causation in the Group A cases. But as the Third Circuit noted, the order was not based on an “assumption” but reflected the plaintiffs’ years-long failure to provide any evidence to the contrary: “[E]ven after three years of litigation, plaintiffs had not drummed up a single piece of medical literature or expert medical opinion explaining how it can be determined that Zostavax and not chickenpox caused a person to contract shingles other than through PCR testing.” The Third Circuit likewise rejected the plaintiffs’ argument that the Lone Pine order required the production of evidence that “never existed” and that “was incapable of being created after-the fact.” Because the express goal of a Lone Pine order is to “winnow non-compliant cases from an MDL” and MDL courts need “broad discretion” to enter orders that “drive disposition on the merits,” a Lone Pine order need not be limited to requiring production of evidence that already exists or can be created. One could add that a plaintiff’s need to establish a prima facie case is neither excused nor relaxed simply because sufficient evidence does not exist and cannot be created.
Concerning the Rule 41(b) dismissal with prejudice, the plaintiffs argued that they were denied their rightful opportunity to work up and present the Group A cases on summary judgment. But the Third Circuit noted that the Group A plaintiffs (1) were twice placed on notice that non-compliance with the Lone Pine order could result in dismissal of their cases and (2) were twice afforded opportunities to explain their position. Despite these opportunities, the Group A plaintiffs failed to explain how they could prove specific causation without the PCR tests required by the Lone Pine order. The Group A cases were “at a standstill” for over a year without any indication that their cases could succeed on the merits. As a result, the Third Circuit held that it would be “pointless” and prejudicial for these meritless Group A cases to proceed to summary judgment. Dismissal of the Group A cases under Rule 41(b) was thus the appropriate and effective sanction for the plaintiffs’ noncompliance with the Lone Pine order.
The Third Circuit’s decision once again highlights the propriety of Lone Pine orders as a case management tool to cull meritless cases from an MDL. A plaintiff who lacks evidence to establish a prima facie case should not be allowed to linger in an MDL, regardless of whether the missing evidence pertains to product usage, causation, or any other element of a plaintiff’s claim.
