Zostavax® "Lone Pine" Ruling To Be Argued October 31 On Appeal, In The Third Cir. -- Merck's Many Years Of Defense On The Line In 1,200 Vaccine Cases.

We talked at length about so-called Lone Pine orders in Merck's defense of the Fosamax^® cases, back in 2013.

And this is a topic now certainly ripe for appeals -- and eventually Supremes' -- consideration: in these vaccine cases, as about two years ago, a trial judge ruled that if some 1,200 vaccine injury claimants would not take a PCR test to show some genetic connection between their illnesses, and the shingles vaccine, he would dismiss their cases. And that is just what he did. [My backgrounder, here. We've been following this since. . . 2009.]

Several law professors (and the plaintiffs' lawyers, of course) have written that this amounts to a judge stepping over the transom (from arbiter, to advocate): the judge put himself in the role of demanding "new evidence" be created -- on pain of dismissal, as to these plaintiffs. All of this without a full trial to decide whether the PCR tests could plausibly rule out, or include, the vaccine as being cause/effect related to the complained-of illnesses. [Similar problems have been seen with Shingrix^®, from GSK -- but no Lone Pine order has ever been entered in any case involving GSK's vaccine.]

Here's Reuters on it all -- but more high stakes ahead for Merck, even with the highly favorable US vaccine shield laws in place, in its favor:

. . .“This case,” [plaintiffs' counsel] Bashman said in an email, “highlights how a Lone Pine order can be improperly used to deprive on a mass basis nearly 1,200 separate plaintiffs of the procedural protections that the summary judgment process affords.”

It’s one thing, Bashman said in the plaintiffs’ brief, for an MDL judge to grant summary judgment in masses of cases after determining that plaintiffs cannot prove general causation through their expert witnesses. The problem in the Zostavax case, he argued, is that Bartle was addressing specific causation, not general causation, and used the vehicle of dismissal for failure to comply with a Lone Pine order.

Two law professors who have written about MDL Lone Pine orders, Elizabeth Burch of the University of Georgia and Nora Freeman Engstrom of Stanford Law School, echoed Bashman’s assertion that Lone Pine dismissals may improperly disregard plaintiffs’ procedural protections. “Numerous courts have recognized that Lone Pine orders can tempt courts to trammel on plaintiffs' rights,” Engstrom said via email.

Burch called Lone Pine dismissals “deeply problematic” because they “often act as a poor-man’s substitute for summary judgment. . . .”

[And this may explain Merck dipping below $100 a share today, on the NYSE -- been a minute since MRK had a $90s handle.] We will keep a weather eye on this one, as well, as you might imagine. Off -- grinning, into a fine morning with Halloween in the air. . . .

नमस्ते