Merck sign, Whitehouse Station, New Jersey
Credit: Carmen Natale Merck sign at Whitehouse Station, New Jersey

Merck is looking to move the only current lawsuit in Pennsylvania state court over its shingles vaccine to federal court, claiming a defendant was fraudulently brought into the case solely to give the state court jurisdiction.

The drugmaker notified the Philadelphia Court of Common Pleas on Wednesday that it has removed the case, captioned Bentley v. Merck, to the U.S. District Court for the Eastern District of Pennsylvania. Merck had filed its notice to the district court Monday.

The lawsuit is over the shingles vaccine Zostavax, and the plaintiff is alleging the drug caused elevated blood pressure, headaches and an eye injury. Although there are five similar cases in the federal district, Bentley is the only one pending in state court, and plaintiffs attorneys have said shingles vaccine litigation may lead to Philadelphia’s next mass tort program.

The lawsuit names as defendants New Jersey-based Merck and Ann Redfield, a Merck employee who is also a Pennsylvania citizen. The complaint alleges that Redfield and other employees “intentionally, willfully, and knowingly, fraudulently misrepresented” the safety of Zostavax when she authored documents related to the drug and gave presentations to the sales force as part of Merck’s vaccine team.

However, according to Merck’s notice of removal filed in federal court, Redfield’s job mostly entailed assisting the medical staff in evaluating reactions, and there was no basis for plaintiff Jorja Bentley to bring her into the lawsuit as a defendant.

“All that the plaintiff musters to support her claim against Ms. Redfield is the allegation that Ms. Redfield fraudulently misrepresented safety information concerning Zostavax in unidentified communications to unidentified sales representatives under unidentified circumstances,” the brief, filed by Fox Rothschild attorney Eileen Oakes Muskett, said. “Plaintiff’s shortcoming is not surprising given that Ms. Redfield’s interactions with health care providers and consumers are generally limited to gather information about reactions after vaccination has occurred.”

The notice further contended that Redfield was never served with the complaint, and that the attorneys pursuing Bentley’s claims dropped Redfield from a similar suit they filed over Zostavax in federal court.

“The fact that plaintiff’s counsel agreed to dismiss with prejudice in [the federal suit] the very same types of claims against Ms. Redfield that plaintiff is now asserting against her just a few months later reaffirms that plaintiff has fraudulently joined Ms. Redfield in this case,” the notice said.

The issue of fraudulent joinder is commonly litigated in products liability cases. The claim is that a plaintiff has allegedly sued a party that has no liability, in order to drive the case into state court.

The issue has recently come under scrutiny in some proposed federal tort reform legislation.

Unless Bentley’s case is remanded back to state court in Philadelphia, where it was filed late last month, the plaintiff’s attorneys may face a significant hurdle in establishing a mass tort program in state court over the Zostavax litigation.

Philadelphia attorney Marc J. Bern, who is handling Bentley’s case along with Joseph Cappelli, recently told The Legal that he has “thousands of potential clients” with similar claims over Zostavax, and he plans to eventually seek mass tort status in Philadelphia over the claims.

Although Bentley’s injury claims include headaches, dizziness and eye damage, other suits, including the five that have been filed in federal court, have claimed injuries such as seizures, severe outbreaks of chicken pox, liver failure and death.

Lopez McHugh attorney Michael Katz, who has filed the Zostavax suits in federal court, also recently told The Legal he is expecting to file more suits in federal court over the drug, and agreed that the litigation will likely end up consolidated into a mass litigation.

Although the National Childhood Vaccine Injury Act of 1986 often pre-empts vaccine-related litigation, the plaintiff’s complaints note that Zostavax is not a vaccine listed in that law’s vaccine injury table.

Cappelli and a spokeswoman for Merck did not return a call seeking comment.


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