A federal judge has denied a motion by Merck & Co. Inc. to dismiss a design defect claim against its Zostavax vaccine, finding that the claim was not preempted by federal law under Wyeth v. Levine, 555 U.S. 555 (2009), or its predecessors.
Plaintiffs claims that the safer design of Zostavax should not have included a live-attenuated virus and Merck argues that the science did not exist to do so at the time Zostavax was approved by the FDA. Judge Harvey Bartle of the Eastern District of Pennsylvania ruled that the jury should decide the issue at the time of trial.
Merck’s Zostavax vaccine was approved by the FDA in 2006 and is no longer being sold in the United States. It was administered in a single dose to people aged 50 years old and older.
Our founder Mark Sadaka is co-lead counsel for the Zostavax MDL.