govinfo:USCOURTS-paed-2_19-cv-20202-1

IN THE UNITED STATES DISTRICT COURT 
FOR THE EASTERN DISTRICT OF PENNSYLVANIA 
 
 
IN RE: ZOSTAVAX 
(ZOSTER VACCINE LIVE) 
PRODUCTS LIABILITY LITIGATION 
 
THIS DOCUMENT RELATES TO 
294 CASES IDENTIFIED IN 
APPENDIX A and Hartung v. 
Merck & Co., Inc., Civ. A. No. 
19-20202 
 
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MDL NO. 2848 
 
CIVIL ACTION 
NO. 18-md-2848 
 
MEMORANDUM 
Bartle, J. April 8, 2026 
 Before the court is the motion of defendants Merck & 
Co., Inc. and Merck Sharp & Dohme LLC (“Merck”) pursuant to Rule 
41(b) of the Federal Rules of Civil Procedure to dismiss with 
prejudice for lack of prosecution 295 cases in this Zostavax 
Products Liability Litigation, MDL 2848, based on the failure to 
comply with the deadlines set forth in Pretrial Order (“PTO”) 
526. In addition, co-defendant McKesson Corporation has filed a 
motion to dismiss with prejudice Hartung v. Merck & Co., Inc., 
Civ. A. No. 19-20202 (E.D. Pa. May 29, 2019), for the same 
reasons as Merck advances to dismiss it. PTO 526 applies to all 
plaintiffs who had not executed a timely release or filed a 
 

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stipulation of dismissal with prejudice pursuant to a master 
settlement agreement.1 
 This multi-district litigation involving Merck’s 
vaccine for shingles was so designated on August 2, 2018. At 
one point, there were over two thousand actions consolidated 
before the court for pretrial purposes. At no time has a 
plaintiff successfully presented expert testimony to support his 
or her claim that Merck’s shingles vaccine specifically caused 
injury. See e.g., In re Zostavax (Zoster Vaccine Live) Prods. 
Liab. Litig., No. 18-MD-2848, 2023 WL 8258533, at *1 (E.D. Pa. 
Nov. 29, 2023); In re Zostavax (Zoster Vaccine Live) Prods. 
Liab. Litig., 2023 WL 6626581, at *6 (E.D. Pa. Oct. 11, 2023); 
In re Zostavax (Zoster Vaccine Live) Prods. Liab. Litig., 2023 
WL 6465837, at *7 (E.D. Pa. Oct. 4, 2023); In re Zostavax 
(Zoster Vaccine Live) Prods. Liab. Litig., 579 F. Supp. 3d 675, 
685 (E.D. Pa. 2021). In addition, the court dismissed 1,189 
cases in 2022 because of the inability of these plaintiffs to 
come forward with prima facie evidence that Zostavax caused 
their shingles or shingles related injuries. In re Zostavax 
(Zoster Vaccine Live) Prods. Liab. Litig., 711 F. Supp. 3d 317, 
 
1 Merck’s motion originally sought the dismissal of 297 
cases. Since the filing of the motion, the court has been 
advised that the parties in two of these cases have settled. 
See Grotenhuis v. Merck & Co., Inc., Civ. A. No. 22-754 (E.D. 
Pa. Mar. 1, 2022); Sabalausky v. Merck & Co., Inc., Civ. A. No. 
24-489 (E.D. Pa. Feb. 1, 2024). 

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323 (E.D. Pa. 2022), aff'd, No. 23-1032, 2024 WL 3423709 (3d 
Cir. July 16, 2024). 
 In 2025, a master settlement agreement was reached. 
Pursuant to PTO 524, entered May 8, 2025, the plaintiffs who did 
not timely execute a release or provide a stipulation of 
dismissal were required to produce by November 23, 2025 certain 
discovery, including pharmacy and medical records and expert 
reports.
2 PTO 526, signed on November 6, 2025, extended the 
deadline to February 9, 2026.3 Both PTO 524 and PTO 526 provided 
that those actions would be subject to dismissal with prejudice 
on the motion of Merck if the requisite discovery had not been 
timely produced. 
 According to Merck, as of February 9, none of the 
plaintiffs in these 295 cases had come forward with even a 
modicum of discovery. On February 24, 2026, Merck filed its 
motion to dismiss. The 14-day period to oppose the motion has 
now passed with only one response. It was filed by counsel on 
behalf of 47 of his clients. He stated: 
Counsel for the remaining 47 Plaintiffs had 
repeatedly communicated the need for 
 
2 PTO 524 had various deadlines specified in number of days 
after the execution of the master settlement agreement and does 
not use specific dates. The November 23, 2025 deadline resulted 
from adding up the specific number of dates from June 26, 2025, 
the day after the master settlement agreement was executed. 
3 The deadline was March 11, 2026 for plaintiffs for whom new 
counsel had timely entered an appearance. No new counsel 
appeared. 

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Plaintiffs to comply with PTO 526, including 
the need to supply all fundamental fact 
discovery, expert reports on general and 
specific causation, and the affidavits 
required by the Court’s Order. Counsel has 
no indication that any of the 47 Plaintiffs 
identified by Merck can or intend to comply 
with PTO 526. 
 
In lieu of dismissal, counsel requests additional time not only 
for further communication with the 47 plaintiffs but also an 
extension for their compliance with PTO 526. 
 Our Court of Appeals has instructed district courts to 
consider the various factors outlined in Poulis v. State Farm 
Fire & Cas. Co., 747 F.2d 863 (3d Cir. 1984), before dismissing 
an action for failure to meet court appointed deadlines and 
other procedural requests. The court must determine if the 
failure to comply in these 295 cases is the personal 
responsibility of the plaintiffs. While the court has no 
specific knowledge in this regard, it appears that in many cases 
the fault is that of the plaintiffs themselves who have not 
cooperated with their counsel to provide the fact discovery.
4 In 
any event, there is prejudice to Merck in both time and expense 
to allow these cases to drag on any further regardless of 
whether the responsibility lies with the plaintiffs or their 
counsel. This MDL is now in its eighth year, and the time has 
 
4 The court has granted the unopposed motions of plaintiffs’ 
counsel to withdraw in 104 of these cases. 

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arrived to enforce discovery deadlines. Plaintiffs have had 
over eight months’ notice under PTO 524 and the extension 
granted in PTO 526 to say nothing about numerous earlier 
deadlines. Both orders made clear that dismissal would be the 
consequence for failing to comply. No further delay can be 
tolerated in the interest of justice whether or not any counsel 
acted willfully or in bad faith. 
 Significantly, there does not appear to be any merit 
to these 295 cases for otherwise the plaintiffs and their 
counsel would have had an appetite currently lacking to move 
forward. Only one counsel for 47 plaintiffs out of 295 actions 
has filed a response to the pending motion, and he simply seeks 
more time to urge his clients to produce the required discovery. 
It speaks volumes that these clients have been unresponsive to 
his communications. Counsel is silent about the merits. 
 The court rejects the request of counsel for the 47 
plaintiffs for more time. There is no appropriate alternative 
sanction available other than the dismissal with prejudice of 
all of these actions. 
 Under Poulis, dismissal is warranted. Accordingly, 
the court will grant the motion of Merck to dismiss these 295 
actions with prejudice for failure to comply with PTO 526. 
 

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