Zostavax Lone Pine — The Appeal

We’ve been covering the Lone Pine Zostavax saga for a long time.  See Part 1, Part 2, and Part 3.  The story moved to the Third Circuit late last year and now we have its ruling.  The appellate court upheld the district court’s entry of a Lone Pine order and its subsequent dismissal of 1,189 plaintiffs who failed to comply with that order. 

Let’s start with a look back.  The Zostavax MDL, in which the majority of plaintiffs allege they contracted shingles after taking the shingles preventive vaccine, was created in 2018.  That’s pre-Covid, pre-Felicity Huffman college admission scandal, and before we lost Queen Elizabeth II and Ruth Bader Ginsburg.  In the ensuing 4 years, plaintiffs worked up five bellwether cases which were all dismissed for lack of expert evidence establishing case specific causation.  That’s because plaintiffs’ experts could not rule out that plaintiffs contracted shingles due to exposure to chickenpox as children.  Based on unrefuted evidence presented by the defendant, only a PCR test is determinative.  In re: Zostavax Products Liability Litigation, 2024 WL 3423709, *1 (3^rd Cir. Jul. 16, 2024). 

Therefore, based on that “compelling medical authority,” the court entered a Lone Pine order in March 2022.  That’s after Will Smith slapped Chris Rock but before Elon Musk bought Twitter.  Plaintiffs were given 90 days to produce PCR test results or their cases would be dismissed.  None did (note PCR tests have to be administered at the time the person is experiencing the rash).  Id. at *2.

So, defendant moved to dismiss those 1,189 plaintiffs and the court granted the motion in December 2022.  Right around the time Britney Griner was freed from a Russian prison but shortly before the US Air Force shot down a Chinese spy balloon off the cost of South Carolina.  Not only had plaintiffs failed to comply with the Lone Pine order, in opposing the dismissal plaintiffs failed to offer any prima facie evidence of specific causation. Id.

Plaintiffs appealed.  The appeal was argued approximately 9 months after the dismissal was entered.  Coincidentally the same 9 months Kevin McCarthy was speaker of the House.   Which brings us to today.  Given the events of the last couple of weeks, we’re not sure what the words are to describe the “now.”  Maybe we’ll come back and edit this post with a little perspective down the road.  For now anyway, we’ll turn to what the Third Circuit had to say. 

On appeal, plaintiffs argued that the district court erred in both entering the Lone Pine order and in dismissing their cases.  On Lone Pine, they argued the court was wrong to “assume” PCR testing is the only way to prove specific causation and wrong to require the production of “non-existent” evidence.  Id.  The district court did not make any “assumptions.”  Plaintiffs knew since the beginning of the litigation that there was an obvious alternative cause for their injuries—latent chickenpox. 

But even 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.

Id. at *3.  Therefore, the Third Circuit concluded that the Lone Pine order was based on “uncontradicted record evidence” that specific causation would require PCR testing.

As to plaintiffs’ “non-existent” evidence argument, the “express goal of a Lone Pine order is to winnow non-compliant cases from an MDL.”  Id. (citation omitted).  Meaning, the orders contemplate that at least some plaintiffs do not have and will not be able to get the requisite expert evidence.  Making Lone Pine orders valuable tools for managing MDLs.  Id.  The fact that no plaintiff would be able to meet this particular evidentiary hurdle, production of a PCR test result, does not make it an improper order.  As repeatedly pointed out by both the district and appellate courts, plaintiffs did not provide any other specific causation evidence or even a viable theory. 

Plaintiffs also made two arguments claiming the district court abused its discretion in dismissing their cases with prejudice.  First, plaintiffs argued they were denied their “rightful opportunity” to work up the cases through to summary judgment.  Id.  But that ignores that defendants filed a Rule 41(b) motion to dismiss and plaintiffs were given a “full and fair opportunity to be heard regarding [their] failure to comply with the court’s order.”  Id.  This was not a situation where plaintiffs were dismissed sua sponte for failing to produce PCR tests results.  Nor can plaintiffs claim they were not on notice.  In the opinion that accompanied the Lone Pine order, the district court warned—either make the court aware of prima facie evidence of specific causation or defendant will be entitled to move for dismissal.  Id. at *4.    So, while the Lone Pine order required PCR testing, plaintiffs did nothing in the allotted 90 days to propose alternatives to the court.  Nor did they offer any alternative in opposition to defendant’s motion to dismiss.  They vaguely claimed their experts could prove specific causation using differential diagnosis techniques, but “they did not identify their experts or explain how they would accomplish these aims.”  Id.  The Third Circuit was left as “puzzled” as the district court as to why plaintiffs would promise they had more but not offer it to defeat dismissal.  It simply goes against “common sense.”  Id.

Plaintiffs second argument was that the district court failed to properly weigh the Poulis factors, referring to Poulis v. State Farm Fire & Cas. Co., 747 F.2d 863, 868 (3d Cir. 1984) (setting forth six factors a trial court must balance before dismissing a complaint):  (1) the extent of the party’s personal responsibility; (2) the prejudice to the adversary; (3) a history of dilatoriness; (4) whether the conduct of the party or the attorney was willful or in bad faith; (5) the effectiveness of alternative sanctions other than dismissal; and (6) the meritoriousness of the claim or defense.  Poulis offers a set of non-mandatory factors aimed at making sure a dismissal is not arbitrary.  Plaintiffs did not act willfully or in bad faith, but they did “insist[] they could prove specific causation  . . . without PCR testing,” while admitting it was required in state court litigation.  In re: Zostavax, at *5.  Further, plaintiffs had done nothing to demonstrate that they could ever succeed on the merits.  Allowing 1,189 non-meritorious cases to sit on the MDL docket would be severely prejudicial to defendant.  Therefore, dismissal was an “effective sanction.”  Id.