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Merck Shingles Vaccine Class Action Lawsuit Overview:
- Who: A judge has dismissed a class action lawsuit alleging Merck overstated the effectiveness of its shingles vaccine.
- Why: The judge said the plaintiff had not adequately made her case that she, as a consumer, was harmed by Merck’s alleged false advertising and gave her 14 days to amend her claim.
- Where: The lawsuit was filed in an Ohio federal court.
A lawsuit alleging pharmaceutical giant Merck misled consumers about how effective its shingles vaccine is, particularly with older people, has been dismissed by an Ohio federal judge.
On Apr. 11, U.S. District Judge James L. Graham ruled that Rebecca Gentile’s class action lawsuit against Merck & Co. Inc. and Merck Sharp & Dohme Corp. regarding the Zostavax vaccine could not go ahead in its current form.
Gentile had alleged that the Zostavax vaccine is not as effective for all age groups at preventing infection with the shingles virus, and that the companies do not clearly disclose this.
She says Merck advertised the vaccine as being 51% effective for everyone, according to the lawsuit filed in September 2019.
However, Gentile claims the vaccine’s usefulness greatly diminishes among older people. She says Zostavax is only 41% effective for those in their 70s and only 18% effective for anyone over 80.
Merck Shingles Vaccine Class Action Rules Olauntiff Not a Consumer, Business Entity
Judge Graham ruled that Gentile’s lawsuit could not go ahead in its current form because of the laws she is suing under—the Ohio Consumer Sales Practices Act (OCSPA) and the state’s Deceptive Trade Practices Act (ODTPA).
However, Graham said Gentile doesn’t technically meet the definition of a consumer because she did not buy the vaccine directly from the manufacturers.
“A ‘consumer’ is defined as a person who engages in a consumer transaction with a supplier,” Judge Graham said. “Plaintiff makes no allegation that she or the class members engaged with [Merck], the purported supplier, to purchase the Zostavax vaccines. Therefore, she has failed to plead an OCSPA claim.”
However, he also said Gentile does not have standing to sue under the ODTPA because she is a consumer and not a business.
His decision granted Merck its motion to dismiss while giving Gentile 14 days to amend her complaint.
The news comes after a Philadelphia man filed a Zostavax lawsuit against Merck & Co. Inc. in 2020, claiming the pharmaceutical company failed to take the steps necessary to ensure their product would not cause danger to consumers.
According to the plaintiff, Merck knew or should have known about the harm their vaccine could cause consumers and should be held responsible for the injuries the plaintiff sustained as a result of using their product.
You may qualify to join a free Zostavax lawsuit investigation if you or a close relative were diagnosed with a condition after being vaccinated with Zostavax (links to paid attorney content).
Gentile is represented by Eric A. Jones of Jones Law Group LLC.
The Merck Shingles Vaccine Class Action Lawsuit is Gentile v. Merck & Co., Inc. et al., Case No. 2:19-cv-04174, in the U.S. District Court for the Southern District of Ohio, Eastern Division.
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