Zostavax shingles vaccine. Courtesy photo

A federal judge has tossed 173 complaints from the litigation over the shingles vaccine Zostavax, and in doing so offered some stern words for the attorneys who filed the complaints.

U.S. District Judge Harvey Bartle III of the Eastern District of Pennsylvania on Thursday issued a five-page order tossing nearly one-third of the complaints from the 542-strong multidistrict litigation, saying that the complaints were “full of boilerplate language unrelated to the individual case,” and were “the antitheses of how a proper federal complaint should be drafted.”

The ruling tossed the plaintiffs' fraudulent misrepresentation, fraudulent concealment, negligent misrepresentation, consumer fraud and state consumer fraud violation claims with prejudice, and dismissed all the remaining claims, including unjust enrichment, breach of warranty, failure to warn, strict liability and negligence, without prejudice.

Although that means the plaintiffs can re-file complaints on the remaining claims, Bartle issued a warning to the plaintiffs attorneys about filing similar complaints.

“The one-size-fits-all approach of plaintiffs' counsel produced allegations that are absurd on their face as to every plaintiff. Notably, plaintiffs state that they were induced to obtain a Zostavax vaccination by advertisements that began running years after plaintiffs were inoculated,” Bartle said, adding at the end of the opinion, “We call … this court's order to the special attention of plaintiffs' counsel and urge them not to repeat the same behavior exhibited here with respect to any future filings in this multidistrict litigation.”

The order specifically mentioned New York firm Marc J. Bern & Partners, and said no attorney at the firm could file a complaint or amended complaint that contained more than 40 pages.

“The court will dismiss without prejudice on its own motion any such complaint or amended complaint hereinafter filed that exceeds 40 pages,” Bartle said.

Marc J. Bern did not immediately return a call seeking comment.

In re Zostavax (Zoster Vaccine Live) Product Liability Litigation hinges on claims that the drug, which was manufactured by Merck—a defendant in the case—caused elevated blood pressure, headaches, eye injury and in some cases, death. The drug is meant to treat shingles, which is a rash on the side of the face or body, usually affecting people older than 50. In 2006, the U.S. Food and Drug Administration approved Zostavax as a shingles vaccine.

Lawsuits were filed in Pennsylvania state court, and federal courts in Pennsylvania, New Jersey, New York, Wisconsin and Massachusetts. However, the litigation was eventually consolidated into a multidistrict litigation before Bartle.

According to the list of pending MDLs, as of April 15, 542 actions were pending on the litigation's docket.

Attorney Mark Sadaka of Englewood, New Jersey-based Sadaka Associates, who, along with Michael Goetz of Morgan & Morgan in Tampa, Florida, are co-lead plaintiffs counsel in the litigation, said the cases were only dismissed because of the style of the pleadings.

“The dismissal of the complaints have nothing to do with the merits of the claims, but the pleading style of one particular firm,” Sadaka said. “The cases that were dismissed were dismissed because their complaints were too long. Judge Bartle has given the firm opportunity to amend the pleadings to conform with the federal rules.”

Goetz added that Bartle previously dismissed fraud claims from the litigation, and so the decision to dismiss some of the claims with prejudice is not expected to have a significant impact on the litigation.

“At least the leadership of the MDL has not been pursuing that theory of liability. The case we've been pursuing is failure to warn and negligence design defect,” he said. “It doesn't in any way derail the theories of liability we've been pursuing.”

Venable LLP attorney Dino Sangiamo, who is representing both Merck and McKesson, did not return a call seeking comment.