Merck Escapes False Ad Suit Over Shingles Vaccine

An Ohio federal judge has tossed a proposed class action against pharmaceutical giant Merck that sought punitive damages over claims that it falsely advertised how effective its shingles vaccine is across age groups.

U.S. District Judge James L. Graham ruled that Rebecca Gentile failed to adequately plead all the claims she made in her lawsuit, which asserts the Zostavax vaccine is not nearly as effective for everyone at preventing infection with the shingles virus as New Jersey-based Merck & Co. Inc. and Merck Sharp & Dohme Corp. advertised.

His decision granted Merck its motion to dismiss while giving Gentile 14 days to amend her complaint.

Merck has advertised its vaccine as being 51% effective for everyone, according to the lawsuit filed in September 2019. Gentile’s suit claims the vaccine’s usefulness greatly diminishes among older people. Zostavax is only 41% effective for septuagenarians and only 18% effective for anyone over 80.

Two of the core claims in Gentile’s lawsuit were that Merck violated the Ohio Consumer Sales Practices Act, or OCSPA, and the state’s Deceptive Trade Practices Act. Judge Graham’s reasoning for dismissing these claims focuses on the different statutory definitions of a “consumer.”

Judge Graham said Gentile’s claim failed “on a more fundamental ground — that it is not brought by a consumer.”

Technically, Gentile doesn’t 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.”

At the same time, Gentile does not have standing to sue under the Ohio Deceptive Trade Practices Act, or ODTPA, because she is a consumer, Judge Graham said.

This law allows a “person” who was injured by a deceptive business practice to sue the deceitful party in civil court, but most federal judges in the Southern District of Ohio have determined that the statutory definition of a “person” refers to a commercial entity rather than an individual consumer.

There exists a “minority position” that assumes both commercial entities and consumers can make claims under this law, Judge Graham said.

“The root of this position is the ODTPA’s definition of person does not limit standing to commercial entities,” he said. “Adopters of the minority position therefore conclude that consumers have standing.”

But Judge Graham is not among the minority. Instead, he looked to an unpublished 2013 opinion by the Sixth Circuit in Holbrook v. Louisiana-Pac. Corp. , which relied on state appeals courts’ assertion that consumers cannot make claims using this law.

The state appeals courts have come to this conclusion by looking to an analogous federal law, the Lanham Act, which also does not give standing to consumers, the judge said.


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