Products Liability Law Reporter

A federal district court held that a jury should decide the products liability claims of a plaintiff who alleges she suffered ophthalmologic shingles after receiving the Zostavax vaccine.

Emily Sansone received the Zostavax vaccine in September 2007. Afterward, she suffered a rash around her right eye plus pain in her left eye, prompting her to seek treatment from an ophthalmologist. The physician diagnosed shingles. That year and in 2008, Sansone told other treating physicians that she had developed shingles in her eye after receiving the shingles vaccine. In 2018, she sued Merck & Co., Inc., and Merck Sharp & Dohme Corp., alleging defective design, failure to warn, negligence, and negligent misrepresentation. The defense moved for summary judgment on limitations grounds.

Denying the motion, the court noted that products liability and negligence claims have a four-year limitations period in Florida. A cause of action accrues, the court said, when the last element constituting the cause of action occurs. Citing case law, the court said that discovery of facts giving rise to a cause of action need not lead to a person’s legal certainty that a claim exists for the limitations period to run. Here, the court said, the record contains genuine issues of material fact regarding whether the plaintiff believed or had reason to believe that her eye symptoms were a reaction to Zostavax. The court added that the plaintiff’s statements to her various treating physicians do not necessarily demonstrate that she understood there was a connection between the vaccine and her shingles. Thus, the court concluded that a jury should decide whether the plaintiff knew or had reason to know in 2007 and 2008 that Zostavax may have caused her symptoms.

Citation: Sansone v. Merck & Co., No. 2:18-cv-20114 (E.D. Pa. July 27, 2021).

Plaintiff counsel: AAJ member Virginia E. Anello, New York City; and AAJ member Michael S. Goetz and Nicole M. Georges, both of Tampa, Fla.