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Deadlines Mean Vioxx Lawsuit Plaintiffs Have Big Decisions to Make

Jan 10, 2008 | Parker Waichman LLP With deadlines looming, many people injured by Vioxx will need to decide if they want to be part of the $4.85 billion settlement that Merck proposed late last year.  But while it does appear that most Vioxx plaintiffs will participate in the settlement with Merck, a good number of others are indicating that they will decline.  

Vioxx was approved for use in 1999, and quickly became a blockbuster for Merck, with annual sales of $2.5 billion. The Food & Drug Administration ordered the painkiller off the market after an analysis of patients using Vioxx linked the defective drug to more than 27,000 heart attacks or sudden cardiac deaths in the U.S. from 1999 through 2003.  Since then, tens of thousands of Vioxx victims have sued Merck.

Under the proposed Vioxx settlement, Merck is to set up a $4 billion fund for people who claim they suffered heart attacks as a result of Vioxx, and another $850 million fund for those who suffered ischemic strokes.  According to The Wall Street Journal, plaintiffs who agree to the Merck Vioxx settlement could see payments ranging from $50,000 on the low end to $1.5 million at the top, with an average above $200,000. Those amounts are subject to attorneys' fees, expenses and liens from government entities like Medicaid and Medicare.  

According to The Wall Street Journal, Jan. 15 is the deadline when all plaintiffs with a Vioxx-related case must register -- whether or not their injuries would necessarily qualify for the settlement payout. This preliminary step will establish how many cases Merck faces. Those that don't qualify for the settlement could still go to court.  The second big deadline comes Feb. 29, when the estimated 45,000 plaintiffs with heart-attack and stroke cases that qualify for the settlement must enroll.

But the settlement will only take effect if 85 percent of those suing Merck over Vioxx injuries agree to accept it by the last deadline.  Merck has tried to coerce Vioxx plaintiffs to take the offer by including an “all or nothing” provision in the settlement.   According to that provision, before they can take part, lawyers must agree to recommend the deal to all their clients — and withdraw from representing those who do not enter into the settlement.

Some lawyers say this provision of the Vioxx settlement puts them in a difficult position.   They argue that t while the Vioxx settlement is appropriate for some of their clients, it does not serve the interests of all.  They also feel that the  stipulation prevents them from offering the best independent judgment for each client, and  opens them up to future lawsuits from disgruntled clients.

Already, motions have been filed to strike the “all or nothing” provision from the Vioxx settlement.  The Wall Street Journal is reporting that one of these motions, filed by lawyers from Missouri and Illinois, is scheduled for a hearing Jan. 18 before U.S. District Judge Eldon E. Fallon of New Orleans, who is overseeing the settlement. Another motion by lawyers from Kentucky and Indiana hasn't yet been set for a hearing.

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