Big Vioxx Settlement Deadline TodayJan 15, 2008 | Parker Waichman LLP
Vioxx patients who where injured by the defective drug have until the end of business today to decide whether or not to take part in a proposed $4.85 billion settlement with Merck Inc. According to Bloomberg.com, about half of the 60,800 people who sued have already signed up. Of those, 29,000 claimed heart attacks and 17,000 claimed strokes. For the Merck Vioxx settlement to take effect, 85 percent of heart attack and stroke claimants must sign up by today's deadline.
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. Merck has already spent $1.2 billion fighting Vioxx lawsuits prior to the announcement of the settlement. Merck said it planned to announce the final registration tally at a court hearing on Jan. 18 in New Orleans federal court.
In order to be eligible for the settlement, Vioxx claimants will have to enter into a resolution process. Merck will 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. The settlements will be awarded on an individual bases, and the amount of money each plaintiff ultimately receives will vary. Under the terms of the Vioxx settlement agreement, Merck has admitted no fault for the defective drug.
But the Vioxx settlement agreement, which was reached by Merck and plaintiffs’ attorneys from several large law firms, is not popular with all Vioxx plaintiff lawyers. 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 plaintiffs’ attorneys are saying that while the Vioxx settlement is appropriate for some of their clients, it does not serve the interests of all. .
Already, motions have been filed to strike the “all or nothing” provision from the Vioxx settlement. The Wall Street Journal reported last week 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.
Those Vioxx victims who do not decide to participate in the Merck settlement will still have the option of suing the drug maker on their own, but if the “all or nothing” provision is allowed stand, they might have difficulty finding lawyers to represent them in their fight against Merck.