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Florida Vioxx Plaintiffs Look to Expand Settlement

Jan 30, 2008 | Parker Waichman LLP

Vioxx plaintiffs in Florida are petitioning a federal court to expand Merck’s proposed $4.85 billion settlement to include those who did not file suit against the company by Nov. 9, 2007.  But many lawyers involved in the Vioxx settlement oppose the petition, fearing that adding more plaintiffs to the Vioxx settlement would lessen the awards each eligible participant would receive.  However, if the situation is not resolved, Vioxx patients who did not file suit against Merck by the November 9 deadline could still bring their own lawsuits.  But that means Merck’s Vioxx troubles – which the $4.85 billion settlement was supposed to resolve – would be far from over.

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.

When the Vioxx settlement agreement was announced on Nov. 9, 2007, it only applied to Vioxx patients who had filed suit by that day.   Under Florida law, Vioxx plaintiffs had until Sept. 30, 2008 to file suit — four years after Merck pulled Vioxx from the market.  So by the November 9 deadline, about 300 Florida Vioxx plaintiffs had still not filed their lawsuits, nor had they reached agreements with Merck for deadline extensions.

According to the Associated Press, the Florida lawyers representing these plaintiffs say they had an agreement to set up an "amicable, working relationship" with the plaintiffs' steering committee "for the mutual benefit of their clients," and had submitted a list of clients who had not yet filed suit. However, they said, they weren't informed that a settlement was close, and therefore could not get their clients' situation considered.

If the motion to expand the Vioxx settlement is granted, it could have ramifications well beyond Florida.   Lawyers for the Florida plaintiffs told the Associated Press that states with even longer statutes of limitations could be affected by a decision if their lawyers had similar agreements with the steering committee.  North Dakota residents had six years, Missouri residents had five and Wyoming residents four. According to the Associated Press, Maine residents also have six years to file Vioxx lawsuits, and those in Nebraska and Utah have four.

In New Orleans, the federal judge overseeing the Vioxx settlement dismissed the motion filed Monday. But a lawyer for the Florida plaintiffs said a substitute was being filed, and a hearing was tentatively scheduled Feb. 21.


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