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Merck Extends Another Vioxx Settlement Deadline

May 5, 2008 | Parker Waichman LLP

Merck just extended the deadline for registered participants to submit paperwork to June 30 on the Vioxx program. Merck states that the proposed $4.85 billion settlement for illness associated with Vioxx—also known as refecoxib—continues on schedule.  The original deadline for claimants to provide documents proving they took Vioxx and then had a heart attack or stroke was May 1; the registration deadline was January 15.

"The resolution program is going forward in a satisfactory way.  We expect to meet and exceed the threshold for funding of the program," said Merck & Co. spokesman Kent Jarrell.  Lawyers on the plaintiffs' steering committee said the extension raised no concerns, adding it was anticipated because the claims administrator continues to verify submitted documents.  "The enrollment has been overwhelming and the documents have been coming in at a great pace," said one of those lawyers.

Merck added that unverified claims are now at nearly 95 percent of eligible plaintiffs in all categories.  Once 85 percent of eligible plaintiffs registered, Merck was obligated to participate in the settlement.  The deal was reached in November in an effort to end most of the 61,100 Vioxx lawsuits.   Approximately 45,000 eligible claimants initiated enrollment by March 31, according to Merck which enabled settlement activities moving forward.

Vioxx is in a class of drugs called nonsteroidal anti-inflammatory drugs (NSAIDs) and works by reducing substances that cause inflammation, pain, and fever.  Merck pulled Vioxx from the market on September 30, 2004, following mounting evidence that Vioxx doubled patient risk of heart attack and stroke.  After a few years of litigation, a comprehensive settlement was proposed in November.  Under the settlement plan, Merck agreed to compensate plaintiffs who can show, under certain conditions, that taking the drug was connected their having suffered a heart attack or stroke.

As of March, Merck reported that the majority of claimants who registered injuries eligible for compensation have submitted some or all of the documentation required to seek a share of the settlement.  Claimants are now required to provide medical records that third-party administrators will use to assess for what payment they might qualify.  Under the plan, a claim must be based on an incidence of heart attack, ischemic stroke, or sudden cardiac death.  Plaintiffs must provide documentation indicating Vioxx was taken for at least 30 days and the injury occurred within 14 days of using the drug.  Payouts will be adjusted according to other cardiovascular risk factors.

Plaintiffs lawyers estimate that, depending on age and risk factors, settlement payments will range from $50,000 to $1.5 million, with an average exceeding $200,000.  Merck set aside $1.9 billion for litigation costs—not including payouts—and spent $1.2 billion.  Plaintiffs had trouble persuading juries that Vioxx, and not other risk factors, caused injuries. Of the 16 cases that went to trial, Merck won 11; however, at the first Vioxx trial, a jury in August 2005 awarded a Texas widow $253.4 million—later reduced to $27.2 million, including interest.  Also, Merck agreed to remove a $600,000 cap on supplementary payments to individual claimants able to prove "extraordinary injury.”


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