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Vioxx Lawsuit Settlement Could Rank Among the Largest Defective Drug Settlements

Nov 12, 2007 | Parker Waichman LLP
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Merck’s proposed Vioxx settlement could become on of the largest defective drug lawsuit settlements in history if it is accepted by a majority of Vioxx victims who have filed lawsuits against the company for strokes and heart attacks they say where caused by the painkiller.  Late last week, Merck proposed settling the majority of pending Vioxx lawsuits for $4.85 billion -- just one month after the pharmaceutical giant had vowed to fight each suit individually.

In order for the Merck Vioxx lawsuit settlement to take effect, at least 85% of those who have filed Vioxx lawsuits and fit the proposal’s criteria must agree to accept it by March 1, 2008.  To be eligible for the settlement, plaintiffs must have filed Vioxx claims by last Thursday, November 8, 2007.   They must also be able to provide medical proof that they suffered from a stroke or heart attack, that they received at least 30 Vioxx pills, and that they where taking the medication within two weeks of having a heart attack or stroke.  For its part, the Vioxx settlement does not require Merck to admit any fault.

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.

Last Friday’s Vioxx settlement announcement came as a big surprise to many Merck watchers.   Merck, which is being sued by as many as 50,000 Vioxx victims in the US, had vowed to fight every lawsuit on an individual basis.  But that would have been an expensive proposition, and most legal analysts agree that Merck’s offer of $4.85 billion to settle Vioxx cases was a good move.  Of the 11 Vioxx lawsuits that went to trial thus far, Merck had lost five.

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.   Merck said that at this time, it has not determined how many former Vioxx users might be covered by the agreement.  Exactly how much each individual settlement award might be is also not known.  The amounts will vary depending on the severity of injuries, the length of time that a plaintiff used Vioxx, and each patient’s risk factors for cardiovascular disease. If the Merck Vioxx settlement is accepted, payments could start as early as August 2008.

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