Vioxx Settlement All-or-Nothing Provision Prompts Some Lawyers to Seek ChangesDec 21, 2007 | Parker Waichman LLP
The Vioxx settlement announced with great fanfare last month has not satisfied all Vioxx victims, and now their lawyers are asking a judge to change the terms of the proposed settlement so that they may be excluded from it. As it stands now, the Vioxx settlement has a big string attached to it. To take part, lawyers must agree to recommend the deal to all their clients — and withdraw from representing those who do not agree. Understandably, this all-or-nothing provision is not sitting well with many Vioxx plaintiffs’ attorneys, who say such a stipulation makes it impossible to adequately represent all of their clients.
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. The settlements will be awarded on an individual bases, and the amount of money each plaintiff ultimately receives will vary. 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.
The Vioxx settlement agreement was reached by Merck and plaintiffs’ attorneys from several large law firms. But other lawyers are saying that while the Vioxx settlement is appropriate for some of their clients, it does not serve the interests of all. In a motion filed in the Federal District Court in New Orleans asking that the all-or-nothing provision be struck down, some lawyers are contending that the stipulation would prevent them from offering the best independent judgment for each client. They also assert that agreeing to the provision might open them to future lawsuits from disgruntled clients.
One legal expert told the New York Times that the provision in question poses an ethical dilemma. A lawyer is duty bound to represent the best interests of a client, but the Vioxx settlement might not allow for this, Benjamin Zipursky, a professor at Fordham Law School said. “The question is, is this really independent advice given to each client if the lawyer obligates himself or herself to say this to all the clients?” Mr. Zipursky said.
For its part, Merck has very good reasons for wanting to keep the all-or-nothing provision a part of the Vioxx settlement. According to the New York Times, Merck wants lawyers to put all their clients into it so that it will not face the prospect that they will settle their weaker claims while withholding their stronger cases for trial. Merck also wants to be sure that plaintiffs who do choose to go ahead will have to find new lawyers, a process that will probably be difficult because the firms with the most experience in the case are all part of the agreement. Merck has not said what it will do if the all-or-nothing provision is removed from the Vioxx settlement.