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Vioxx Settlement Gaining Ground, with 95 Percent of Plaintiffs Signing On

Jan 22, 2008 | Parker Waichman LLP

The pending Merck Vioxx settlement appears to be on track, as more than 95 percent of possible Vioxx claimants have signed on to Merck’s $4.85 million settlement offer.   In other developments, lawyers opposed to an “all or nothing” provision in the proposed Vioxx settlement, have apparently agreed to wording that makes the settlement more palpable.

Over 57,100 claimants of an estimated 60,100—or more than 95 percent—registered their cases against Merck & Co. by the January 15th deadline.  This amount is much more than the minimum required to proceed against Merck in the Vioxx suit.  Vioxx, or refecoxib, is in a class of drugs called nonsteroidal anti-inflammatory drugs (NSAIDs) and works by reducing substances that cause inflammation, pain, and fever.  Vioxx, a widely used painkiller, was pulled from the market in 2004 after being linked to cardiovascular problems.  Under the settlement plan announced in November, 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.

Prospects for Merck & Co.'s $4.85 billion Vioxx settlement grew more promising for the plaintiffs with claimant involvement over 95 percent exceeding what was expected.  Also, parties involved in the lawsuit have agreed on some amendments that resolve one outstanding issue and make payouts more attractive to those plaintiffs who have been holding out for a better deal.  "That's really remarkable in my view," said plaintiffs attorney Andy Birchfield, who was on the settlement-negotiating committee.  At a status conference in federal court in New Orleans Friday, lawyers for Merck and the plaintiffs resolved some conflicting issues. Groups of lawyers around the country had objected to a clause that required them to recommend the settlement to either all or none of their clients and to take steps to drop those who wished to opt out.  Lawyers contesting that all or nothing provision filed motions citing ethical obligations to provide clients individual counsel not predicated on potential conflicts of interest.  They have either withdrawn the motions or indicated their intention to do so, according to Kent Jarrell, Merck's Vioxx legal spokesman. "There are no pending motions anywhere" related to the settlement plan, he confirmed.

The attorneys appear to be satisfied with an addition to the deal that says, "Each Enrolling Counsel is expected to exercise his or her independent judgment in the best interest of each client individually before determining whether to recommend enrollment in the Program."  Lawyers for both sides said this is a point of clarification but not a substantive change.

The real test of the deal's viability will come next month, when 85% of the 57,100 claimants must enroll their cases by submitting releases and medical records by the mandated February 29th deadline.  Jarrell says Merck, of Whitehouse Station, N.J., expects the threshold will be met, adding that 3,065 claimants already have begun the enrollment process.

There is another amendment to the settlement that might encourage plaintiffs with strong cases to settle and not risk the odds of winning a big verdict in court.  Merck agreed to remove the $600,000 cap on supplementary payments to individual claimants able to prove "extraordinary injury.”

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