Plaintiffs’ Attorneys’ Motions Challenging Vioxx Settlement Cloud Issues as January 15, 2008 Deadline to Register Approaches

Pursuant to the terms of the $4.85 billion Vioxx settlement, January 15, 2008 is the deadline for all plaintiffs with a Vioxx-related case to register — whether or not their injuries would necessarily qualify for the settlement payout. This preliminary step will establish how many cases Merck, the manufacturer of Vioxx, faces. Those that don’t qualify for the settlement could still go to court. More than 28,000 of the estimated 60,800 claimants have submitted registration information so far.

But several plaintiffs attorneys have made a motion requesting that the federal judge overseeing the Vioxx settlement, U.S. District Judge Eldon E. Fallon of New Orleans, allow them to have freedom to have some clients to accept the settlement, while keeping some clients outside of it. One of these motions, filed by lawyers from Missouri and Illinois, is scheduled for a hearing January 18 before Judge Fallon. Another motion by lawyers from Kentucky and Indiana hasn’t yet been set for a hearing.

The motions challenge the part of the Vioxx settlement that contains a provision requiring a lawyer who wants a client of his to receive settlement money from Merck, the makers of Vioxx, to recommend the deal to all of his clients. Lawyers must withdraw from representing those of their clients who do not accept the settlement and sign a document saying they don’t represent any outstanding Vioxx cases.

The law firms filing the motions represent thousands of plaintiffs and say the provision of the settlement violates professional-ethics codes that require lawyers to give every client their “independent professional judgment.” Clients who reject the settlement or whose attorneys drop them would be hard-pressed to find experienced and capable counsel, lawyers argue. Some plaintiffs are concerned their lawyers have been co-opted into recommending the deal, and are objecting to pressure that they perceive is being put upon them to participate in the settlement. Inclusion of the provision was crucial Mercks settlement decision.

A lawyer for Vioxx stated that the company will oppose the motion and that the settlement was carefully created so that it would be fair to Merck and the plaintiffs. Merck is afraid that if plaintiffs do not accept the settlement, it will have to go to trial. However, lawyers in Texas who previously made but then withdrew a motion similarly challenging the controversial provision have stated that Merck has indicated that it will agree to a softening of the provision.

A more crucial deadline than the January 15 one comes February 29, 2008, when the estimated 45,000 plaintiffs with heart-attack and stroke cases that qualify for the settlement must enroll. To validate the pact, at least 85% of those must enroll.

The settlement agreement between several large plaintiffs law firms and Merck was reached in order to resolve over 50,000 claims which asserted that Vioxx, caused the plaintiffs to suffer from strokes and heart attacks after taking the pain killer. Vioxx was taken off of the market in 2004.

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