The Wall Street Journal-20080119-Merck-s Prospects Brighten for Vioxx Settlement
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Merck's Prospects Brighten for Vioxx Settlement
Prospects for Merck & Co.'s $4.85 billion Vioxx settlement grew more promising, with participation outpacing expectations and the parties agreeing on amendments that resolve a major sticking point and make payouts more attractive to holdout plaintiffs.
The parties announced Friday that more than 57,100 claimants out of an estimated 60,100 -- in excess of 95% -- registered their cases by the Jan. 15 deadline, far more than the minimum required to keep the deal alive.
"That's really remarkable in my view," said plaintiffs attorney Andy Birchfield, who was on the settlement-negotiating committee.
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 with a heart attack or stroke.
At a status conference in federal court in New Orleans Friday, lawyers for Merck and the plaintiffs tied up some issues that had been a source of conflict. Groups of lawyers around the country had objected to a clause that required them to recommend the settlement either to all or none of their clients and to take steps to drop those who wished to opt out.
Lawyers who contested that provision had filed motions citing ethical obligations to give clients individual counsel that isn't predicated on potential conflicts of interest. They have withdrawn the motions or indicated their intention to do so, according to Kent Jarrell, Merck's Vioxx legal spokesman.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 said.
The attorneys appear to have been mollified by 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. The deadline is Feb. 29. Mr. Jarrell says Merck, of Whitehouse Station, N.J., expects that threshold will be met and that 3,065 claimants already have begun to enroll.
Another amendment to the settlement might encourage plaintiffs with strong cases to settle rather than take their chances on winning a big verdict in court. Merck agreed to remove caps on supplementary payments to claimants able to prove "extraordinary injury." Caps had been set at $600,000 for individuals.
