Vioxx Settlement Update

On Friday, Judge Fallon held a status conference on the Vioxx settlement. As reported by the Wall Street Journal this morning, the parties announced that roughly 57,100 claimants out of some 60,100 (upwards of 95%) registered their cases by January 15. You may recall that Merck needed only 85% to keep the deal alive. I mentioned in an earlier post that some plaintiffs attorneys filed an emergency motion objecting to the settlement requirement that each attorney recommend the deal to all of their clients. This motion has been withdrawn in light of a "clarification" stating that "Each Enrolling Counsel is expected to exercise his or her independent judgment in the best interest of each client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." Here’s a short excerpt from the Wall Street Journal’s article, "Merck’s Prospects Brighten for Vioxx Settlement:"

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 They have withdrawn the motions or indicated their intention to do so, according to Kent Jarrell, Merck's Vioxx legal spokesman.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.

ECB