Healthy Skepticism Library item: 12268

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Publication type: news

Graybow M.
Lawyers for Vioxx Users Seek Changes to Pact
Reuters 2007 Dec 21
http://www.medscape.com/viewarticle/567886?src=mp

Full text:

A proposed $4.85 billion pact between Merck & Co Inc and users of painkiller Vioxx would force plaintiffs’ lawyers to make recommendations to clients that may not be in their best interests, according to attorneys who are challenging the pact’s terms.

Several lawyers have filed court papers asking that the settlement agreement be altered. Under the pact, if lawyers for Vioxx plaintiffs recommend that some clients accept settlement money, they must then recommend the settlement to all of their clients or else withdraw from representing them.

The agreement “which allows Merck to dictate the advice a lawyer will offer, is improper in all states,” plaintiffs’ lawyer Grant Kaiser wrote to U.S. District Judge Eldon Fallon in New Orleans, who is overseeing the settlement process.

The motion was filed last week and then amended on Monday.

Merck will oppose the lawyers’ attempts to alter the settlement terms, said Kent Jarrell, a spokesman for the drug maker’s Vioxx litigation team.

“We think that the agreement that was reached with the plaintiffs is a good and fair one for individual claimants,” he told Reuters on Friday. “We don’t plan to change the agreement. The agreement is the agreement.”

Merck and several plaintiffs’ firms representing large numbers of Vioxx users agreed in November to the settlement in hopes of ending most of the litigation over Vioxx, which was pulled off the market three years ago after a study showed it raised heart attack and stroke risks in some people.

The settlement could cover as many as 50,000 former Vioxx users, which could mean payouts of less than $100,000 each before attorneys’ fees.

A key element of the pact is the provision that attorneys whose clients accept the settlement must also recommend the deal to all of their other clients who qualify. The company has said it wants to be sure that lawyers do not include weaker cases in the pact and hold back the stronger ones for trial, which could mean that Merck would face court fights for years to come.

Jarrell said that during the settlement negotiations, plaintiffs’ lawyers looked at the provision closely, checked with ethics experts and went through their case inventories to determine if claimants would be treated fairly. He said that in some cases, the judge could grant exceptions to allow lawyers to continue representing clients who opted out of the settlement even if their other clients accepted it.

But Kaiser, who wrote the motion on behalf of several other law firms, said the provision would prevent lawyers from evaluating each case on its own merits.

It also could open attorneys to the possibility of lawsuits from clients who agree to the settlement and then become disgruntled, he wrote.

Judge Fallon has set a Jan. 16 hearing for arguments on the motion.