Merck Vioxx Settlement Has Some Attorneys Uneasy

by Robert A. Schwartz, Attorney at Law

Nov. 21, 2007

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Pharmaceutical company Merck & Co. has negotiated a multibillion-dollar settlement to resolve the outstanding Vioxx product liability claims in the U.S., though some plaintiffs’ attorneys are concerned about participating in the settlement.

The $4.85 billion settlement, reached in the U.S. District Court, Eastern District of Louisiana, comes with strings attached — long ones. Merck agreed to compensate qualified plaintiffs who sustained a heart attack, sudden cardiac death or ischemic stroke from taking Vioxx.

The company’s payout is capped at $4.85 billion, which is expected to cover 95 percent of all claimants. Of course, this keeps the liability hounds from knocking too often on the pharmaceutical company’s door and, according to Merck, will help them resolve the Vioxx calamity. President and CEO Richard Clark said the settlement will allow the company to “concentrate even more fully on its mission of discovering, developing and delivering novel medicines and vaccines.”

The problems and ethical challenges arise when we take a closer look at the provision agreed to by Merck and the lead lawyers in the case. The Wall Street Journal states the provision as requiring that “if one client of an attorney enrolls in the settlement, then the attorney must recommend the deal to all other clients. If a client decides not to take part in the settlement, then the lawyer, according to the deal, must take all necessary steps to withdraw from representing that client.” According to Deborah Rhode, an ethics professor at Stanford Law School, ”if the price of exercising what should be their right to reject the settlement means they have to forfeit their representation from the lawyer actually familiar with the case, it’s not exactly an uncoerced choice.”

Perhaps for Merck, the settlement allows the company to cut bait and move on to bigger fish and for most plaintiffs to receive some type of compensation without any more delay.