By Nora Lockwood Tooher
Plaintiffs' lawyers this morning announced that Merck & Co. has agreed to pay $4.85 billion to settle the majority of claims over injuries linked to its Vioxx painkiller.
New Orleans attorney Russ Herman, a member of the plaintiffs' negotiating committee, said negotiations began in December 2006, after the four federal and state judges involved in the litigation pressed both sides for a settlement.
Merck, which faced more than 27,000 lawsuits from people who claim to have been injured by the widely used arthritis and pain medicine, had vowed to fight each case in court.
Over the past two years, juries decided Vioxx cases in Merck's favor 11 times and sided with the plaintiffs five times.
Merck said the agreement will resolve about 85 percent of the lawsuits filed over the drug. Under the agreement, Merck will set up a $4 billion fund for claims of myocardial infarction and an $850 million fund for ischemic stroke claims. The amount awarded to individual plaintiffs will vary.
Herman, a principal at Herman, Herman, Katz & Cotlar, said the negotiating teams for both sides met more than 50 times over the past year, in New Orleans; Montgomery, Ala.; Philadelphia; New York; Washington, D.C.; Memphis, Tenn. and St. Louis.
"It took us almost a year to hammer out a resolution," Herman said.The agreement was signed this morning by Merck attorneys and the executive committee of the Plaintiffs' Steering Committee for the federal multidistrict Vioxx litigation, as well as representatives from the plaintiffs' lawyers in state proceedings.
Chris Seeger, a partner at Seeger Weiss in New York and a member of the plaintiffs' negotiating committee, said that every claim filed as of today is eligible to be part of the settlement.
Claimants will have to prove they had a heart attack or stroke and had been on Vioxx at least 14 days prior to the injury.
"If you can do that, you come in and you'll be compensated," Seeger said.
Seeger said he was pleased with the settlement.
"I'm happy Merck did it," he said. "It's the right thing to do."
Andy Birchfield, a shareholder with Beasley, Allen, Crow, Methvin, Portis & Miles, who also served on the plaintiffs' negotiating committee, said each claim will be evaluated separately.
"The settlement program is set up in such a way that they will consider the age and level of injury, how long the person was taking Vioxx and what the person's risk factors were," he said.
Birchfield said the bellwether trials conducted over the past two years provided solid information to both sides about what issues a settlement would have to address.
"The injuries involved in these cases are very serious, but these cases are very challenging to prove causation, because there are many causes of heart attack or stroke," he commented.
"Each side had their challenges, and through this model of having bellwether trials and coordinated state courts conducting trials both sides were able to assess the strengths and weakness of the cases and reach a compromise that works out well for [all] parties," he added.
The personal injury settlement was entered today in New Orleans before the Honorable Eldon E. Fallon, a United States District Court Judge in the Eastern District of Louisiana, as well before New Jersey Superior Court Judge Carol E. Higbee and Los Angeles Superior Court Judge Victoria Chaney, who have coordinated the New Jersey and California Vioxx litigations, respectively.
Seeger said claims will be resolved as quickly as possible and the settlement is intended to bring to a close the personal injury cases in the Vioxx litigation.