NEW ORLEANS — A federal judge overseeing a $4.85 billion settlement with Merck & Co. involving its withdrawn Vioxx painkiller expressed confidence Friday that lawyers have resolved ethical concerns about the agreement.
Some lawyers for Vioxx patients have challenged a provision of the settlement that bars attorneys with clients who participate in the deal from representing others who opt out. That could force lawyers to advise all or none of their clients to accept the agreement.
On Friday, however, U.S. District Judge Eldon Fallon said lawyers have amended the November 2007 pact so that attorneys are directed to exercise their "independent judgment in the best interests of each client individually before recommending enrollment in the program."
"I’m satisfied that nothing in the agreement imposes on a lawyer any impermissible restriction on the practice of law," Judge Fallon told lawyers on both sides of the deal during a hearing in New Orleans.
Tens of thousands of Vioxx users who sued Merck have tentatively signed on to the agreement, leaving both sides confident the deal will go forward.
A total of 57,167 claimants have registered for the settlement program, which Judge Fallon said represents about 95% of potential claimants. Merck has said it will withdraw from the agreement unless at least 85% of people in different groups of claimants sign on.
A total of 3,065 claimants already have moved on to the next phase and enrolled in the program, said Merck spokesman Kent Jarrell.
"We expect that we will meet and exceed the thresholds required for funding the settlement," Mr. Jarrell said following Friday’s hearing. "We just don’t know when it will occur."
Ted Mayer, an attorney for Whitehouse Station, N.J.-based Merck, said all the lawyers who raised concerns about the ethical implications of the deal have withdrawn the formal objections they filed with Judge Fallon.
John Eddie Williams, a Houston-based attorney whose firm represents about 1,800 former Vioxx users, told Judge Fallon that the language changes satisfied his earlier concerns. "Our ethics advisers tell us we’re in good shape," Mr. Williams said.
The deal, announced Nov. 9, is expected to end an estimated 45,000 to 50,000 state and federal lawsuits, mostly filed by people who blame heart attacks or strokes on Vioxx.
Judge Fallon said the deal took months to consummate, but "there were some changes and some tweaking that was necessary" only hours before it was announced.
"It’s not surprising to me that, in that type of process, there would be some aspects of the agreement that had to be clarified," he said.
Andy Birchfield, a plaintiffs’ attorney who helped broker the settlement, said negotiators have met with nearly 1,000 other plaintiffs lawyers since the deal was announced and listened to their concerns.
"We saw some areas where concerns had arisen and we knew that clarity had to be provided," he said.
Since the deal’s announcement, attorneys for both sides have made other changes to the wording of the deal. Merck lawyer Doug Marvin said the amendments are "largely clarifications of the parties’ original intentions."
Tuesday’s registration deadline was for lawyers to provide details of each client’s case, which Merck will use to determine if a claim is valid. Feb. 29 is the first deadline for claimants to enroll and commit to participating in the settlement. Merck is expected to start making payments in August.
Merck shares fell $1.88, or 3.4%, to $52.99 in afternoon trading Friday. They have traded in a 52-week range of $42.35 to $61.62.