Several plaintiffs’ lawyers have asked the federal judge overseeing the $4.85 billion Vioxx settlement to give them the freedom to keep some of their clients outside the settlement while allowing other clients to accept it.
Currently, if the lawyers want any clients to receive money from the settlement, they must recommend the deal to all their clients.
That provision was considered a crucial part of the settlement by Vioxx’s maker, the drug company Merck. Theodore V. H. Mayer, a lawyer for Merck, said that the company would oppose the motion and that the settlement had been carefully devised to be fair to plaintiffs and the company.
In an emergency motion to Judge Eldon E. Fallon of Federal District Court in New Orleans, the plaintiffs’ lawyers said the provision would prevent them from offering the best independent judgment for each client. Agreeing to the provision might open them to future lawsuits from disgruntled clients, they said.
"The settlement agreement, which allows Merck to dictate the advice a lawyer will offer, is improper in all states," the lawyers wrote in the motion, which was filed Monday.
Grant Kaiser, a Houston lawyer who represents about 1,800 plaintiffs, filed the motion. It was signed by 11 other firms that collectively represent another 4,200 plaintiffs – about 10 percent of all the people who have sued Merck over Vioxx. Mr. Kaiser declined to comment on the motion.
Merck and several large plaintiffs’ law firms agreed to the settlement last month as a way to resolve more than 50,000 claims from people who assert that Vioxx, a painkiller withdrawn from the market in 2004, caused them to suffer heart attacks and strokes. Merck had won most of the 18 lawsuits that reached juries in both state and federal court.
The requirement that lawyers agree to recommend the deal to all their clients – and withdraw from representing those who do not agree – is a crucial part of the agreement.
Merck wants lawyers to put all their clients into it so that it will not face the prospect that they will settle their weaker claims while withholding their stronger cases for trial. Merck also wants to be sure that plaintiffs who do choose to go ahead will have to find new lawyers, a process that will probably be difficult because the firms with the most experience in the case are all part of the agreement.
"We knew this was a key component, a primary component of the settlement," said Andy Birchfield, an Alabama lawyer whose firm began suing Merck over Vioxx in 2001. "It had to be a case where the lawyers were not cherry picking."
For the deal to take effect, 85 percent of all plaintiffs, as well as 85 percent of plaintiffs who have stronger cases because they took the drug continuously for more than a year, must agree to its terms.
But Benjamin Zipursky, a professor at Fordham Law School who has followed the case, said the all-or-nothing requirement might pose ethical problems.
"The question is, Is this really independent advice given to each client if the lawyer obligates himself or herself to say this to all the clients?" Mr. Zipursky said.
Mr. Mayer, the Merck lawyer, said the federal court might not be able to change the settlement, since the Vioxx cases were not being tried as a class action, in which any overall settlement requires judicial approval. He declined to say what the company would do if Judge Fallon ordered the two sides to change the agreement.
Mr. Birchfield and other lawyers who have agreed to the deal said they had good reasons to accept the requirement. As a practical matter, plaintiffs will not be well served by bringing cases to court, given Merck’s strong record, said Christopher A. Seeger, a plaintiffs’ lawyer who was on the negotiating committee that helped devise the deal.
"We’ve tried 18 of these cases, and these plaintiffs have lost most of them," Mr. Seeger said.
The motion will be heard in mid-January.