San Francisco plaintiff attorney Robert Cartwright Jr. wasn’t griping Friday about having to wait more than five years – and counting – for trial in more than two dozen suits he filed over the painkiller Vioxx.

If the $4.85 billion settlement that Vioxx maker Merck & Co. announced on Friday is approved, Cartwright said he thinks all 29 of his cases will qualify for a payout.
“For the lawyers who got in on the earlier phase of [the litigation], almost all of those cases will qualify,” he said.

The Vioxx litigation against Merck began in 2001, but exploded after the company took the prescription painkiller off the market in 2004. Since then, Merck has been hit with about 26,600 suits, according to company documents.

The agreement, reached between the company and representative plaintiff lawyers, is expected to resolve thousands of state and federal suits that claim the drug caused patients to suffer heart attacks and strokes.

It creates a $4 billion fund for plaintiffs who suffered heart attacks and an $850 million fund for those who experienced ischemic strokes. Though individual payouts will depend on the number of claimants, and that number is unknown, some California plaintiff lawyers said they thought the settlement was fair.

“All the plaintiff attorneys I’ve talked to are recommending this settlement to their clients,” said Thomas Brandi, of San Francisco’s Brandi Law Firm.

Last year, Brandi and another plaintiff attorney tried a pair of Vioxx suits in Los Angeles but wound up with a hung jury. The case was set for a retrial in January, but Brandi said he would not regret missing a second chance before the jury.

“I think this is a better result for all par-ties involved. It provides plaintiffs who are legitimately injured an opportunity for compensation,” he said.

Only plaintiffs who filed suits by Nov. 8 qualify to participate in the Vioxx settlement, and at least 85 percent of those plain-tiffs have to accept the settlement terms by March for the agreement to take effect.

To collect a payment, plaintiffs will have to show “objective, medical proof” of having suffered a heart attack or stroke, documentation that they received at least 30 Vioxx pills, and evidence that they ingested the pills within 14 days of injury.

According to the agreement, Merck does not admit causation or fault.

Frank Pitre, of Burlingame’s Cotchett, Pitre & McCarthy, said the Vioxx settlement vindicates his firm’s approach of selectively choosing which plaintiffs to represent while sacrificing a large inventory of cases. While some attorneys took on more than 100 cases, Pitre said, he filed only 12.

“We wanted to see people with docu-mented proof of [using Vioxx for] a year or longer,” Pitre said.

Of 21 cases that have already gone to trial, there were some plaintiff victories – including a whopping one in Texas, where plaintiffs lawyer W. Mark Lanier of the Lanier Law Firm won a $234.4 million verdict in 2005, representing a widow of a man who died after taking Vioxx. (The verdict is expected to be reduced.)

But Merck continued to fight. Of the 20 cases tried since, 15 ended in defense verdicts or hung juries.

Merck’s success in the courtroom was a stick that it used in negotiations with the plaintiffs. “We’ve seen that proving causation is challenging,” said Andy Birchfield Jr., of Beasley, Allen, Crow, Methvin, Portis & Miles, a key negotiator for the plaintiffs.

The settlement, coming after a year of negotiations, was announced Friday in New Orleans just before a status conference was scheduled in front of U.S. District Judge Eldon Fallon who had been supervising the federal multi-district litigation docket.

The agreement honors the contingency fee arrangements plaintiff lawyers have with their individual clients. They can be as much as 40 percent of any award. In addition, a small group of lawyers who worked on preparing discovery and taking depositions common to all the cases have asked Judge Fallon for a maximum of eight percent of all attorneys fees awarded.

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