Vioxx Settlement

On November 9, 2007, Merck & Co., Inc. (Merck), the manufacturer of Vioxx, announced that it had entered into a settlement agreement in which it agreed to pay $4.85 billion into a settlement fund to resolve qualifying claims. Merck did not admit any fault, liability or wrongdoing, and will continue to defend all claims that are not part of the settlement process. If you have a pending claim against Merck and have questions about how this settlement will affect you, contact a lawyer who has experience handling Vioxx cases.

Provisions of the Vioxx Settlement Agreement

The Settlement Agreement ("Agreement") is between Merck and the law firms of the executive committee of the Plaintiffs' Steering Committee of the federal multidistrict litigation over Vioxx and representative plaintiffs' counsel in coordinated state proceedings involving the myocardial infarction (MI) and ischemic stroke claims filed against Merck. The agreement applies to cases filed or tolled on or before November 8, 2007. You can view the Agreement at http://www.merck.com/newsroom/Vioxx/pdf/Settlement_Agreement.pdf.

Qualification: To qualify for payment under the Agreement, a plaintiff will have to pass through three gates. The first gate is an injury gate, which requires objective, medical proof of myocardial infarction or ischemic stroke. The second gate is a duration gate based on documented receipt of at least 30 Vioxx pills. The final gate is a proximity gate, which requires receipt of Vioxx pills in a sufficient number and proximity to the adverse event to support a presumption that the plaintiff took Vioxx within 14 days before the claimed injury. Each plaintiff will have his or her case individually reviewed by administrators to determine qualification based on documented facts provided by the plaintiffs.

Recommendation: The Agreement provides that law firms on the Plaintiffs' Steering Committees (both state and federal) and firms that have tried cases in the coordinated Vioxx proceedings must recommend enrollment in the settlement program to all of their Vioxx clients who are alleging either myocardial infarction or ischemic stroke.

Obligation to pay: Merck's obligation to pay is only triggered if, by March 1, 2008, certain conditions are met. By this date, unless Merck extends it, plaintiffs comprising the following must enroll in the settlement process: 85% or more of all currently pending and tolled myocardial infarction claims; 85% or more of all currently pending and tolled ischemic stoke claims; 85% or more of all eligible claims involving a death; and 85% or more of all eligible claims alleging more than 12 months of use. The Agreement only applies to legal US residents who allege that their injury occurred in the US.

Payment: Merck agrees to pay a total of $4.85 billion under the Agreement. There will be separate funds for myocardial infarction claims ($4 billion) and ischemic stroke claims ($850 million). The $4.85 billion amount will be allocated among qualifying plaintiffs based on their individual evaluations.

Time for payment: It is estimated that myocardial infarction claims could begin being paid as early as August 2008, and will be paid over a period of time.

If any conditions in the Agreement are not met, Merck has the right to end the settlement process without paying any of the plaintiffs and defend each claim individually. See "Merck Agreement to Resolve U.S. Vioxx Product Lawsuits" dated Nov. 9, 2007, available at http://www.merck.com/newsroom/press_releases/corporate/2007_1109.html.

Conclusion

The Agreement is long and its provisions can be confusing. If you have questions about the Agreement or whether you will qualify under its terms, talk to an attorney who has experience handling Vioxx product liability cases.

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