Vioxx deal faces pitfalls

Merck's good news? It looks as if enough plaintiffs will sign on to the $4.85 billion Vioxx settlement. Merck's bad news? Some plaintiffs are opting out, and some lawyers are challenging settlement provisions designed to prevent that. Translation: Merck probably will be on the hook for the $4.85 billion, plus additional litigation and possibly more settlement costs.

You'll recall that Merck's settlement offer had to be accepted by at least 85 percent of the 45,000 patients that qualify. To discourage plaintiffs from opting out--and lawyers from cherry-picking cases that might win in court--the deal included a provision that requires any lawyer who participates to recommend that all his qualifying clients settle. If any refuse, the lawyer would have to drop them as clients.

So far, 28,000 plaintiffs have registered (not all may qualify for the settlement, however). Merck lawyers are "encouraged" that the settlement threshold will be met. But law firms representing thousands of others are objecting to the accept-or-else coercion. They're also disturbed by the fact that, for a plaintiff to be paid, his or her lawyer must sign a document saying they aren't involved in any other Vioxx cases--making it difficult for those plaintiffs who opt out of the deal to find any attorney willing and ready to represent them.

But observers say that even if the provision is dropped from the deal, Merck is still likely to be better off than it would be fighting all the cases in court. And the company would look a lot less Big Bad Wolf-ish, too.

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