Merck has offered to settle its Vioxx claims for $4.85 billion
Merck has offered to settle its Vioxx claims for $4.85 billion. The settlement agreement comes in spite of Merck’s insistence that it would fight all the 27,000 cases in court. The settlement is a global resolution of the Vioxx cases which most people understand as a class action settlement. Merck has been very careful in stating this is not a class action settlement but rather provides a funding pool where claimants are awarded compensation depending upon the nature and severity of their case. Merck and the plaintiffs have established two criteria for acceptance into the agreement:
- To qualify, claimants will have to pass three gates: an injury gate requiring objective, medical proof of MI or ischemic stroke (as defined in the agreement), a duration gate based on documented receipt of at least 30 VIOXX pills, within 60 days prior to the injury and a proximity gate requiring receipt of pills in sufficient number and proximity to the event to support a presumption of ingestion of VIOXX within 14 days before the claimed injury;
- Individual cases will be examined by administrators of the resolution process to determine qualification based on objective, documented facts provided by claimants, including records sufficient for a scientific evaluation of independent risk factors;
- The agreement provides that Merck does not admit causation or fault;
- Neither stroke claims that are hemorrhagic in nature nor transient ischemic attacks will qualify;
- Law firms on the federal and state Plaintiffs’ Steering Committees and firms that have tried cases in the coordinated proceedings must recommend enrollment in the program to 100 percent of their clients who allege either MI or ischemic stroke;
- The parties agree to seek court orders from the four coordination judges requiring plaintiffs’ attorneys to promptly register all of their VIOXX claims, whether filed or tolled, and to identify the alleged injury – in order to establish the universe of all existing claims in the United States;
- Participation conditions: payment obligations under the agreement will be triggered only if, by March 1, 2008 (subject to extension by Merck), plaintiffs enroll in the settlement process: (a) 85 percent or more of all currently pending and tolled MI claims, (b) 85 percent or more of all currently pending and tolled ischemic stroke claims; (c) 85 percent or more of all eligible claims involving a death; and (d) 85 percent or more of all eligible claims alleging more than 12 months of use; and
- This agreement applies only to U.S. legal residents and those who allege that their MI or ischemic stroke occurred in the United States.
- Merck recalled Vioxx in September 2004 after a study revealed that it doubled the risk of heart attacks and strokes for those taking the drug for more than 18 months. Since Vioxx was pulled from the marketplace, its manufacturer Merck has won 11 cases and lost 5 in court. Merck does not admit liability for the heart attacks and strokes in the global settlement agreement.
Individual claims will be handled by a claims administrator who will ultimately determine the specific awards for individual Vioxx claims. As in other global settlements or class action cases, individuals will have the option of “opting out” of the agreement to pursue their claims in court.