Vioxx Settlement the Devil is in the Details
At 4:30 a.m. on November 9, 2007, Merck agreed to a purported $4.85 billion settlement. The agreement is 69 pages and has not yet been released publicly. At a hearing in New Orleans this morning the terms of the settlement were revealed.
(1) This is not a class action settlement. In order for a law firm to participate in the settlement, they have to agree to submit all of their cases through the settlement process;
(2) In order to qualify for payment under the Settlement a claimant has to prove: (a) Proof of ingestion of Vioxx for at least 30 days; and (b) Proof of having a heart attack, Ischemic stroke, or sudden cardiac death within 14 days of taking Vioxx;
Once a client meets these criteria they are guaranteed of receiving a monetary award under the settlement and the client goes to the assessment phase where they are awarded points or actually demerits for cardiac risk factors such as obesity, diabetes, high blood pressure, hyperlipedemia, age, etc… The client based on the point system is then awarded a settlement amount by the claims administrator. This claims process is to be completed in 18 months, and if the client believes the points were assessed incorrectly they can appeal to a special master.
If the client doesn't qualify for a monetary award under the settlement, they can then certify that the medical evidence they submitted is all the evidence they have and they can have their case tried to a jury. There is also a requirement of 85% participation of all the cases filed, and the 85% participation requirement only applies to cases filed in the MDL, cases filed in New Jersey, cases filed in California and cases filed in Texas.
This certainly does not look like it will end the litigation, but it is the beginning of the end game, How it will play out will be determined in the next couple of years. Nothing moves quickly in the Mass tort business
