We Agreed to It But You Can’t Enforce It Because It Is Unethical: The Vioxx Settlement

Plaintiffs’ lawyers in the Vioxx litigation are running away from a key term in an agreement that was signed about twenty minutes ago – the requirement that plaintiffs’ lawyers advise either all or none of their clients to accept the deal.

Think about that for a second. The quality of Vioxx cases varies wildly because the most difficult part of making the case was proving specific causation for the individual plaintiffs. Lawyers with clients injured by Vioxx are required by the agreement to give the same advice to all of their clients.

A first year law student can figure out that this is unethical. How this group of plaintiffs’ lawyers, some of whom are amongst the most talented lawyers the plaintiffs’ bar has to offer, could have agreed to this in the first place is incredible.

It is easy to understand why Vioxx’s lawyers would like to have such a provision in the agreement. Eighty-five percent of the pending cases must settle under the current agreement for the settlement to be effective. But the value of the remaining 15% is still quite high because the very best cases – young people at low risk for heart disease would appear to be the best cases – can opt out of the settlement.

The agreement has another provision that I think is unethical because it bars lawyers with participating clients from representing the others who opt out of the deal and continue with their lawsuits. This is going to completely screw the people who suffered the most in these cases because it will deny those people access to Vioxx lawyers with experience to prepare and try a Vioxx case. By contact, lawyers are selling out their clients who will no longer have a lawyer to handle their case. Ironically and tragically, many of these people are the clients who have suffered the most and who are now going to struggle to find competent counsel.

Thankfully, there is time to sort out this whole mess. No, wait, there is virtually no time at all. The deadline to submit these claims is next week, January 15th. Plaintiffs who hope to qualify for shares of the settlement must submit the details of their case on or before this date. They must commit to the settlement by March 1. Merck is expected to start making payments in August. This is a complete mess. I hope the court lets the plaintiffs’ lawyers out of this mess but, if not, this is a debacle of their own doing.

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