Vioxx Settlement Could Be Problematic for Some

Scott Kappes

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An agreement was reached to settle the overwhelming majority of cases resulting from injuries related to Vioxx. Many have carefully examined wording of the agreement and it seems that Merck may have ended up in a better position than once speculated. The $4.85 billion deal includes a peculiar provision that says if a lawyer has one client enroll in the deal, the attorney must recommend the deal to all clients having Vioxx claims. The lawyer must then stop representing any of those who refuse to enroll in the deal. This could be quite problematic for those attorneys planning to save their best cases to try individually and for those injured individuals who would like to reject the deal offered by Merck.

"If the price of exercising what should be their right to reject the settlement means they have to forfeit their representation from the lawyer actually familiar with the case, it's not exactly an uncoerced choice," Deborah Rhode, an ethics professor at Stanford Law School, told the WSJ.

The deal does offer lawyers the attractive ability to have claims paid without going through a costly trial, however; it spares Merck the threat of a repeat of Wyeth's unbelievably costly Fen-Phen outcome. In the case of Fen-Phen, a $3.75 billion dollar claim was allotted to resolve a class-action settlement against the company, but attorneys opted out of the settlement and tried additional cases individually, costing Wyeth an estimated $21 billion in all.

The arrangement agreed to in principle here seems to be a tricky one. An attorney's obligation is to best serve his client not to encourage them to enter into a deal that the lawyer does not believe is the best option for the client. It is very difficult to see how an attorney could advise every client to accept this deal without an abundance of ethical issues being brought to the forefront.