The New York Times is reporting that several plaintiff’s lawyers have “asked the federal judge overseeing the $4.85 billion Vioxx settlement to give them the freedom to keep some of their clients outside the settlement while still allowing other clients to accept it.”
One portion of the proposed agreement has been a big problem for a number of lawyers representing Vioxx plaintiffs. Merck is demanding that lawyers advise ALL their clients to accept the agreement. The obvious problem for the lawyers is that while the agreement might be best for some of the clients, it won’t necessarily be best for all of them. So the lawyer is put in a position of deliberately giving bad advice to some clients — a grievable offense. Here are excerpts from the article:
In an emergency motion with Judge Eldon E. Fallon of Federal District Court in New Orleans, the plaintiffs’ lawyers said the provision would prevent them from offering the best independent judgment for each client. Agreeing to the provision might open them to future lawsuits from disgruntled clients, they said.
“The Settlement Agreement, which allows Merck to dictate the advice a lawyer will offer, is improper in all states,” the lawyers wrote in the motion, which was filed Monday.
Merck and several large plaintiffs’ law firms agreed to the settlement last month as a way to resolve more than 50,000 claims from people who assert that Vioxx, a painkiller that was pulled from the market in 2004, caused them to suffer heart attacks and strokes. Merck had won most of the 18 suits that reached juries in both state and federal court.
The requirement that lawyers agree to recommend the deal to all their clients — and withdraw from representing those who do not agree — is a crucial part of the agreement.
Merck wants lawyers to put all their clients into it so that it will not face the prospect that they will settle their weaker claims while withholding their stronger cases for trial in the future. Merck also wants to be sure that plaintiffs who do choose to go ahead will have to find new lawyers, a process that will probably be difficult because the firms with the most experience in the case are all part of the agreement.
For the deal to take effect, 85 percent of all plaintiffs, as well as 85 percent of plaintiffs who have stronger cases because they took the drug continuously for more than a year, must agree to its terms.
But Benjamin Zipursky, a professor at Fordham Law School who has closely followed the case, said the all-or-nothing requirement might pose ethical problems.
“The question is, is this really independent advice given to each client if the lawyer obligates himself or herself to say this to all the clients,” Mr. Zipursky said.
Mr. Mayer, the Merck lawyer, said the federal court might not be able to change the settlement, since the Vioxx cases were not being tried as a class action, in which any overall settlement requires judicial approval. He declined to say what the company would do if Judge Fallon ordered the two sides to change the agreement.
The motion will be heard in mid-January.