Three years after withdrawing its pain medication Vioxx from the
market, Merck has agreed to pay $4.85 billion to settle 27,000
lawsuits by people who claim they or their family members suffered
injury or died after taking the drug, according to two lawyers with
direct knowledge of the matter.
The settlement, one of the largest ever in civil litigation, comes
after nearly 20 Vioxx civil trials over the last two years from New
Jersey to California. After losing a $253 million verdict in the first
case, Merck has won most of the rest of the cases that reached juries,
giving plaintiffs little choice but to settle.
The settlement will help put Vioxx behind Merck, as well as sharply
reduce its Vioxx-related legal defense fees, which are now running at
more than $600 million annually.
Judges in Louisiana, New Jersey and California, who oversee nearly all
the lawsuits, had pressed for a deal before a new wave of trials was
scheduled to begin in January.
The agreement could still collapse, though lawyers with knowledge of
the deal said that was unlikely. The deal becomes binding only if 85
percent of all plaintiffs agree to drop their cases and take the
Plaintiffs will receive different settlement payments depending on the
severity of their injuries and the length of time they took Vioxx.
"We've been asked by the judge to talk to the plaintiffs and we
are talking to them," Kent Jarrell, a spokesman for Merck, said at
12:30 Friday morning. "Right now, there is no finalized
Two lawyers with knowledge of the deal, however, confirmed it
Based on the fact that the 27,000 suits cover about 47,000 sets of
plaintiffs, the average plaintiff will receive just over $100,000
before legal fees and expenses, which usually swallow between 30 and
50 percent of payments to plaintiffs. Plaintiffs who do not want to
accept the settlement can pursue their own claims, but with so many of
the top trial lawyers in the United States agreeing to the deal, they
may have difficulty doing so.
After several weeks of negotiations, Merck reached the settlement with
lawyers who are on the steering committee that represents attorneys
for the plaintiffs who have sued Merck in federal court. Those
lawyers, and a handful of others, represent most of the 47,000
different groups of plaintiffs.
"It's a fantastic deal," said Danny Becnel, a Louisiana lawyer
who said he represented about 1,000 plaintiffs. Mr. Becnel credited
Judge Eldon E. Fallon of Federal District Court, who is overseeing the
federal lawsuits from his court in New Orleans, with pressing the two
sides to the table.
"He had everything to do with it," Mr. Becnel said. "He was
The settlement does not end the government investigations that Merck
faces, which include both civil and criminal inquires from several
states and the Justice Department.
But for Merck, which has already spent more than $1.2 billion on
Vioxx-related legal fees, the settlement will put to rest any fears
that Vioxx lawsuits might bankrupt the company, or even have a
significant financial impact. While eye-popping, the settlement
payment represents less than one year's profits for the company, the
third-largest American drug maker.
For plaintiffs, the settlement will provide a measure of vindication
and financial relief. And plaintiffs' firms will earn nearly $2
billion in fees at their standard rates of 33 percent to 40
But the agreement is far smaller than Wall Street analysts and lawyers
predicted when Merck withdrew Vioxx, and especially after the verdict
in the first case. In 2005, most analysts estimated that Merck's
ultimate liability in Vioxx would be between $10 billion and $25
Merck withdrew Vioxx from the market in September 2004, after a
clinical trial proved that it increased the risks of heart attacks and
strokes. But internal company documents showed that Merck's
scientists were concerned about the risks of Vioxx several years
earlier. And a large clinical trial that ended in 2000 also showed
that Vioxx was much riskier than naproxen, an older painkiller sold
under the name Aleve.
The settlement vindicates Merck's risky decision to take cases to
trial rather than agree to a quick, early settlement. By aggressively
defending itself, Merck exposed the weaknesses in many plaintiffs'
cases. Some plaintiffs could not prove they had taken the drug, and
others were overweight, smoked, or had other risk factors for heart
That strategy looked as though it had badly backfired in August 2005,
when a jury in Angleton, Tex., returned a verdict of $253.5 million on
behalf of Carol Ernst, whose husband, Robert, had died after taking
Vioxx for less than a year.
But Merck decided to
stick to its strategy, continuing to insist it would not settle cases.
And in a series of cases in 2006 and 2007, Merck defeated plaintiffs
in California, Florida, New Jersey, Illinois and Louisiana, while
losing only a handful of cases.
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