Merck's Super Aspirin was Vioxx
THIS IS AN UPDATE OF INFORMATION ABOUT THE SETTLEMENT OF THE VIOXX CLASS ACTION NEGOTIATED WITH MERCK BY THE CANADIAN CLASS ACTION LAW FIRMS AND ANNOUNCED IN JANUARY 2012. THE SETTLEMENT IS CONDITIONAL ON COURT APPROVAL AND WE NOW ANTICIPATE THE COURT APPROVAL DATE WILL BE IN SEPTEMBER 2012.
Merck’s once popular anti-inflammatory drug Vioxx turned out to be a deadly drug for many people. It was voluntarily withdrawn and then recalled in 2004 with numerous lawsuits that followed, including, in Canada, a Class Action claim which took precedence over possible individual claims under Canadian law. Merck fought claims world wide settling in the USA only after a few years. Our firm brought some claims in the New Jersey court working with US lawyers on the cases. When the US case settled in November 2007 it was a term of settlement that all foreign claimants cases had to be dropped by the US lawyers. At that point the judge handling the case had already ruled that British claimants should proceed in the court of their own country and we were expecting a similar decision for Canadians. We then had no choice but to wait for the Canadian class action which had been delayed by arguments between lawyers over which law firm would manage the case and then by Merck’s procedural delays and appeals. When the Canadian case was finally certified to proceed with no further right to appeal some of our clients with stronger cases chose to opt out of the class action so they could make individual claims hoping for better settlements.
In Australia last year Merck did well after a major test case trial which found liability only in heart attack situations and specifically concluded after much expert evidence that there is no proof that Vioxx causes strokes or other cardiovascular problems. The Judge ordered compensation in a heart attack case but that was overturned on appeal by Merck. The negative finding in stroke cases was not even appealed as the evidence was clearly not enough for proof. It was after the Australian case victory that Merck was ready to negotiate with the Canadian Class Action lawyers. The negotiations conducted on behalf of all persons in Canada claiming, resulted in a settlement agreement announced January 19, 2012. There is a national Vioxx settlement proposed for Court Approval which is to be heard in court in Ontario and Quebec. The amount of the settlement is proportionately much less than the US settlement on a per capita basis. It provides compensation up to $100,000 in heart attack and sudden cardiac death cases and pays an amount capped at $5,000 in ischemic stroke cases. Stroke compensation does not include payment for Transient Ischemic Attacks (TIA). Nothing is paid in the settlement for hemorrhagic strokes or other conditions. This settlement was negotiated with Merck by the Class Action lawyers not the law firms (like ours) representing individual clients. When a settlement agreement was reached by the negotiators it asked for persons who had opted out of the Class Action to agree to opt back in and accept the settlement. This happened as all the clients now represented by Canadian lawyers who had opted out agreed to accept the settlement. Our opted out clients were not prepared to take the high risk of proceeding with their own individual cases in court. Those who had not opted out of the Class Action were not given a choice. The case is not settled until and unless it receives court approval. Our firm acts for a large number of individual clients, and we are determining how each of our clients will benefit (or not) from the settlement). It is a complex settlement factoring dates of use in relation to the cardiac event and with numerous reductions based on risk factors. We have now written letters to most of our clients who do not qualify for compensation under the settlement to advise them of their rights. We have written to others where we need additional information to determine if they will be compensated and for some we are still trying to determine if there is eligibility. We have many clients who clearly benefit from the settlement and we are working to document their claims for compensation if the settlement is approved. For people who are not represented by lawyers yet, we are still on request, reviewing situations and accepting retainers in cases that are likely to qualify for compensation. See full details of the proposed settlement:
http://vioxxnationalclassaction.ca/
We will post official information as soon as it is available on the date, time and places where court settlement approval will be sought by the Merck lawyers and the Class Action lawyers. We now understand this is to happen in mid September 2012. Notices will also be posted in newspapers nationally about the court dates. Everyone who is affected has a right to be heard on this and the settlement is only to be approved by the court if it is believed to be in the best interests of Vioxx victims. We have heard from a number of angry clients and others who will receive little or no compensation if the settlement is approved. We also have clients who are happy with the settlement and that they will be compensated finally even where the compensation is not adequate. If you are not happy with the settlement do speak out and the court will consider what you have to say. Our firm is not in a position to take a position for or against the settlement as we have many clients who have conflicting views and we can not represent some to the detriment of others. We can not say that we are happy with this settlement. It is not as good a settlement as the one for users of Celebrex or Bextra who suffered similar harm. We encourage our unhappy clients to get advice and legal representation if they wish to oppose the settlement. To be fair to the class action lawyers it is their view that this is a good settlement which was the best that could be done given the nature of the case and the impact of the Australian court decision. Had Merck been willing to negotiate earlier there is no doubt that the settlement would be better. In the US the pressure of numerous cases being reached for trial put pressure on Merck to settle much sooner and for a lot more money for each claim.
Further to the Australian trial decision and appeal, the Australian High Court in May 2012 denied an attempt to appeal the dismissal of the claims and so that is the end for the Australian Vioxx case. Australia’s laws are similar to Canada’s and the Australian decision has a major legal impact on us. The decision gives much ammunition to the class action lawyers who argue that the Canadian settlement is a “very good one”. All of this will be considered by the Ontario and Quebec courts when the court approval application is heard. We do expect approval to be given to the settlement and after that claims will be processed. It is likely that the first settlement money will be received by claimants in early 2013.
Several months ago the NBC TV show Dateline NBC taped an episode including an interview with Pam Cottingham, one of our Vioxx clients, who suffered a serious stroke at age 43 following Vioxx use. That show was aired on Sunday March 4, 2012 and shows how a drug like Vioxx can still be approved. You can see the entire show below in six parts with the portion dealing with our client and the Vioxx settlement in Canada in Part One.
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We continue to act for everyone in our existing group of clients to get compensation and we are only taking on new cases which qualify under the tentative Canadian settlement. We invite comments on this post but all must be approved before being posted. Please be careful in the language that you use and please do not include your personal information in the post as whatever is posted here can be read by anyone.
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