Vioxx Class Action Settlement Now Paid

Vioxx claims now paid

Payment in Canada Class Action was made and cheques are going out to pay those with successful claims. As of July 28th we have mailed out all cheques for stroke victims and we are continuing work on finalizing remaining claims.

It has been a long and difficult journey of almost 12 years since the recall of the anti-inflammatory drug Vioxx.  The case in Canada started with the recall of the drug at Halloween of 2004 and it took until Canada Day of 2016 when the claims were finally paid.  On June 29, 2016 a Purolator courier arrived at the Miskin Law Office bearing a letter and one cheque for payment of the law firm’s Vioxx successful claimants. The Miskin Law firm represents 10% of all successful Vioxx claimants with clients in every Province of Canada.  Each individual client was personally billed and our firm has completed payment to over 300 individual claimants plus beneficiaries of estates of victims.

While most claimants and lawyers are disappointed with the amount we are all happy it is finally, after many delays, actually paid.  Our expectations were raised in November 2007 with a large and generous settlement for victims in the United States totalling $4.55 billion in US funds.  Some claimants who survived heart attacks and strokes connected to Vioxx did not live long enough to see the money.  For those people their families will receive the compensation.  For many people, including most of our law firm’s clients, there is no compensation under the terms of the settlement.  For successful stroke claimants the settlement which was capped at $5,000, but is paying less, is almost an insult.  Nevertheless, Canadians are fortunate compared to Australian claimants who were paid less than Canadians. In the UK no settlement was achieved and the case is abandoned.  In every other country in the world victims of Vioxx are getting nothing at all.  Meanwhile, earlier this year a settlement of 830 Million US dollars was reached for Merck shareholders who lost money on their investment due to Vioxx.

The Canadian settlement pays 903 victims and 1306 family members of victims a total amount of $15,384,154 Canadian dollars.  This is the amount paid after administrative costs of the settlement and fees and expenses of the class action lawyers. Except for stroke claims, amounts paid for claims vary, but are based on a points assessment for each claim with a maximum of 100 points for a heart attack or sudden cardiac death victim.  Points are reduced by the risk factors of the victim. The assessment process was completed last year so all we needed to know to determine the value of a claim was the value of a point.  This is a simple process where the total dollars available are divided by the total number of points awarded.  We now know that a point is worth $388.69.  That means that a total of about 39,580 points were awarded for all claims.

To determine the value of a point it was necessary to wait for a court approval process related to the fees of the Class Action lawyers.  When the original court approval was given to the settlement $6,000,000 was allowed for those lawyers with the right to come back at the end of the process to request more money which, of course, they did.  This took time due to the reluctance of the court in Quebec to approve the additional fees.  The Quebec Judge finally relented and agreed to the additional fees mainly because he did not want to rule against what the courts in other Provinces had already approved.  This gave an additional $2,800,000 to the lawyers for fees.  By allowing this the value of each point was reduced by about $70.74.  These legal fees will be split by a large group of lawyers across Canada who issued claims on behalf of representative claimants in every province. This was the compensation to those lawyers as approved by the courts for working on and advancing the class action proceeding.  The Miskin Law firm as a policy prefers individual claims rather than class actions and chose not to be part of that group.  Instead Miskin Law Office represented a large number of individual victims of the drug.

The amounts paid represent $3,886.90 for each stroke claimant.  For the few with the maximum 100 points for heart attack or sudden cardiac death the maximum individual compensation of $38,869 is paid.  The family members of non-stroke victims are entitled to a small percentage of the amount awarded to their parent or spouse.  Where the victim is no longer alive money will be paid to their beneficiaries (usually immediate family).  The amount paid does not include any payment for the cost of medical, pharmacy, insurance and other records and documents obtained to prove the claim and that amount varies from case to case. Those expenses have been paid by the lawyers who will be reimbursed from the awards to their successful clients.  With contingency fees applying the lawyers do not get reimbursed or charge any fee for unsuccessful claims.  Most individual Vioxx claimants have lawyers who put forward the claims on their behalf and who typically charge about one third of the amount paid after deduction of the expenses from the amount received.  They must also charge GST and applicable provincial sales taxes or HST on legal fees.  This does not leave much for the victims. Fortunately victims and their families do not pay income tax on what they receive.

We can ask what went wrong in the Vioxx case, so that victims have so little to show for their serious injury.  What went wrong is what happens in most Canadian class action proceedings. In Canada we have a class action system where years can be wasted in battles between class action lawyers over who will have carriage (control) over the proceedings.  This happened in the Vioxx case.  Merck also fought very hard to stop the class action from proceeding losing every step of the way but appealing the decisions as far as they could.  By the time settlement discussions began the known science around Vioxx had developed so that the link to stroke was very weak.  As well, it became known that there was almost as much risk of heart attack from other anti-inflammatory drugs as there was from the Cox-2 inhibitors such as Vioxx and other drugs like Bextra and Celebrex.  Celebrex remains on the market and Bextra which is more similar in strength and chemical structure was recalled soon after Vioxx. With much less publicity and no lawyer infighting claims in Canada related to those drugs settled sooner than Vioxx with claimants receiving more money.

Comparing the Canadian system to the American system shows a serious weakness in our system which allows for major delays to the detriment of claimants.  In the USA claims are brought on an individual basis for each individual and when there are many claims they are co-ordinated through the courts. It is called “Multi District Litigation” or “MDL”.  Individual cases can proceed quickly and that is what happened with Vioxx.  The first trial in Texas resulted in a huge judgment against Merck.  Other cases were tried with mixed results and Merck faced the possibility of hundreds of trials within a few years of the recall of Vioxx.  They chose to settle and pay large amounts to all US victims with Canadians and other foreign claimants excluded from the settlement.  Knowing how the system works the Miskin Law Office tried to get as many claims as possible brought in the US courts.  Unfortunately, we could not proceed that way and were forced back into the class action.  We also had some clients opt out of the Canadian class action hoping that we could get better results if we had individual claims.  That did not work out as the Class Action settlement brought back all of the opted out claims.  We were then at the mercy of the class action process and the terms of settlement.

Miskin Law Offices will continue to represent individual clients in drug liability and other product injury cases, and we will continue to try to get better compensation where possible for our clients than the class action system brings.  Much has been learned from the Vioxx case and hopefully it will lead to a better system for similar types of claims brought in the future.

37 Comments

  • Sherri says:

    How would one be able to find out if a claim has been filed on behalf of a loved one who passed away from lung cancer related to asbestos poisoning? My father passed away in 2004 and I have no idea if my step-mother made a claim or not. As the daughter of someone who was affected by asbestos poisoning, would myself and my siblings be able to file a claim?

    • admin says:

      There are time limits for claims and it would be too late now to file claims if they were not already made. To make a claim a person must have authority on behalf of the estate of the deceased.

  • Geoff Williams says:

    I must say it has been a relief not to be thinking about any subjects that include the words “Vioxx” or “Class Action” or such related matters. After having spent nearly 12 years wondering what if anything would result from this extraordinary situation this will probably be my last thought on the affair. A final thank you to you and your staff for keeping us up to date on what was ( or more likely was not) going on. I imagine that you had to sort out a few of the emails you received in order to avoid publishing some very “earthy” language. I am amazed to see that my final settlement was not far short of the maximum paid out even though it represents about $7.50 per day for the 12 years or so that I suffered through. Although I might have received up to 30 times the amount should I have been claiming in the States I am still happy to be in Canada . I think that working without a lawyer was good for my state of mind and gave me something to do over all those years ( and saved me a few thousand dollars). I am interested to see your comments about the state of Class Actions in Canada and have read other sites which have long held the same sense of frustration. Are you yourself able or willing to start working for changes in the laws or do you have any comments for those of us who may be interested in sharing our experiences with the public at large? I hope you are now able to resume a normal life. Best regards. Geoff

  • John M Savigny says:

    Our family’s claim was filed originally in the US before the Canadian claims were separated to be on their own. Does this mean we have to pay legal fees in both the US and Canada too? I have asked this question to our legal firm and nobody has answered yet. It is a very sad state of affairs indeed.

    • admin says:

      Your fee may be split but it will almost certainly be based on the Canadian settlement at an agreed percentage of what you are paid on the claim.

  • Darlene says:

    I am being told by my law firm that the cheque for my husband’s estate can not be issued until the original will is probated. It was never probated because all assets were joint. Approx. cost is another $2000 added to the cost of present legal fees. Is this a requirement of the law firm or of the class action settlement courts? Has anyone else experienced this expensive delay?

    • admin says:

      We are not aware of a probate requirement. We have distributed funds based on Wills that have not been through probate and where there is no Will we are still able to distribute to families based on the laws of succession. We are based in Ontario and do not know which Province’s laws would apply to you.

      • Darlene says:

        The laws of Manitoba would apply to me. I am still dealing with this issue because I am not able to locate the original will, only the notarized copy. It has been 14 years since my husband died. Any information you could give me, as to how the laws in Manitoba make probate necessary, would be helpful.

  • ian w cann says:

    I strongly believe that there is a BIG cover up. You don’t see anything in the media or youtube. Some people got paid except for those who got hurt or are now gone. BULL SHIT SYSTEM!!!!!!!!! Where is the JUSTICE for the families.

  • Christopher Carmickle says:

    I’m A USA citizen, I had 4 strokes, three Heart attacks, took vioxx for the whole time it was on the Market, I Never Agreed to this settlement. I am paralyzed for life they tried to give me $5,000 for all of this. After all deductions, the check amount came to $1,500. I did not accept the check which is still sitting at the lawyer’s office to this day and also lawyers got paid twice in the US. I never signed anything with the lawyer agreeing to the settlement. I do not know what to do and have never found a lawyer to take this case since I had received notification in 2010 of the $1,500 check but never picked it up, nor signed the closing statement for the $1,500. Please can somebody help me? With all of my medical conditions, I don’t know what to do?

    • admin says:

      It is not clear if your check (in Canada: cheque) is from the US settlement or the Canadian settlement. Either way it is too late to get more and your specific agreement to the settlement was not required as it was a settlement for all claimants. It is too late now to dispute the amount so we suggest that you get the money that is waiting for you rather than leave it.

  • kim roy says:

    we just got our check and were dinged twice by the lawyer 25 percent by the first one and 25 percent when it was transferred to another law firm . Also a question is there any way to get back the hst from the government.
    thanks for your help

    • admin says:

      You and your lawyers are bound by the fee agreement signed on retainer. Check it carefully for compliance with it in the lawyers’ bills. There is no way you can legally avoid the sales tax you are charged but the good news is the money you do receive is free of income tax.

  • Bruce Smith says:

    When will cheques be sent out???

    • admin says:

      Cheques have been sent out and continue to be sent out by our office every day as we process the payments as fast as we can. I am sure all other lawyers are doing the same as they are not allowed to take the fee until they have completed a bill and sent out the money to the clients.

  • Mary Jane Debarro says:

    I see no answer to the above question as to when we should expect payment.

  • Suzanne DeGasperis says:

    Im just wondering when the cheques will be mailed. Thanks Murray. You have been terrific.

  • Steven seeds says:

    I have contacted CBC with our story and hopefully they will put it on the “Only in Canada” weekly segment of the national. I do think that we, the victims, are entitled to know why Amercans got 30k per point and we got less than 1k per point and how could lawyers profit so much from our misery?

    • admin says:

      The American lawyers also worked for a percentage of the settlement and made 30 times as much as the Canadian lawyers. In the US the Vioxx case was won. In Canada after a much longer and more painful process the case was salvaged.

  • Arthur Griffiths says:

    I must admit to being a bit confused. I understood at the first mention of the settlement that the original total was in the area of $43 million. That has diminished now to just under $16 million.

    On this site it was stated that an amount was paid to provincial governments for medical costs. At that time what was the number of complainants.? The remaining 903, or more. What interest has been earned while the money was in escrow.?
    Will we be receiving a set of financial statements outlining the disbursements.?

    There are too many areas where disclosure
    has been too vague.

    Oh, by the way, how come the notice of your receiving the check failed to appear on my computer system until July 14th.?

    Do I have to report a system failure to Microsoft.

    • admin says:

      The gross amount of the settlement would have been up to $37M if there were more successful claims it was never to be more. There are many claimants who had their claims turned down on assessment and who otherwise did not qualify to make a claim. The amount of claims in a class action is not ever known in advance. The settlement included a set amount for the government health insurers. It also included $6M for the class action lawyers’ fees but they were able to get more ordered to them by the court so that the amount left over for paying all claims is under $16M. Some computer settings do not give people an update every time they check a web page. You can check your settings and change them so they show updates to web pages as soon as they are made. If I can ever get a statement with a full breakdown of the amounts paid and interest earned we will make it available to people.

  • Doug in YVR says:

    ‘Class action’ lawyers have got $8.8m and victims get what’s left over. If your lawyer is not ‘class action’, is he then entitled to his 30%, paid out of the $388.69? In which case, the victim has, in effect, paid legal fees twice. This cannot possibly be just. Am I misunderstanding something here? BTW, many thanks for this website and updates.

    • admin says:

      If your lawyer is one of the class action lawyers they are paid twice. Once as their share of the class action lawyers’ amount and again as a lawyer getting their percentage of a personal recovery.

  • kim roy says:

    why should we pay hst on this settlement and also why should the medical people be paid . every person that spent time in the hospital already in some way paid through taxes . they even had to buy the drug that killed them. This was an award to the victoms and you don’t get gst charges on a lottery and this I feel is the same thing. the government double dipped in this case.. and if it was due to lawyer fees they should have paid the hst out of there own pockets they made enough . We personally went thru 4 different law firms and I suppose everyone of them got money.thanks for your time

    • admin says:

      The settlement was intended to be in part for victims and in part for the provincial health insurers who had to pay out medical expenses for the victims. HST is charged on legal fees and there is nothing anyone can do about that. For victims in Quebec there is an additional percentage taken off of the gross amount to each victim for a tax. This is Canada!

  • Norman Dean Stewart says:

    Thanks to Miskin law office and the lawyers who worked on this case. What I get is better than what I would have got if I did nothing as was going to be the case. Someone told me about this class action and I figured, what the hell, got nothing to lose. Didn’t cost me a cent of my own money and little of my time.
    Greed is the controlling factor in most of our lives. Too bad.

  • Debbie Barton says:

    When do you think your office will be releasing cheques?

    • admin says:

      We will have some ready to go next week but delivery may be tricky depending what happens with Canada Post. We are working on alternatives to mailing out the cheques. We should know soon if the mail will be stopped. An update will follow.

  • brian says:

    Thanks for the info. I appreciate the reply. So when will the money come? After vioxx, I lost my wife, home, job, savings and now exist on $1100 a month on disability which I had a four year fight to receive. So even the pittance is needed. When?

    • admin says:

      Hopefully we will have yours next week. Because you live far away it will go courier unless the postal issues are resolved. For people closer to us we can arrange for people to come and pick them up at our office for the fastest receipt.

  • JAMES says:

    Should you not be making it your #1 priority to work hard at processingthe cheques

  • Margaret Brauer says:

    In view of the impending mail strike. When and by what method can we expect to receive the settlement? Thank you Murray for the information you have provided to us over the years. While the settlement is very disappointing I am very grateful that it will finally be over. I am saddened that my husband did not live to see it.

  • brian says:

    So, there was 37 million. Now 15 million is left. Where did the 23 million go? Also does this mean I paid for those lawyers as well as your firm? Actually paying twice? And lastly, when exactly will this be paid to the people who suffered life altering damage? Angry, just a bit considering what was dangled in the beginning. And contacting law societies was a waste of time as one needs to fill out forms on individual lawyers. I did not complain about you Murray, but this seems unfair that over fifty percent went to arguably unethical people.

    • admin says:

      Hi Brian, The number in total was 28.6 million dollars which would have gone up to a maximum of just under 37 million dollars if there were more successful claimants than there were. If that happened the amount each person gets would still be low like it is because it would be divided between more people. The amount paid includes costs of claims administration of about one million, 3.5 million for provincial health insurers, almost 9 million dollars for the class action lawyers fees and expenses. The fees are actually comparatively low based on the work time of the class action lawyers but are the maximum a court would normally allow as a percentage of the settlement because of the low total dollars. The real reason for low recovery for victims is a result of the low amount of the total settlement. When the settlement was made I was assured by the class action lawyers that it was the best they could do at the time.

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