In re Vioxx Products Liability Litigation

Thousands of users of the drug Vioxx (plaintiffs) sued Vioxx’s manufacturer, Merck (defendant), after clinical trial data indicated that Vioxx-use increased a patient’s risk of heart attack or stroke. The Judicial Panel on Multidistrict Litigation designated the federal cases as a multidistrict litigation (MDL) and transferred them to the Eastern District of Louisiana for discovery and pretrial. The district court conducted six bellwether trials. The results of those trials spurred negotiations between that parties that concluded in a settlement agreement by which Merck would fund a $4.85 billion program to resolve pending state and federal cases involving heart attack, stroke, or sudden cardiac death. The terms of the settlement necessitated considerable court management and oversight and expressly permitted the court to modify any provision of the settlement that was otherwise unenforceable. Merck made deposits into the settlement fund, and the settlement administrators prepared to begin distribution. The court then ordered sua sponte that the contingent-fee agreements between the plaintiffs and their attorneys be capped at 32 percent plus reasonable costs. Five attorneys representing the plaintiffs formed the Vioxx Litigation Consortium (VLC) and moved for reconsideration or revision of the order capping contingent fees. The court took up the VLC’s motion.