Vioxx Deal Amended To Address Ethical Problems
3 CommentsBy Ed Silverman // January 18th, 2008 // 12:02 pm
A federal judge overseeing the $4.85 billion Vioxx settlement with Merck earlier today expressed confidence Friday that lawyers have resolved ethical concerns about the deal, the Associated Press writes.
Some lawyers for Vioxx patients challenged a provision of the settlement that bars attorneys with clients who participate in the deal from representing others who opt out. That could force lawyers to advise all or none of their clients to accept the agreement, which several legal experts opined was an ethical conundrum for those lawyers.
Today, however, US District Judge Eldon Fallon says the lawyers have amended the November 2007 settlement so that attorneys are directed to exercise their “independent judgment in the best interests of each client individually before recommending enrollment in the program.” During a hearing, he told lawyers at a hearing that “I’m satisfied that nothing in the agreement imposes on a lawyer any impermissible restriction on the practice of law.”
A total of 57,167 claimants have registered for the settlement program, which Fallon said represents about 95 percent of potential claimants. Merck has said it will withdraw from the agreement unless at least 85 percent of people in different groups of claimants sign on. And 3,065 claimants already have moved on to the next phase and enrolled in the program, according to Merck spokesman Kent Jarrell.
Chris
Isn’t this ruling a little late since the deadline for enrollment (and thus recommending participation) has already passed?
Angie
The enrollment date is February 29th. Registration was January 15th
Henry Smith
This is a joke! Simply adding a statement that lawyers are expected to exercise their independent judgement” DOES NOTHING to materially change the ridiculous unethical and illegal requirements of the agreement, WHICH REMAIN IN PLACE.
Having reviewed the amendment to the settlement, I am quite concerned with the following:
1) The judge and lawyers all seem to be patting themselves on the back regarding the amendment to the agreement, which is said to SATISY all their ethical concerns. The relevant text is this: “Each enrolling counsel is expected to exercise his or her independent judgement in the best interest of each client individually before determining whether to recommend enrollment in the Program. By submitting an Enrollment Form, the Enrolling
Counsel affirms that he or she has exercised such independent judgement and either (1) has recommended to 100% of the Eligible Claimants represented by such Enrolling Counsel that such Eligible Claimants enroll in the Program, or, (2) (if such Enrollment Form is submitted prior to February 28, 2008 and is not accompanied by a Certification of Final Enrollment) will recommend by no later than February 28, 2008, to 100% of the Eligible Claimants represented by such Enrolling Counsel that such Eligible Claimants enroll in the Program.”
It should be obvious from reading the above that NOTHING SUBSTANTIVE has changed in regard to the terms of the agreement. The changes, in my opinion, are purely semantical.
To participate in the settlement with even 1 of their clients, lawyers are STILL REQUIRED TO RECOMMEND PARTICIPATION TO 100% OF THEIR OTHER CLIENTS. Additionally, if they are participating with even 1 of their clients and any other of their clients opts not to enroll, THE LAWYER MUST STILL WITHDRAW FROM REPRESENTING THE CLEINT OPTING OUT, and ALL OTHER PARTICIPATING ATTORNEYS MUST AGREE NOT TO REPRESENT THEM AS WELL.
So, what has changed? Apparently the only thing that has changed is that now the lawyers have a direct read from Judge Fallon
[who was also named to fill the role of Chief Administrator of the Settlement, and stated: ""I believe this program will work and that it will be in the best interests of all concerned," and "I’m satisfied that nothing in the agreement imposes on a lawyer any impermissible restriction on the practice of law."]
that the language added above will suffice to eliminate ethical concerns, as
long as the lawyers can point to and say that they followed the settlement language’s direction to “exercise his or her independent judgement in the best interest of each client individually before determining whether to recommend enrollment in the Program”, which is deemed to have been satisfied when the attorney submits an Enrollment Form.
In my mind, this delusional reality serves only the interest of the lawyers, Merck and Judge Fallon. I believe ALL Plaintiffs, and all Americans, should be outraged that the legal system can be so grossly contorted to satisfy the desires of the legal professionals entrusted with its operation.
By the way, apparently ALL motions filed regarding the ethical concerns have been withdrawn.
2) I have an additional concern regarding what exactly is the role of Judge Fallon in his function as “Chief Administrator” of the Settlement Agreement.
Is he on the books and being paid as a government judge during this function, or is he participating and being compensated as a private citizen fulfilling that role? I understand that the Settlement Agreement is private; how does that affect Fallon’s role as Chief Administrator?
I believe that Fallon’s assertions to the plaintiff’s counsels may be/have been affected by his upcoming role as Chief Administrator of the Settlement.
I believe that the Plaintiff’s Counsels, therefore, should call for, and insist upon, a Canon IIIb(3) hearing.