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The Legal Intelligencer Merck & Co. Inc. may have settled the bulk of its Vioxx cases, but it plans to try each of the 2,950 New Jersey suits that fall outside the agreement. The company’s $4.85 billion settlement, which is still subject to approval by 85 percent of qualifying claimants, would cover 10,050 plaintiffs in New Jersey and another 13,600 nationwide who can prove they suffered a heart attack or ischemic stroke within 14 days of taking the drug. But it excludes those who allege Vioxx caused other maladies, such as pulmonary embolisms, deep venous thrombosis, gastrointestinal problems, unstable angina, kidney or renal ailments, eye strokes and bone or spine injuries. For those plaintiffs, the company is not letting up on its presettlement white-knuckled stance. “We do intend to defend each individual case and look at each individual set of facts,” said Merck lawyer James Fitzpatrick of Hughes Hubbard & Reed in Jersey City, N.J., and New York City. “We fail to see a causal link between Vioxx and these illnesses, and we’re looking to see who comes forward under these other kinds of illnesses. Our approach hasn’t changed at all for these cases.” The New Jersey cases excluded from the settlement represent about 22.6 percent of the suits before Atlantic County Superior Court Judge Carol Higbee, the judge overseeing the state litigation and one of four nationwide who shaped the agreement. On Nov. 9, the day the settlement was announced, Higbee began the process for documentation of claims outside the agreement by granting a motion by Merck. Her order gives plaintiffs: Sixty days to provide pharmacy and medical records; Sixty days to list employers for the three years prior to the last day for which they are seeking lost wages; and Ninety days to turn over an expert’s report attesting to injury description and medical findings. Higbee said the cases that settled were ready to be resolved. Seventeen cases across the country already had gone to verdict. Juries sided with Merck 12 times and plaintiffs five times. One Merck verdict was set aside and has not been retried, while another Merck verdict was set aside and retried, ending in a plaintiff’s verdict. There have been two unresolved mistrials. “Vioxx won a lot of these cases, but lost with very high awards,” said Higbee. The New Jersey verdicts included one for $13.5 million in 2006 and one for $47.5 million last March. Higbee said the cases covered by the settlement were “mature.” Few cases outside the settlement, on the other hand, have reached discovery. “We’re going to be focusing on those [non-agreement cases] obviously, but right now I’m asking attorneys to focus on taking time to absorb the settlement, understand it, and meet with plaintiffs so they can discuss in detail how this settlement will work,” Higbee said. Plaintiffs covered by the settlement should expect to be compensated within 12 to 18 months, she said. Disqualified plaintiffs will have three chances to try to be covered by the settlement. Meanwhile, lawyers with cases outside the settlement say they’re prepared to litigate. “These are cases that involve clotting mechanism in places other than heart and the brain. It’s the same exact causation, and in my mind, there are fewer defenses to those cases,” said Perry Weitz, of Weitz & Luxenberg in New York City. The firm has 4,000 Vioxx plaintiffs in New Jersey, 500 of whom don’t qualify for the settlement. He said it’s easier to prove clotting in the lung than in the heart or brain. “It’s a mystery to me why Merck would want to pay $5 billion to settle this case, when it still has to defend itself against other cases,” Weitz said. Christopher Seeger, of Seeger Weiss in Newark, N.J., and New York City, defends Higbee’s order requiring prompt preservation and discovery requests. Seeger, who was among the lawyers negotiating the Vioxx agreement in New Orleans, says the requirements are necessary for Merck to learn the scope of the cases outside the settlement. This article originally appeared in the New Jersey Law Journal , a publication of ALM.

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