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Vioxx roundup, January 15

  • Today is January 15, the first of many deadlines in the Vioxx settlement. Many in the press are reporting that today is the day for plaintiffs to sign up for the settlement, but this is not so; it is merely a registration deadline to indicate the status of all attorneys participating in the litigation, and which cases they have financial interests in. [Settlement Exhibit 1.1; NJ Star-Ledger; DowJones; AP/Newsday; Bloomberg]
  • On January 9, Judge Fallon issued an order that Jeffrey Lowe's motion objecting to the settlement (Jan. 5) was "continued" without a new date for a hearing, suggesting that his objections have been addressed by the PSC without further briefing. But who knows? I've asked Lowe's co-counsel, blogger Evan Schaeffer, if he has a comment and will report back.
  • Another objection, filed as a declaratory judgment action by Connecticut law firm Stratton Faxon, which had about 85 plaintiffs, was rejected in federal court in Connecticut for lack of jurisdiction on the grounds that the law firm was seeking an advisory opinion. [Lexis-Nexis]
  • Ronald Benjamin, an attorney for five plaintiffs has filed a legally incoherent interlocutory appeal with the Fifth Circuit against an administrative discovery order (Pre-Trial Order No. 28) issued by Judge Fallon. The appeal is based on the faulty premise that a discovery order is a final judgment because the definitions (which are delineated as "For purposes of this order only") will be binding on future litigants in future substantive motions. And even if one were to accept the legally illiterate premise, the motion's logic is incomplete. If one assumes that Judge Fallon, by applying definitions in a discovery order, has made binding findings of fact, those findings of fact are still interlocutory, since the court has not yet dismissed any case by misapplying the definitions. Benjamin's other faulty premise is that the settlement is subject to Rule 23; but since there is no plaintiff class, there are no Rule 23 compliance requirements. Thus, the appeal will almost certainly be dismissed for lack of appellate jurisdiction, as both Merck and the PSC have requested. (Agard v. Merck, No. 07-31164.) There seem to be a handful of other appeals pending in the Fifth Circuit that were filed in the waning days of 2007.
  • AP is reporting that Merck expresses confidence that the 85% thresholds will be met requiring Merck to participate in the settlement. Of course, Merck would express confidence even if they didn't have confidence, so this tells us little by itself, but in conjunction with the lack of large-scale opposition beyond a few fringe attorneys and plaintiffs, is probably correct.

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Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.