It is a good sign for whether the 85% thresholds will be met that a group of Florida attorneys has, reports the AP, filed a motion begging to permit their clients to join the settlement, even though they are ineligible because they did not have pending litigation at the time of settlement. (Florida's statute of limitations has not yet expired.) In the words of the motion (docket #13286):
Members of the PSC have traveled the country recently expressing to local counsel the many reasons why participation in the SETTLEMENT AGREEMENT is in the best interests of all claimants. Prominent among those reasons are: (1) The expected recoveries by individual claimants will be fair and reasonable: (2) Individual claimants who do not participate must expect to wait a very long time before their cases actually come to trial; (3) MERCK will not settle any case outside the SETTLEMENT AGREEMENT; (4) A VIOXX trial against MERCK will cost a million dollars; (5) The history of VIOXX trials has not been especially favorable for the plaintiffs; and (6) the specter of FDA preemption hangs over this litigation. Presumably, for these reasons, the members of the PSC have decided to enter into the SETTLEMENT AGREEMENT for their own clients. For the same reasons movants want to be part of the SETTLEMENT AGREEMENT.
Of course, if the settlement is opened to the eight or so states where the statute of limitations has not yet expired, then that encourages what Richard Nagareda calls the "Field of Dreams" scenario: "If you build it, they will come," with hundreds or thousands of suits that never would have been filed, hoping for a few thousand dollars each from the settlement with very little attorney work. Merck is surely not inclined to expand the settlement. The movants are thus suggesting a cutoff, limiting inclusion to the non-filing plaintiffs who had already filed with the PSC about the possibility of a case under Pretrial Order No. 19.
The PSC does not want their existing clients' recovery diluted should the $4.85 billion pot remain the same and thousands more plaintiffs be added to the mix, and Judge Fallon has no incentive to upset an applecart that looks to take thousands of cases off of his docket, so modification is unlikely; there are no legal grounds to find the settlement unenforceable on the grounds that the parties chose in the course of negotiations not to include certain groups within the eligible claimants. (Whether the PSC breached a fiduciary duty to the Florida plaintiffs that may be actionable is another matter; of course, any lawsuit making such an accusation would effectively admit that the litigation is worthless without the nuisance settlement Merck is offering.) The MDL docket has marked the motion as "deficient," suggesting that the Florida attorneys have not followed appropriate filing procedures.