A recent Law 360 story by Emily Field, “Vioxx Economic Loss Counsel Win $4.2M in Attys’ Fees,” reports that a Louisiana federal judge signed off on $4.2 million in attorneys’ fees to class counsel who represented consumers in multidistrict litigation who claimed they lost money due to Merck’s recalled drug Vioxx, amounting to nearly a fifth of the $23 million settlement fund.  U.S. District Judge Eldon E. Fallon said he anticipated criticism of the fee award, given that only $698,767 was distributed in claims.  The judge chalked up the lower-than-anticipated figure to several factors, including the length of time between the 2004 recall and the 2013 settlement of the economic loss claims, five years after a $4.35 billion deal to settle personal injury and wrongful death claims.
 
“Individuals may have no longer had access to the documentation to recover these funds, they may have been unmotivated by the relatively small individual recovery amounts, or they may have simply forgotten,” Judge Fallon wrote.  “In any event, the decreased interest was in no way attributable to the significant efforts of class counsel.”

Under the terms of the settlement, claimants were eligible to recover out-of-pocket expenses for purchasing Vioxx and up to $75 in connection with a post-withdrawal medical consultation related to its use, or a onetime payment of $50 with proof of a Vioxx prescription.

Merck withdrew Vioxx from the market in 2004 after scientific studies showed a significantly increased risk of heart attacks after 18 months of continuous use.  The consumers had argued that they wouldn’t have paid for a prescription if not for Merck’s alleged misrepresentations.

The judge detailed the efforts that attorneys pursued to ensure that class members had every opportunity to pursue their claims, including direct mailings to claimants and law firms, a bilingual call center, and a paid print, broadcast and online advertising campaign.  By the time the claims period closed in 2014, 8,757 claims had been filed, of which 7,366 were payable; the others were either ineligible or dupes, according to the opinion.

The judge noted that, at the time the economic loss class action was filed in 2005, it was unclear how many members the potential class would contain.  While the attorneys’ fees may be criticized as unfair, “[s]uch criticism cannot prevail over the unvarnished truth that there are certain principles, the true value of which cannot be measured by or contingent upon the amount of monetary recovery received to secure them,” the judge said. “Justice and fairness are certainly two of those principles.”  In this case, to allow consumers, many of whom are elderly, uneducated and unsophisticated, to be taken advantage of just because the amount they lost is too small to allow them to hire an attorney “is simply unfair and unjust,” the judge said.

After the Vioxx drug was recalled, Merck was hit with multiple lawsuits, including numerous personal injury lawsuits and a purchase claims complaint filed in 2005 as part of the MDL in Louisiana.  In that lawsuit, the plaintiffs alleged that Merck “intentionally, recklessly and/or negligently concealed, suppressed, omitted and misrepresented the dangers, defects and disadvantages of Vioxx.”  The complaint also alleged that Merck engaged in a marketing campaign targeting third-party payors, physicians and consumers and it sold the drug to them at inflated prices.

The MDL is In re: Vioxx Products Liability Litigation, MDL number 1657, in the U.S. District Court for the Eastern District of Louisiana.