A recent Thomson Reuters story, “Plaintiffs’ Lawyers Can Seek Fees from State Lawyers in Vioxx MDL,” reports that a federal judge has ruled that lawyers for individuals who sued Merck & Co. Inc. over the painkiller Vioxx may be entitled to some of the legal fees Pennsylvania’s outside counsel received in a settlement with Merck in January.  While lawyers for individuals, known as the plaintiffs’ steering committee (PSC), often ask courts for so-called “common benefit” fees from other plaintiffs who recover money in MDLs, it is unusual for the committee to seek fees from the lawyers for the state.

Merck received approval from the FDA in 1999 to sell Vioxx to treat pain.  In 2004, Merck withdrew the drug from the market after data showed that Vioxx carried increased risk of heart attack and stroke.  Thousands of individual lawsuits and numerous class actions were filed against Merck in state and federal court alleging various product liability and tort claims. 

In addition, numerous state and local governments, including Pennsylvania, sued Merck under consumer protection statutes to recover money their citizens paid for Vioxx prescriptions.  All the suits were consolidated to the MDL proceeding in the Eastern District of Louisiana.  The states involved in the MDL agreed by contract to pay the PSC, which includes about a dozen law firms, a common-benefit fee of 6.5 percent of the recovery.  Pennsylvania was the only state not to sign the contract.

Lawyers on the PSC argued that Pennsylvania’s outside counsel had benefited from their work.  Pennsylvania’s lawyers argued that the request was actually a claim for damages against the state, and therefore was barred by the doctrine of sovereign immunity, which prevents states from being sued.  But U.S. District Judge Eldon Fallon of the Eastern District of Louisiana ruled that the claim was not covered by Pennsylvania’s immunity as a state and did not interfere with its ability to choose its own lawyers.  A factual dispute still remains over whether the PSC work actually benefited Pennsylvania’s lawyers.  Fallon referred that fee allocation dispute to a special fee master.

The MDL is In Re Vioxx Product Liability Litigation.  For more information visit http://vioxx.laed.uscourts.gov/