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From Products Liability Law Daily, July 09, 2014

Enrollment in master settlement bars challenge to $6.9 million award

By Melissa Skinner, J.D.

A suit brought by the spouse of a deceased patient that challenged a $6.9 million award which was part of a master settlement agreement was defeated by the administrators of the settlement fund because by enrolling in the fund, the spouse had agreed to be barred from bringing subsequent suits relating to the administration of the fund, the federal district court in Louisiana presiding over the multidistrict litigation ruled. The court found that the spouse’s claims of misrepresentation against the administrators also were barred by the language of the settlement agreement, which stated that enrolling individuals had not relied on any representation which was not included in the agreement. The master settlement stemmed from multidistrict litigation (MDL) relating to product liability claims against the prescription drug Vioxx® (In re: Vioxx Products Liability Litigation (Isner v. Seeger Weiss, LLP), July 2, 2014, Fallon, E.).

Multi-district litigation (MDL). Merck & Co., Inc., the manufacturer and distributor of Vioxx—a drug that was used to relieve pain and inflammation caused by osteoarthritis, rheumatoid arthritis, menstrual pain, and migraine headaches—withdrew the drug from the market after clinical trials showed that its use increased risks of heart attacks and ischemic strokes. Subsequently, “thousands of individuals and numerous class actions were filed against Merck in state and federal courts through the country alleging various product liability, tort, fraud, and warranty claims.”

That litigation, which was merged into the MDL, resulted in a $4.85 billion master settlement agreement (MSA). BrownGreer, PLC (BrownGreer), the claims administrator, was charged with evaluating claims that were to be paid out of the fixed fund. In order for plaintiffs to be eligible for recovery funds, they were required to enroll in the MSA, which in turn required each plaintiff to be bound by the terms and conditions of the MSA, including restrictions as to when and how plaintiffs could exit the MSA and maintain the right for future recovery. Pursuant to the MSA, each plaintiff was assigned a point value that would, after the close of enrollment, be translated into a monetary value, which represented the plaintiff’s base award. Certain plaintiffs also were entitled to receive extraordinary injury (EI) awards.

Isner settlement. Linda Isner sued Merck for the wrongful death of her husband, a physician with a substantial income, after his use of Vioxx. Her case was eventually included in the MDL. After Isner’s attorney engaged in discussions regarding whether Isner would be entitled to her late husband’s projected future income, Isner enrolled in the MSA. Specifically, by enrolling in the MSA, Isner executed a release that barred “any and all rights, remedies, actions, claims, demands, causes of actions, suits at law or in equity … of any kind whatsoever … arising out of, relating to, resulting from and/or connected with Vioxx.” She also stated that she entered into the agreement freely and “without relying on any representation or other statement made by or on behalf of, Merck or any other person …” Under the MSA, Isner was found to be eligible for a base award of $1,573,602.19 and an EI award of $5,359,316.74.

Summary judgment. After appealing the award to the special master of the MSA, Isner collected and retained the award but also brought suit against BrownGreer, as well as other parties involved in the MSA claims administration process, for negligent and fraudulent misrepresentations and violations of Massachusetts’ consumer protection laws. BrownGreer, along with the other joined parties, brought a motion for summary judgment arguing that Isner was barred from bringing suit. The court agreed and granted the motion finding that the express terms of the MSA prohibited the causes of action and the claims of misrepresentation were precluded by her waiver within the signed release that stated she had not relied on any other representations in deciding to execute the agreement.

The case number is MDL No. 1657, No. 12-2406.

Attorneys: Russ M. Herman (Herman Herman & Katz LLP) for Liaison Counsel for Plaintiff. Norman Charles Kleinberg (Hughes Hubbard & Reed LLP) for Liaison Counsel for Defendant.

Companies: Merck & Co., Inc.; BrownGreer, PLC; Hughes Hubbard & Reed, LLP

MainStory: TopStory SettlementAgreementsNews DrugsNews LouisianaNews

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