The Vioxx Settlement, the settlement industry has to step up.

When the history of the Mass Tort legal "business" is written some day by some university professor with an interest in strategic and organizational issues the chapter on The Vioxx Settlement should be subtitled, The Day the Music died. Perhaps no other mass tort was started with such high hopes by the trial lawyers involved and which at the end of the day ended up being a massive repudiation of the strategic thinking and legal strategy involved in prosecuting this enormously complex mass tort.

From the start it looked as if this was going to be a home run of epic proportions for trial lawyers and an opportunity for the seriously ill and injured plaintiffs to obtain some measure of economic and financial justice for what they went through. You had clear and horrific injuries as a result of strokes and heart attacks, you had hidden medical data and fudged studies that strongly suggested that Merck knew early on that their drug was a silent killer for a significant proportion of it's users and you had the FDA yanking the product off the shelf as the evidence became clear. Surely all that remained was to round up the injured victims, put them into friendly legal jurisdictions, win a few early trials and Merck would roll over and write that $30 billion check.

I was there at the start, attending ATLA and MTMP meetings and the excitement among the trial lawyers was only matched by the excitement of the legal marketing and advertising firms convincing the trial lawyers to spend massive amounts of money advertising to round up the injured Vioxx clients. Oh and did they ever advertise and spend money, all in the hope of an early, substantial settlement that would pay off all that legal financing and advertising money, but when Merck did the unthinkable and decided to spend close to $1 billion just to defend the first early trials and contest every claim and case did their strategy become clear. Bleed the trial lawyers white in a war of attrition that Merck and it's brilliant general counsel Ken Frazier knew would end in much the way the Civil War ended, with the rebels exhausted, out of resources and desperate to simply strike a truce on the best terms possible.

So what we got was the still significant, but financially modest settlement, in which $4.85 billion is to be allocated among the more then 50,000 injured and ill plaintiffs. Why do I bring all this up? Largely because I started receiving the first of my phone calls from Vioxx claimants this week as they start planning what to do with the still to be determined money they will net in the settlement. Many fear the loss of their governmental benefits if they accept even the modest amounts they might receive and others are wondering what they can do with the funds to some how rebuild their lives that have been destroyed by their use of Vioxx.

I'm not in any way criticizing the vast majority of lawyers who did their best to find injured clients and put them into the litigation process known as the Vioxx settlement. They are each working in the flawed system that has evolved and they are pretty much swept along by the tide and process, with little control over what goes on or how the case is resolved. What I am critical of is a "justice" system where we have legal war fare between a company fighting for it's very economic survival due to a drug they made and sold going bad, and trial lawyers who are vastly under funded and scattered across the country who are attempting to obtain some measure of economic and legal justice for horribly sick and injured people. The wasted time, money, resources and lives now becomes clear, as I talk one on one with the people who are struggling to live with some dignity after their lives were destroyed by this drug.

The great Gerry Spence once said, "awarding money is a poor measure of justice, but it is only measure we have in the civil justice system". As I talk with people whose needs so far outstrip any potential recovery they will receive, it only reinforces what I believe, and that is that our system for handling mass torts is badly damaged and that the only people who receive economic justice are the lawyers who defend these matters and bill at $1000 per hour, and the very few lawyers at the top of the mass tort food chain who control the litigation.

There has to be a better way, but until then the Vioxx claimants are left with the old and cold refrain, that even today their check for compensation for the injuries they suffered from Vioxx, is in the mail. The experts in the structured settlement industry, who are accomplished and experienced in how to magnify the value of a small amount of settlement money into a tax free income plan that assists these injured people is going to have to step up big and make sure these people get the help, assistance and advice that they need. These victims aren't going to get enough, but we have to help them get the most from what they recieve.
Posted on September 6, 2008 .