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Lawyers for thousands of people injured by Merck’s recalled painkiller Vioxx are challenging a specific provision of the $4.85 billion settlement proposed in November. The provision in dispute requires lawyers representing injured parties to advise either all of their clients to accept the settlement or none of their clients to accept the deal. This is a quite perplexing ethical situation for many attorneys. Legal council is required to act in the best interest of the client and advise clients of what the best course of action would be for them, this provision does not allow plaintiff’s attorneys to advise one client to accept the deal because it is the best option for them, and advise a different client to not accept because it is not a good deal for them. Attorneys for about 2,600 plaintiffs filed papers last weeks asking a U.S. District Court judge to rule that not all portions of the settlement can be enforced in every state as it prevents lawyers from offering their clients “independent professional advice.”

Chris Seeger, one of the six plaintiff lawyers who helped negotiate the settlement, said of Thursday’s motion. “It’s just some lawyers … looking for a judge to say it’s OK to do it this way.”
Seeger and Russ Herman, a New Orleans lawyer who served as chairman of the plaintiffs negotiating committee, both said they are not worried the settlement will be thrown out or altered because the provision in question was based on recommendations from ethics professors at several universities.
“I just don’t see it as a problem,” Herman said.

In order for the deal to be completed the over 85 percent of plaintiffs must agree in order for the deal to be completed and with the January 15th registration deadline looming close by attorneys are scrambling to file motions opposing the deal. Proponents of the settlement are confident that they will reach the threshold by the deadline and do not seem to be that concerned about recent actions of some attorneys.

For more information on this subject, please refer to the section on Drugs, Medical Devices and Implants.

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