Judge is satisfied by Vioxx language

NEW ORLEANS - A federal judge overseeing a $4.85 billion settlement with Merck & Co. over its withdrawn painkiller Vioxx expressed confidence yesterday that lawyers had resolved ethical concerns about the agreement.

Some lawyers for Vioxx patients had challenged a provision of the settlement that barred attorneys with clients who participated in the deal from representing others who opted out of it. That could have forced lawyers to advise all of their clients to do the same thing - whether that was to accept the deal or reject it.

Yesterday, however, U.S. District Judge Eldon Fallon said lawyers had amended the November 2007 pact so attorneys were directed to exercise their "independent judgment in the best interests of each client individually before recommending enrollment in the program."

"I'm satisfied that nothing in the agreement imposes on a lawyer any impermissible restriction on the practice of law," Fallon told lawyers on both sides of the deal during a hearing in New Orleans.

A total of 57,167 claimants have registered for the settlement program, which Fallon said represented about 95 percent of potential claimants. Merck has said it will withdraw from the agreement unless at least 85 percent of claimants sign on.

So far, 3,065 claimants have moved to the next phase and enrolled in the program, Merck spokesman Kent Jarrell said.

Ted Mayer, an attorney for the Whitehouse Station, N.J., company, said all the lawyers who raised concerns about the ethical implications of the deal had withdrawn the formal objections they filed with Fallon.

John Eddie Williams, a Houston attorney whose firm represents about 1,800 former Vioxx users, told Fallon that the language changes satisfied his earlier ethical concerns.

Merck voluntarily pulled Vioxx off the market in 2004 after its own study showed the painkiller doubled the risk of heart attack when taken for at least 18 months.