United States District Court, E.D. Louisiana
IN RE: VIOXX PRODUCTS LIABILITY LITIGATION, Section L. THIS DOCUMENT RELATES TO: All Cases
ORDER & REASONS
ELDON E. FALLON, District Judge.
Before this Court is Interested Attorney Richard Getty's Motion Seeking Direct Contact with Ineligible Claimants in the Vioxx Consumer Class. (Rec. Doc. 65061). The Court has reviewed the briefs and applicable law, and having heard oral argument on the motion, now issues this Order & Reasons.
To put this matter in perspective, a brief overview of this litigation is appropriate. This multidistrict litigation ("MDL") involves the prescription drug Vioxx, known generically as Rofecoxib. Defendant Merck, a New Jersey corporation, researched, designed, manufactured, marketed, and distributed Vioxx to relieve pain and inflammation resulting from osteoarthritis, rheumatoid arthritis, menstrual pain, and migraine headaches. On May 20, 1999, the Food and Drug Administration ("FDA") approved Vioxx for sale in the United States. Vioxx remained publicly available until September 30, 2004, when Merck withdrew it from the market after data from a clinical trial known as APPROVe indicated that the use of Vioxx increased the risk of cardiovascular thrombotic events such as myocardial infarctions (heart attacks) and ischemic strokes. Thereafter, thousands of individual suits and numerous class actions were filed against Merck in state and federal courts throughout the country alleging various products liability, tort, fraud, and warranty claims. It is estimated that 105 million prescriptions for Vioxx were written in the United States between May 20, 1999, and September 30, 2004. Based on this estimate, it was thought that approximately 20 million patients have taken Vioxx in the United States. On February 16, 2005, the Judicial Panel on Multidistrict Litigation ("JPML") conferred MDL status on Vioxx lawsuits filed in federal court and transferred all such cases to this Court to coordinate discovery and to consolidate pretrial matters pursuant to 28 U.S.C. § 1407. See In re Vioxx Prods. Liab. Litig., 360 F.Supp.2d 1352 (J.P.M.L. 2005). One month later, on March 18, 2005, this Court held the first status conference in the Vioxx MDL to consider strategies for moving forward with the proceedings. Shortly thereafter, the Court appointed a Plaintiffs' Steering Committee ("PSC") and Defendant's Steering Committee to represent the parties and to meet with the Court once every month or two to review the status of the litigation.
On August 2, 2005, the PSC filed a Purchase Claims Master Class Action Complaint ("Purchase Claims Complaint"), naming individual consumers who purchased Vioxx for themselves. (Rec. Doc. 790). The Purchase Claims Complaint states:
2.... Merck intentionally, recklessly, and/or negligently concealed, suppressed, omitted, and misrepresented the dangers, defects, and disadvantages of Vioxx, and advertised, promoted, marketed, sold, and distributed Vioxx as a safe prescription medication when, in fact, Merck had reason to know and did know that Vioxx was not safe for its intended purposes....
9. In an elaborate and sophisticated manner, Merck aggressively marketed Vioxx directly to consumers.... Merck's marketing campaign specifically targeted third party payors, physicians, and consumers, and was designed to convince them of both the therapeutic and economic value of Vioxx.
11. Vioxx possessed dangerous and concealed or undisclosed side effects, including the increased risk of serious cardiovascular events, such as heart attacks, unstable angina, cardiac clotting, deep vein thrombosis, hypertension, and cerebrovascular events, such as strokes. In addition, Vioxx was no more effective than traditional and less expensive NSAIDs....
12 Merck's omission, suppression, and concealment of this important information enabled Vioxx to be sold to, and purchased, or paid for by, the End-Payors at a grossly inflated price.
( Id. at 3-6). The Purchase Claims Complaint sought relief under a myriad of laws, including state consumer protection statutes. (Rec. Doc. 790 at 60-75).
After substantial settlement negotiations spanning several years, the parties reached a compromise last year. The Court issued a Final Order and Judgment Certifying the Class for Purposes of Settlement and Approving of Class Action Settlement on January 3, 2014. (Rec. Doc. 64784). The Settlement allocated up to $23 million, from which Class Members could seek recovery for their out-of-pocket costs for purchasing Vioxx and up to $75.00 in connection with post-withdrawal medical consultation related to Vioxx use or a one-time payment of $50.00 with proof of a Vioxx prescription. Those amounts, however, were subject to a pro rata reduction if all claims, administrative, attorneys' fees, and other costs exceeded the $23 million cap.
In conjunction with the Consumer Class Settlement, the Court has twice ruled upon the adequacy of Notice under Rule 23 and its due process requirements: the Preliminary Certification of a Class (Rec. Doc. 64526) and the Final Order and Judgment Certifying the Class for Purposes of Settlement, Approving of Class Settlement, & Dismissing the Actions with Prejudice. (Rec. Doc. 64784). The Settlement Agreement called for the establishment of a settlement website, toll-free phone number, and post office box to serve as sites where Class Members could obtain or request detailed Notice. (Settlement Agreement ¶¶ 5.3-5.5; Rec. Doc. 64487 at 10). Moreover, Kinsella Media, LLC ("Kinsella") developed a Notice plan to alert the class to the settlement. This plan called for a direct mailing to all counsel for the putative consumer class, paid media ...