The settlement offer is open only to cases filed on or before Nov. 8. Merck does have the right to terminate the process without any payment to any claimant and to defend each claim individually at trial if any of the participation conditions in the agreement aren't met. The deal isn't a class-action settlement, and claims will be evaluated on an individual basis.
The settlement becomes binding only if 85% of all plaintiffs agree to drop their cases, Merck said.
In addition to other stipulations, in order to qualify a claimant has to have medical proof of a heart attack or stroke, documented receipt of at least 30 Vioxx pills, and he or she has to be presumed to have taken the drug within 14 days of having a medical problem.
The company said in a conference call following the announcement Friday that each patient case will be assigned points based on risk factors, duration on the drug and consistency of taking the drug among other things. The money will then be distributed based on that assessment. But regardless of how patients fit into those categories, no more than the $4.85 billion will be distributed.
Merck said no one who's eligible can exit the process or opt out and return to court, the payment is only triggered if the aforementioned 85% or more of all plaintiffs enter and firms must recommend enrollment to 100% of their clients who allege heart attack or stroke in relation to Vioxx.