At its height, the mass-tort litigation against Merck for its drug Vioxx received a great deal of press attention. And, when Merck settled with most of the plaintiffs, its decision to only settle with attorneys who were willing to resolve their entire inventory of Vioxx cases generated controversy among the legal commentariat.
Last week, one set of plaintiffs’ lawyers placed an unusual coda onto the Vioxx litigation. They filed a class action challenging the Vioxx settlement, Weeks v. Merck & Co., 2012 U.S. Dist. LEXIS 78954 (E.D. La. Jun. 6, 2012).. (They did so on behalf of a plaintiff who had already unsuccessfully sought to rescind his settlement.) But these new "Vioxx plaintiffs" made a key mistake early in. They defined their class as:
all litigants who had personal-injury actions pending in any jurisdiction of the United States alleging damages as a result of ingestion of Vioxx, subject to the ‘all in’ provisions of the MSA [who] consented to … the terms of the MSA for fear of losing their retained counsel.
(Emphasis added.) Merck moved to strike the class allegations, because the class definition would require an individualized inquiry into each member’s state of mind. The court agreed.
ascertaining the class cannot be done by any objective method or without impinging on the merits of any particular class member’s claim. In every instance, the Court would have to examine the specific circumstances of a purported class member’s attorney-client relationship and individualized decision to enroll in the MSA. Each inquiry would involve whether that particular claimant was coerced, which is a primary factual dispute between the parties …
The plaintiffs tried to recoup by arguing that the definition fit everyone who had settled with Merck. The court, however, noted that
Plaintiffs’ argument simply shifts the inherent subjectivity to the definition of the harm rather than resolving it.
What did it mean by that statement? It meant that determining the legitimacy of an individual litigation settlement was an inherently individualized (and subjective) inquiry. The court noted the issues that would rapidly become enmeshed in this class action when it described the different harms that the plaintiffs had alleged. The plaintiffs claimed that either they had been forced to take bad settlements because of the threat of losing counsel, or they had taken bad deals because they had been advised by attorneys with serious conflicts of interest. But each of these harms would still require some inquiry into state of mind–either the plaintiff’s, to establish fear of coercion, or the attorney’s, for conflict of interest.
The court’s decision revealed an important point to remember about ascertainability. If there are problems with the class definition, it is usually because there are larger problems with the class. Changing the definition will not change the underlying problem.