News Comment - Vioxx - A bitter pill.

(From Post Magazine)

Following the massive damages award made by a Texan court to the widow of a man who was prescribed Vioxx, lawyers are raising the prospect of a raft of further claims being brought on behalf of UK claimants (PM, 25 August, p1).

Amid the banner headlines trumpeting the huge damages payout in the US - which pharmaceutical manufacturer Merck has already stated will be robustly appealed - and the prospect of many more cases going to trial, it is easy to forget that the lawyers acting on behalf of prospective Vioxx claimants in the UK have so far failed to secure legal aid funding from the Legal Services Commission. The claimants are planning to appeal the refusal of legal aid, with the appeals scheduled to be heard in the autumn.

Although legal aid funding for personal injury claims was withdrawn in April 2000, it has remained possible to obtain such funding provided the LSC is persuaded there is a good case on the merits.

Lawyers seeking funding for a group action are also required to prove the existence of a public-interest element to their claims. Under the LSC's funding code, claims with a public-interest element are subject to a less stringent cost-benefit test because the LSC takes the view that most multi-party actions will be able to demonstrate what the code calls a de facto "significant wider public interest".

So why have the UK Vioxx claims so far failed to secure public funding?

Following the refusal of funding, the LSC states that, having a limited budget, it would only use public money to fund claims that could not proceed without it. In the LSC's view, because Vioxx has already been withdrawn, it is highly likely that private funding - either through insurance or by way of a no win, no fee agreement - could be successfully obtained.