Photo of Bexis

We posted yesterday about the Texas appellate court’s dismissal of the appeal in Ledbetter v. Merck, the Vioxx case that resulted in a key defense precedent in the trial court.

Among other things, we wrote:

“Ledbetter had asked the court not only to dismiss the appeal, but also to dismiss the underlying lawsuit and vacate Judge Wilson’s orders in the trial court — which would have erased an important precedent for the defense. The appellate court, however, granted only the motion to dismiss the appeal; the court denied the motion to vacate the trial court order, leaving it intact.”

One particularly observant reader asked us why this happened — why would a plaintiff dismiss not just her appeal, but also her underlying lawsuit, which would eliminate any chance of recovery? Merck had plainly settled with Ledbetter, the reader surmised, and we should include that fact in our post.

We checked.

(Actually, we didn’t check. Bexis, who would know the answer to this question, does not participate in posts about the Vioxx litigation, because his firm is involved in Merck’s defense. So only Herrmann — a completely ignorant outsider to the situation — checked. On this blog, you get what you pay for.)

The $4.85 billion Vioxx settlement agreement excludes folks positioned like Ledbetter, so Ledbetter received nothing in the global settlement.

The public record shows no evidence of a settlement.

And the briefs in the Ledbetter appeal don’t say that the case was settled.

So far as we (that’s the royal we — it means “I”) can tell, Ledbetter simply took a pass. She dismissed her case for free, receiving nothing at all in compensation.

Why would she have done that?

Did her case have no value, so it wasn’t worth appealing to revive only that one case after the bulk of the Vioxx mass tort had settled?

Were plaintiffs’ counsel concerned about receiving an adverse decision from the Texas appellate court, so they did whatever was needed to dismiss the appeal and eliminate the risk of appellate loss?

Did Ledbetter’s lawyers prefer not to spend time and money briefing the appeal after they had already received a payday from the global settlement, so Ledbetter’s lawyers convinced Ledbetter to dismiss her case without receiving any compensation?

Did Ledbetter’s lawyers themselves pay Ledbetter something, to convince her to dismiss her case?

We’re scratching our heads over this one; we just can’t figure it out.

Perhaps a plaintiff’s lawyer who reads our blog can help.

Please do; like another Texan, Ross Perot, we’re all ears.