In Re: Vioxx Product

Filing

UNPUBLISHED OPINION FILED. [10-30452 Affirmed] Judge: TMR , Judge: JLD , Judge: EBC. Mandate pull date is 01/07/2011 [10-30452]

In Re: Vioxx ProductCase: 10-30452

Document: 00511325802 Page: 1 Date Filed: 12/17/2010

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IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
December 17, 2010 N o . 10-30452 S u m m a r y Calendar Lyle W. Cayce Clerk

I N RE: VIOXX PRODUCTS LIABILITY LITIGATION ___________________________________________________

G E N E WEEKS, P la in t if f -A p p e lla n t v. M E R C K AND COMPANY INCORPORATED, D e fe n d a n t -A p p e lle e

A p p e a l from the United States District Court for the Eastern District of Louisiana U S D C No. 2:05-CV-4578 U S D C No. 2:05-MD-1657

B e fo r e REAVLEY, DENNIS, and CLEMENT, Circuit Judges. P E R CURIAM:* P la in tiff-A p p e llan t Gene Weeks ("Weeks") appeals the district court's order d e n y in g his motion to vacate his enrollment in the Master Settlement

Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

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Dockets.Justia.com

Case: 10-30452 Document: 00511325802 Page: 2 Date Filed: 12/17/2010

No. 10-30452 A g r e e m e n t , and entry of judgment dismissing Weeks's claims against D e fe n d a n t -A p p e lle e Merck and Company Incorporated ("Merck"). We affirm. W e e k s argues that he should be released from the Master Settlement A g r e e m e n t because his attorney at the time coerced him into enrolling in the a g r e e m e n t. He contends that Merck interfered with his attorney's professional ju d g m e n t by imposing an obligation on all counsel representing plaintiffs that w e r e parties to the Master Settlement Agreement to (1) recommend settlement t o all clients, and (2) withdraw from representing clients who refused p a r tic ip a t io n in the Master Settlement Agreement. He therefore concludes that t h e district court erred when it reviewed his consent to enter into the Master S e t t le m e n t Agreement based on contract law, rather than examining Weeks's r ig h t to conflict-free counsel. We disagree. " A settlement agreement is a contract," which is interpreted by reference t o state law. Dore Energy Corp. v. Prospective Inv. & Trading Co. Ltd., 570 F.3d 2 1 9 , 225 (5th Cir. 2009). "Public policy favors compromise agreements and the fin a lity of settlements." Red River Waterway Comm'n v. Fry, 36 So. 3d 401, 407 (L a . Ct. App. 2010); see also Jackson v. N. Bank Towing Corp., 213 F.3d 885, 889 (5 t h Cir. 2000). Under Louisiana law, "[c]onsent may be vitiated by error, fraud, o r duress." LA. CIV. CODE art. 1948. Weeks alleges no facts suggesting that he a r g u e s either error1 or duress,2 leaving only fraud.

The Louisiana Code chapter covering vices of consent does not define error, but states that "[e]rror vitiates consent only when it concerns a cause without which the obligation would not have been incurred and that cause was known or should have been known to the other party." LA. CIV. CODE art. 1949. "Consent is vitiated when it has been obtained by duress of such a nature as to cause a reasonable fear of unjust and considerable injury to a party's person, property, or reputation." LA. CIV. CODE art. 1959.
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Case: 10-30452 Document: 00511325802 Page: 3 Date Filed: 12/17/2010

No. 10-30452 " F r a u d is a misrepresentation or a suppression of the truth . . . [and] may a ls o result from silence or inaction." LA. CIV. CODE art. 1953. "Fraud does not v it ia t e consent when the party . . . could have ascertained the truth without d iffic u lt y . . . [unless] a relation of confidence has reasonably induced a party to r e ly on the other's assertions or representations." LA. CIV. CODE art. 1954. Weeks cannot demonstrate fraud because his attorney did not conceal or m is r e p r e s e n t her relationship--such as it was--with Merck. The Master

S e t t le m e n t Agreement contained the provisions about which Weeks complains, a n d he received a full copy of the agreement to review before he signed the c o n s e n t. See Martin v. JKD Invs., LLC, 961 So. 2d 575, 578 (La. Ct. App. 2007) (n o fraud where plaintiff did not read the document). And, assuming arguendo t h a t Weeks's other allegations of fraud on the part of his attorney are t r u e -- w h ic h the district court did not find--they would be insufficient under L o u is ia n a law to vitiate an agreement between Weeks and Merck. Smith v. F r e y , 703 So. 2d 751, 753 (La. Ct. App. 1997) (fraud perpetrated by an attorney n o t sufficient to rescind agreement where remaining parties to compromise a g r e e m e n t not aware of the fraud). Weeks's consent was voluntary and thus v a lid . A F F IR M E D .

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