IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 15-31070

Summary Calendar

IN RE: VIOXX PRODUCTS LIABILITY LITIGATION

-----------------------------------------

LINDA ISNER, Executrix of the Estate of Jeffrey Isner, M.D., 

 Plaintiff - Appellant

v.

SEEGER WEISS, L.L.P.; CHRISTOPHER A. SEEGER; HUGHES 

HUBBARD, & REED, L.L.P.; THEODORE V.H. MAYER; BROWNGREER, 

P.L.C.; ORRAN L. BROWN, 

 Defendants - Appellees

Appeal from the United States District Court

for the Eastern District of Louisiana

USDC No. 2:05-MD-1657

USDC No. 2:12-CV-2406

Before KING, DENNIS, and COSTA, Circuit Judges.

PER CURIAM:*

 

* 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.

United States Court of Appeals

Fifth Circuit

FILED

October 11, 2016

Lyle W. Cayce

Clerk

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Linda Isner appeals the grant of summary judgment disposing of her 

misrepresentation and consumer protection claims against a number of 

attorneys and law firms. These attorneys and firms played leading roles, some 

on the side of the plaintiffs and others on the side of the defendant, in 

organizing a national settlement between users of the drug Vioxx and its 

manufacturer Merck & Co. Isner, whose physician husband died from a heart 

attack after taking Vioxx, opted to release her claims against Merck in order 

to participate in the settlement which resulted in her receiving approximately 

$6.9 million. She now argues that the defendants misrepresented how the 

compensation would be calculated. Because her claims are barred by the terms 

of the settlement agreement, we conclude that summary judgment was proper.

I.

Vioxx, a once popular anti-inflammatory and analgesic drug, was 

withdrawn from the market after it was linked to an increased risk of heart 

attack and stroke. Isner, like many other Vioxx users and their families, sued 

Merck, and her case was consolidated for multidistrict litigation in the Eastern 

District of Louisiana. Attorneys for Merck and the plaintiffs crafted a master 

settlement agreement (MSA) under which Merck provided a compensation 

fund that plaintiffs could access if they agreed to release their claims against 

the company. 

Theodore Mayer and his firm Hughes, Hubbard, & Reed represented

Merck in the MDL and settlement negotiations. Christopher Seeger, an 

attorney at Seeger Weiss, was a member of the Plaintiff’s Steering Committee 

and a Negotiating Plaintiffs’ Counsel (NPC) for the MDL plaintiffs. Orran 

Brown and his firm BrownGreer were selected by Merck and the NPCs to act 

as Claims Administrator under the MSA.

Those with Vioxx claims wishing to enter the settlement had to first 

apply and demonstrate their eligibility with evidence that they or their family 

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members had used the drug in close proximity to suffering a heart attack or 

stroke. If admitted, claimants were next assigned a certain number of points 

based on the strength of their claims and the severity of their injuries. This 

point system would be used to calculate a claimant’s base monetary award, 

though the exact dollar value of a given amount of points was not known to 

claimants before enrolling since actual payments would depend upon the 

number of other enrollees and their own points assessments.

In addition to a claimant’s base award, he or she might also be eligible 

for an extraordinary injury (EI) award. EI awards were for claimants who 

suffered economic damages (like lost wages or medical bills) in excess of 

$250,000. A portion of the total settlement pool was set aside for EI awards. 

The MSA itself contained few details about how the EI funds would be 

allocated among claimants and individual payouts determined but gave the 

Claims Administrator discretion to set binding criteria.

Isner was counseled by her attorney Joseph Doherty in deciding whether 

to join in the MSA. In making her choice, she was especially concerned with 

obtaining compensation for the loss of her husband’s sizable earnings as a 

physician. Compensation under the MSA for such a large economic loss would 

come only in the form of an EI award. Doherty, consequently, sought 

information from Mayer, Seeger, Brown, and their firms about how EI awards 

would be calculated and paid.

The ensuing communications gave rise to the alleged 

misrepresentations. To cite just one example, Doherty wrote an email to 

Seeger following a settlement conference to request confirmation that EI 

payments would include “both past and future lost earnings through to the end 

of Dr. Isner’s work-life expectancy.” Doherty also sent an email to Mayer 

requesting confirmation that “dollar-for-dollar,” past and future lost earnings 

would be included in EI awards. When Mayer replied, he confirmed that both 

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past and future lost earnings would be included. He stated that the awards 

will be “dollar for dollar subject to 1) disability benefits . . . 2) I believe, discount 

to present value as of the payment date . . . and 3) any proration that may 

prove necessary under Section 4.2.8 [the global cap].” Mayer couched these 

assertions in admissions of uncertainty and doubt, stating that “Brown Geer 

has not yet established all the criteria for EI awards” and that the “process 

does not allow prediction of the recovery amount with precision.”

Isner ultimately decided to enroll in the MSA program, agreeing to both 

the MSA and a release. When the Claims Administrator announced the 

criteria for fixing EI awards and her own payment was calculated, Isner was 

disappointed. The Administrator found that her husband’s expected annual 

earnings were $700,000 and set his retirement age at sixty-six. According to 

Isner, a simple calculation using this yearly income and the amount of time 

between her husband’s passing and his hypothetical retirement age would 

yield an award of $8,490,935. The Claims Administrator, however, applied two 

deductions: a “standard discount” of 50% to account for present day value and 

the uncertainty that the deceased would have continued to work until his 

projected retirement date and a “relative points value adjustment” that took 

into account the points score used to measure the strength of her claim and the 

severity of her husband’s injury. Using this method, Isner was assigned a 

$5,359,316.74 EI award that brought her total award to $6,932,918.93. 

Though she appealed this determination to a special master, the master 

affirmed that her award was calculated correctly according to the EI criteria 

released by the Claims Administrator.

Isner collected her award but filed suit in Massachusetts state court 

alleging that the defendants had negligently or intentionally misrepresented 

how her EI award would be calculated and thereby also violated 

Massachusetts’ consumer protection statute. See Mass. Gen. Laws ch. 93a, § 9. 

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The defendants removed the action to federal court, and it was transferred to 

the Louisiana district court that hosted the MDL. The defendants successfully 

moved for summary judgment on several grounds, including that language in 

the MSA and release barred the claims Isner was asserting. 

II.

We review a summary judgment ruling de novo. Davis v. Fort Bend Cty., 

765 F.3d 480, 484 (5th Cir. 2014). We interpret all facts and draw all 

reasonable inferences in favor of the nonmovant. Ion v. Chevron USA, Inc., 

731 F.3d 379, 389 (5th Cir. 2013). Summary judgment is appropriate only 

when the record reveals “no genuine dispute as to any material fact and the 

movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).

The defendants argue that summary judgment was appropriate because 

Isner agreed to relinquish any claims she might have against them related to 

the settlement or Vioxx when she executed the MSA and release. The MSA 

provides that “no Program Claimant . . . shall have any right to institute any 

proceeding, judicial or otherwise, against Merck, the NPC or any 

Administrator to enforce, or otherwise with respect to, this Agreement.” 

Likewise, by executing the release, Isner abandoned “any and all rights, 

remedies, actions, claims, demands, causes of action, suits at law or in equity . 

. . in any way, arising out of, relating to, resulting from and/or connected with 

VIOXX.”

This language is broad enough to encompass all of Isner’s claims against 

all of the defendants. Looking to the MSA first, we note that each of Isner’s 

three claims is a claim “with respect to” the MSA: the factual allegation 

supporting all three of her causes of action is that the defendants

misrepresented to her how her EI award would be calculated if she accepted 

the MSA. The MSA identifies three entities or persons against whom Isner 

may not bring a claim: the NPC (Negotiating Plaintiffs’ Counsel), Merck, and 

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any Administrator. BrownGreer was the Claims Administrator, Seeger was 

one of the NPC, and Hughes, Hubbard, & Reed represented Merck. Turning 

to the release executed by Isner, we find equally comprehensive language 

without a restriction of parties. We thus conclude that Isner’s claims are 

connected or relate to Vioxx; each of them is predicated on the defendants’

alleged misrepresentations about how she would be treated under a 

nationwide settlement of the claims of Vioxx users and their families.

Isner argues that the defendants cannot invoke the text of the release 

and MSA to defeat her claims because Massachusetts law does not allow such 

exculpatory language in a contract to defeat a claim in tort based on fraud or 

deceit. For example, Massachusetts courts have held, “[A] party to a contract 

with another cannot claim shelter by a contractual device, such as an 

exculpatory or merger provision, against claims of deceit.” Greenleaf Arms 

Realty Trust I, LLC v. New Boston Fund, Inc., 81 Mass. App. Ct. 282, 288–89, 

962 N.E.2d 221, 228 (2012); see also Granlund v. Saraf, 263 Mass. 76, 79, 160 

N.E. 408, 409 (1928) (“Fraud which enters into the making of the contract 

cannot be excluded from the reach of the law by any form of phrase inserted in 

the contract itself.”).

The parties dispute whether the law of Massachusetts governs—the 

defendants contend that the law of New York applies based on a choice of law 

provision in the MSA. We need not resolve this question, however, because

even under the law preferred by Isner, the terms of the release and MSA are 

sufficient to defeat her claims. Although the case law Isner relies on does 

correctly state the general rule in Massachusetts—a party to a contract cannot 

shelter against claims of deceit under an exculpatory provision—this rule is 

subject to an exception. Namely, “if ‘the contract was fully negotiated and 

voluntarily signed, [then] plaintiffs may not raise as fraudulent any prior oral 

assertion inconsistent with a contract provision that specifically addressed the 

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particular point at issue.’” Starr v. Fordham, 420 Mass. 178, 188, 648 N.E.2d 

1261, 1268 (1995) (alteration in original) (quoting Turner v. Johnson & 

Johnson, 809 F.2d 90, 97 (1st Cir. 1986)). This rule extends to prior written 

assertions as well. See HSBC Realty Credit Corp. (USA) v. O’Neill, 745 F.3d 

564, 570–571 (1st Cir. 2014) (applying Starr and Turner to reject a fraud claim 

based on alleged misrepresentations in an earlier written agreement).

In this case, the particular point at issue was the amount of the EI 

payment and the method for calculating it. The MSA states that claimants 

will receive an EI payment under “criteria to be determined by the Claims 

Administrator” and “according to guidelines to be established by the Claims 

Administrator.” The method of calculation was thus specifically reserved for 

the decision of the Claims Administrator at a later date. Furthermore, under 

the heading “NO GUARANTEE OF PAYMENT,” the release stated, “I 

FURTHER ACKNOWLEDGE THAT I UNDERSTAND THIS RELEASE 

AND THE AGREEMENT AND THAT THERE IS NO GUARANTEE 

THAT I WILL RECEIVE ANY SETTLEMENT PAYMENT OR, IF ANY 

SETTLEMENT PAYMENT IS MADE, THE AMOUNT THEREOF.” Any 

allegedly false representation by defendants as to how EI payments would be 

calculated and the ultimate amount that Isner would receive are inconsistent 

with these contract provisions, which specifically state that both method and 

amount were up in the air when Isner entered the agreements and received 

the challenged communications from the defendants.

* * *

The judgment is AFFIRMED.

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