      Case: 15-31070          Document: 00513712997    Page: 1    Date Filed: 10/11/2016




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT
                                                                       United States Court of Appeals
                                                                                Fifth Circuit

                                          No. 15-31070                        FILED
                                        Summary Calendar               October 11, 2016
                                                                         Lyle W. Cayce
                                                                              Clerk
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                 No. 15-31070
      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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                                No. 15-31070
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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                                    No. 15-31070
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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                                 No. 15-31070
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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                                   No. 15-31070
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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                                No. 15-31070
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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