In Re: Vioxx Prod Liability ( 2011 )

Case: 10-30209 Document: 00511445954 Page: 1 Date Filed: 04/14/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
April 14, 2011
No. 10-30209 Lyle W. Cayce
Summary Calendar Clerk
IN RE: VIOXX PRODUCTS LIABILITY LITIGATION
----------------------------------------------------------------------------
HOMER JONES,
Plaintiff - Appellant
v.
MERCK & COMPANY, INCORPORATED,
Defendant - Appellee
Appeal from the United States District Court
for the Eastern District of Louisiana, New Orleans
USDC Nos. 2:05-MD-1657 & 2:06-CV-9803
Before JOLLY, GARZA, and STEWART, Circuit Judges.
PER CURIAM:*
The district court dismissed Appellant Homer Jones’s personal injury
claims against Merck & Company pursuant to a joint stipulation of dismissal
with prejudice that Jones signed when he submitted his claim to a nonjudicial
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
Case: 10-30209 Document: 00511445954 Page: 2 Date Filed: 04/14/2011
No. 10-30209
resolution program established pursuant to a settlement agreement between
Merck and a group of plaintiffs’ counsel. After Jones was found by the program
administrators to be ineligible to participate in the settlement and he failed
properly to complete the process for returning his case to the court system,
Merck filed the joint stipulation of dismissal, which was signed by Jones and
Merck’s counsel, in the district court. The district court then entered an order
dismissing Jones’s complaint.
In his pro se brief on appeal, Jones does not contend that his signature on
the joint stipulation of dismissal with prejudice was involuntary or unknowing.
Instead, he argues, for the first time on appeal, that the nonjudicicial resolution
program administrators erred by finding that he was ineligible to participate in
the settlement, and that he can prove that Merck’s product, Vioxx, caused his
alleged injury.
We generally do not consider issues presented for the first time on appeal.
See Northrop Grumman Ship Systems, Inc. v. Ministry of Defense of the Republic
of Venezuela, 575 F.3d 491, 504 (5th Cir. 2009). The joint stipulation of
dismissal without prejudice, signed by Jones and Merck’s counsel, was effective
upon filing. See Smallbizpros, Inc. v. MacDonald, 618 F.3d 458, 461 (5th Cir.
2010) (“Except in special circumstances . . . a voluntary order of dismissal
requested by both parties is effective upon filing and does not require the
approval of the court.”). Because Jones does not challenge the voluntariness of
his stipulation, “the fact that both parties freely consented to the entry of a final
judgment precludes an appeal from it.” Amstar Corp. v. Southern Pacific
Transport Co., 607 F.2d 1100, 1100 (5th Cir. 1979). Accordingly, Jones’s appeal
is DISMISSED. Jones’s motions for joint designation treated as a motion to
supplement the record on appeal and for appointment of counsel are DENIED.
APPEAL DISMISSED; MOTIONS DENIED.
2