Deciphering A Mistrial

posted on:
December 13, 2005

author:
Joseph Schuman

A hung jury is as open to-interpretation-as-a-Rorschach test, and the mistrial declared in the first federal civil case over Merck’s liability for Vioxx offered validation for both the company and its detractors.

It was a lone holdout on the jury that stood between Merck and what would have been a crucial second Vioxx-trial victory, jurors tell The Wall Street Journal, which said this fact may take some of the sting out of Merck’s failure to persuade all nine jurors that the company acted responsibly in developing and marketing the painkiller. But Merck will now have to try the case again, on top of a wave of other cases alleging that Vioxx caused heart attacks and the disclosure last week by the New England Journal of Medicine that an article about a key Vioxx study was missing important data. The latest case was widely viewed as the weakest of the three cases against the drug maker to be tried so far. The suit was brought by the widow of Richard “Dicky” Irvin, who claimed that Vioxx caused his fatal heart attack in

2001 at age 53. Defense lawyers pointed out that Mr. Irvin had clogged arteries and had used Vioxx for less than a month, the Los Angeles Times notes. Analysts saw the Irvin case as key for determining momentum in the Vioxx litigation because Merck has won a case and lost a case.

The jury, which deliberated for a little more than two days, didn’t appear to be swayed by the plaintiffs arguments, ultimately voting 8-1 in favor of Merck, the Journal reports. Jurors said they thought Merck made stronger scientific arguments, and that Mr. Irvin had a high risk of suffering a heart attack anyway. “Personally, I felt like if it had been more of a class action or more of a general lawsuit, it would have been a different outcome,”2 29-year-old juror Amanda Toungate tells the Journal. “Pertaining to Dicky individually, he had too many risk factors to be able to say substantially that Vioxx contributed to his death.” But Merck didn’t manage to persuade all the jurors that its actions were beyond reproach. Lloyd Massey, a 37-year-old mechanical engineer, said he was voting for Merck. Still, he says, “I’m not ready to let Merck cut and run. I wouldn’t have them liable for anything, but I’m not saying I think they were 100% aboveboard.” And according to another juror, whom the Journal didn’t identify, the holdout wasn’t swayed by the majority’s argument. “Basically the sticking point was the marketing” of Vioxx, this juror said.

Lawyers for both sides tell the New York Times they were disappointed by the outcome but looked forward to retrying the case. A lawyer for Merck said the company was pleased by the Journal’s report that a lone holdout had kept the jury from finding in the company’s favor. Still, lawyers not involved in the suit said the mistrial was a bad sign for Merck3, which

had been expected to win the trial relatively easily. “Most people watching this litigation closely thought that Merck ought to win it,” said Carl W. Tobias, a law professor at the University of Richmond. “Despite the characterizations by Merck so far, I think this was really a loss for them.” Shares of Merck fell 72 cents, or 2.5O/oI to $28.41 yesterday.

Merck’s future strategies will also have to take into account last week’s admission by the New England Journal of Medicine that a 2000 article it published highlighting the advantages Vioxx omitted information about heart attacks among patients taking the drug. The ublication said the deletions were made by someone working from a Merck computer, while Merck

says the heart attacks happened after the study’s cutoff date and it did nothing wrong. The Wall Street Journal reports that as medical journals face unprecedented scrutiny of their role as gatekeeper for scientific information, questions are mounting about what it calls an open secret in medicine: Many of the articles that appear in scientific journals under the bylines of prominent academics are actually written by ghostwriters in the pay of drug companies. These seemingly objective articles, which doctors around the world use to guide their care of patients, are often part of a marketing campaign by companies to promote a product or play up the condition it treats.

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