The federal Vioxx trial in Houston was ruled a mistrial, leaving Merck, the maker of the painkiller, having to try the case again while fending off thousands of other suits claiming that the drug causes heart attacks.

U.S. District Judge Eldon Fallon reportedly declared the mistrial on the fourth day of jury deliberations after one juror refused to go along with 8 others in finding Merck not at fault in the death of Richard Irvin, a Florida man who took Vioxx to treat back pain and later died of a heart attack. Federal verdicts require unanimity.

Jurors were apparently convinced by Merck’s scientific arguments and indications that Irvin’s medical condition made him a likely candidate for a heart attack unrelated to Vioxx. Irvin had taken Vioxx for only a month before he died.

Merck pulled Vioxx from the market in 2004 after a study linked the drug to an increased risk of heart attacks and strokes in patients taking it for 18 months or longer.

The Houston trial was the first federal case involving Vioxx. Merck, which has vowed to fight every lawsuit, lost a case in state court in Texas and won a case in New Jersey. Merck faces about 7,000 pending state and federal Vioxx lawsuits. Next in line is a round of state trials in New Jersey, where it is headquartered.

One of Irvin’s lawyers, Andy Birchfield, called the end result disappointing. "We thought we made a very strong case with the top cardiologist in the world showing the risks can be immediate," he told the Wall Street Journal.

Merck’s lawyers said the company is prepared for a retrial, if that becomes necessary.

"We presented evidence that there is no medical or scientific evidence showing short-term use of Vioxx increases the risk of heart attack and no evidence that it contributed in any way to the unfortunate death of Richard Irvin," said Merck’s attorney, Philip Beck, of the law firm of Bartlit Beck, in a statement. "Mr. Irvin only took Vioxx for less than a month. He suffered multiple long-standing risk factors for a heart attack including partially clogged arteries. We believe that Mr. Irvin would have suffered a heart attack when he did, whether he was taking Vioxx or not."

"If a retrial is scheduled we will be right back with the same facts," said Kenneth C. Frazier, senior vice president and general counsel of Merck. "The Vioxx litigation will go on for years. We have the resources and the resolve to address these cases, one by one, in a reasonable and responsible manner."

The Irvin case was originally scheduled for federal court in New Orleans where Judge Fallon sits but was tried in Houston because of the effects of Hurricane Katrina. Judge Fallon said he plans to reschedule trials in New Orleans starting in February 2006.



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