By Alex Berenson of The New York Times
In a setback for Merck, a federal judge in Houston declared a mistrial today in Plunkett v. Merck, the third Vioxx lawsuit to reach trial, after jurors said they were hopelessly deadlocked.
The panel of nine jurors had debated for about 18 hours on Thursday, Friday, and Saturday. The lawsuit was brought by Evelyn Irvin Plunkett, the widow of Richard Irvin Jr., who died in May 2001 after taking Vioxx for less than a month.
Judge Eldon E. Fallon of Federal District Court in New Orleans declared a mistrial at about 9:00 a.m. local time and sent jurors home this morning after they reported they could not reach a verdict. On Saturday, Judge Fallon had given jurors a so-called “Allen charge,” designed to encourage them to reach consensus.
The lawsuit was tried in Houston instead of New Orleans because of damage from Hurricane Katrina. The case will probably be tried again early next year, and Judge Fallon has said that he hopes it can be heard in New Orleans.
The mistrial leaves Merck with one win and one loss in its legal campaign to defend its decision to market Vioxx, once a popular painkiller for chronic conditions like arthritis. In August, the company stunned investors by losing a state trial in South Texas, but it successfully defended itself last month in a New Jersey state court. The trial was the first of the Vioxx cases to be tried in federal court.
Lawyers for both sides said they were disappointed by the outcome but looked forward to retrying the case. But lawyers not involved in the suit said the mistrial was a defeat for Merck, which had been expected to win the trial relatively easily following its victory last month in New Jersey.
“Most people watching this litigation closely thought that Merck ought to win it,” said Carl Tobias, professor of law at University of Richmond. “Despite the characterizations by Merck so far, I think this was really a loss for them.”
Shares of Merck fell 72 centstoday, to $28.47, a drop of 2.5 percent.
Unlike state courts, federal courts require unanimous verdicts in civil cases. Lawyers involved in the case said today that they did not know whether jurors in the Plunkett case had ever been close to a verdict, or how the jury had split. Jurors did not speak to reporters after being dismissed, and Judge Fallon’s office did not return calls asking if the court planned to make public the jurors’ names.
More than 6,000 people have sued Merck, claiming they or their family members were injured or killed after taking Vioxx, which Merck stopped selling last year after the drug was linked to heart attacks and strokes. As many as 100,000 lawsuits are expected, and some Wall Street analysts say Merck could eventually have to pay as much as $50 billion to settle all the cases.
“This is a huge loss for Merck,” said W. Mark Lanier, a plaintiffs lawyer who defeated Merck in the first Vioxx lawsuit to reach a jury, in Angleton, Tx., in August. “Merck will never find an easier case to win.”
Mr. Irvin took Vioxx for only a few weeks, and federal court is usually considered more friendly than state court to corporate defendants in civil lawsuits.
“The juries you draw in federal courts are more favorably inclined to institutional defendants,” Mr. Tobias said. In addition, Mr. lrvln’s wldow, Evelyn, had remarried, making jurors less likely to sympathize with her.
But Philip Beck, Merck’s lead trial counsel in the caie, said he believed Merck had presented a strong case and did not view the decision as a defeat for the company. Jurors tend to sympathize with a plaintiff whose family member has died, he said.
“Any case where you have a death involved is by definition a difficult case,” Mr. Beck said. “While we’re disappointed we didn’t get a verdict in the case, we look forward to our opportunity to try it again.”
Merck said in a statement that it was prepared for a retrial if necessary and reiterated its position in the case: “We believe that Mr. Irvin would have suffered a heart attack when he did, whether he was taking Vioxx or not.”
Unlike the first two trials, which were conducted in state court and lasted for several weeks, this trial took only two weeks. But lawyers-for-both-sides said they-felk they had adequate time to present their cases and that Judge Fallon had been – fair.
“I don’t have any qualms about the short trial schedule,” said Andy Birchfeld, who represented Ms. Plunkett. “There was not time for the jury to get bored, I hope.”
Kenneth L. Frazier, Merck’s general counsel, said the mistrial does not alter Merck’s strategy of continuing to bring lawsuits to trial. “We expect trials to take place in federal and state court through 2006,” Mr. Frazier said.
Judge Fallon is overseeing the process of discovery for all the Vioxx-related lawsuits that have been filed against Merck in federal court. As of Sep. 30, there were about 2,900 federal lawsuits, representing 6,300 groups of plaintiffs, according to Merck. Carol E. Higbee, a New Jersey state court judge, is overseeing another 2,750 suits, and several hundred more have been filed in assorted state courts.
Judge Fallon has scheduled trials for February, March, and April, while Judge Higbee has asked both sides to prepare to try two lawsuits in a single consolidated trial beginning on Feb. 27, a proposal that Merck opposes.
“We believe that every case is different from the next,” Mr. Frazier said.
As jurors began their deliberations on Thursday, Merck came under fire from the New England Journal of Medicine. In an editorial posted on its Web site, the journal reported that it had discovered that scientists at Merck had hidden information about Vioxx’s heart risks from an article that the journal had published in November 2000.
The editorial received widespread attention on Thursday and Friday, and on Friday, lawyers for Ms. Plunkett asked for a mistrial, citing the Journal’s editorial. But Judge Fallon did not rule on the request, and it was unclear whether or not the journal article played any part in the jury’s deliberations.