Jurors deliberated about two hours Thursday without reaching a verdict in the first trial stemming from a federal lawsuit against Merck & Co. over its once-popular painkiller Vioxx.
Deliberations were to resume Friday. The nine jurors, whose decisions must be unanimous, are deciding whether Merck failed to warn about Vioxx risks, whether the painkiller was defective and whether Merck was negligent in designing and marketing the drug.
If jurors answer yes to any of those questions, they then must decide whether any of those factors contributed to the 2001 death of Richard “Dicky” Irvin, 53, of St. Augustine, Fla., whose widow is suing Merck.
On Thursday, the New England Journal of Medicine said authors of a report about a 2000 clinical study funded by Merck failed to disclose heart attacks suffered by three patients. The publication also alleges the study’s authors deleted other relevant data before submitting their article, which ran in the Journal.
Plaintiffs’ lawyers declined comment on whether they would seek a mistrial based on the journal report. Both Merck and the plaintiffs have used the study in the case.
In a statement issued Thursday afternoon, Whitehouse Station, N.J.-based Merck said it “promptly and appropriately” disclosed the study results.
That study showed that Vioxx users suffered five times as many heart attacks as users of the older painkiller naproxen. Merck said the results show that naproxen has a protective effect on the heart, much like aspirin _ not that Vioxx leads to heart attacks.
During closing arguments Thursday, plaintiff’s attorneys said Merck knew Vioxx increased heart attack risks but misled doctors and the public because the company, facing the loss of patents on several profitable drugs, needed a blockbuster replacement.
“They could take the high road to patient safety, or they could take the low road to sales,” lawyer Andy Birchfield told jurors. “What did they do? They pushed forward.”
But Merck’s lead attorney, Phil Beck, said the pharmaceutical giant issued adequate warnings based on studies showing Vioxx was safe. He said Merck scientists put patient safety first and were not sales-driven, or “evil.”
Beck said evidence showed that Irvin died not from Vioxx but from ruptured plaque in an artery that caused a blood clot. Beck said studies show Vioxx can lead to cardiovascular problems after 18 months but isn’t considered a real risk until after three years; Irvin had been on Vioxx only a month when he died.
Although Merck voluntarily took Vioxx off the market last year, jurors cannot consider that as evidence that the product was defective or the company negligent, Beck said.
This is the first federal trial over Vioxx; Merck has already lost one state trial over the drug and won another, but it still faces about 7,000 lawsuits. The Irvin case was moved to Houston from its original venue of New Orleans because of damage from Hurricane Katrina.
Birchfield urged jurors not to award anything to Irvin’s family for the loss of his estate and for funeral expenses, but to award about $350,000 to his widow, Evelyn Irvin Plunkett, and $53,000 to his youngest daughter for their loss of support and services. Birchfield said he did not know an appropriate amount for the companionship and parenting lost by Plunkett and her two youngest children, who were minors when Irvin died: “a million, $5 million, $10 million?”
If the jury finds Merck liable, the punitive damages will be determined in a later hearing. Attorneys can either just make arguments or call witnesses. Then the panel will deliberate and award punitive damages separately.
Beck said Merck acted appropriately and responsibly and urged jurors to find in the company’s favor.
“We believe our good name is at stake,” Beck said.