Merck, the US drug company, on Monday faced the prospect of a retrial in the first claim in the federal court over Vioxx, the painkiller withdrawn from sale 15 months ago because of safety fears.
A case in Texas ended in a mistrial after the jury could not reach a unanimous verdict following three days’ deliberation.
Merck’s defenses against future litigation could be threatened by an editorial in the New England Journal of Medicine last week, which alleged that the company had excluded safety data from a published study on Vioxx. Andy Birchfield, lead plaintiff’s attorney in the trial, said: “It shows Merck intentionally misled the medical community.”
Merck’s shares in New York ended Monday’s session 2.5 per cent lower at $28.41.
The Houston trial was adjudicating claims by Evelyn Irvin-Plunkett, the widow of Richard Irvin, that one month’s use of Vioxx caused the 53-year-old to die of a heart attack in 2001. Plaintiffs accused Merck of misrepresenting Vioxx’s risks, causing harm to unsuspecting patients.
The tabular content relating to this article is not available to view. Apologies in advance for the inconvenience caused.The case, the first before a federal court, was closely watched. Merck had been thought to have a good chance of winning, given that the plaintiff had used the drug for only one month.
Vioxx was withdrawn last year after a Merck study found it increased risk of heart attacks and strokes after 18 months’ use. The company faces more than 6,400 lawsuits.
Merck said it was “disappointed” by the result, but it believed its case now, and in future trials, was strong. The company argues Vioxx could not have been a factor in Mr Irvin’s heart attack, because he took it for only one month and had other heart health risk factors.
Kenneth Frazier, general counsel at Merck, said: “If a retrial is scheduled we will be right back with the same facts. The Vioxx litigation will go on for years. We have the resources and resolve to address these cases one by one in a reasonable and responsible manner.”
“The plaintiffs were not able to carry their burden [of proof]. This is in no way, shape, or form a loss for the company,” he said.
But some legal experts said the deadlock had cast doubt too on Merck’s ability to convince the jury that short-term use was not a problem. Carl Tobias, law professor at the University of Richmond, said: “Having not won, that seems to be a defeat.”
Merck disputed the idea that the NEJM claim would undermine it defense at a retrial, saying that evidence was in the public domain. It also insisted it had properly communicated safety data.
The Irvin trial was the first of lawsuits filed in federal court, which account for about half of all pending cases.
Merck has had two trials in state courts so far, which resulted in one loss and one victory for it.