The nation’s first federal Vioxx trial ended Monday with a hung jury, but the judge said the case, involving the 2001 death of a Florida man who took the once-popular painkiller for a month, will be retried.
The mistrial leaves Vioxx’s maker Merck & Co. with the prospect of facing a new jury that could hear allegations that the company withheld information from the New England Journal of Medicine from a 2000 study so the drug would appear safer.
About 20 million people took Vioxx before Merck withdrew what had become a $2.5 billion seller from the market last year when a separate, longer-term study showed it could double the risk of heart attack or stroke if taken for 18 months or longer.
“You can’t lie to people like the New England Journal of Medicine and get away with it,” said plaintiff’s lawyer Jere Beasley. “We look forward to the next trial.”
Merck lead attorney Philip Beck said last week’s revelations from the medical journal would be a “non-issue” in a retrial and that Merck supplied all the updated safety data to the Food and Drug Administration before the journal article was published.
The jury’s inability to reach a unanimous verdict apparently was unrelated to the journal revelations late last week, after deliberations began. The journal reported Thursday that authors of a report about the Merck-funded study omitted three patients’ heart attacks in the data they submitted to the journal, making it appear that Vioxx caused four times, rather than five times, as many heart attacks as the painkiller naproxen.
The 2000 study, called VIGOR, has figured heavily in the first three Vioxx trials—one in a Texas state court that Merck lost, another in its home state of New Jersey that the company won, and in the federal case tried in Houston.
Merck disclosed the full number of heart attacks to the FDA that year.
The mistrial means Merck gained no momentum in battling about 7,000 pending Vioxx lawsuits, with potentially billions of dollars in payouts.
The nine-member jury was about 20 minutes into its fourth day of deliberations when U.S. District Judge Eldon Fallon called the jurors in and reminded them they had agreed Saturday to reach a verdict in a “reasonable time.”
“It has now been a reasonable time. We cannot get a verdict,” Fallon said, declaring a mistrial. Federal litigation requires a unanimous verdict.
The jury could not decide whether Merck was liable in Richard “Dicky” Irvin’s 2001 death and whether the company failed to issue safety warnings that the drug could have serious cardiovascular side effects.
Merck shares fell 72 cents to $28.41 Monday in composite trading on the New York Stock Exchange. The stock has fallen 37 percent since Merck stopped selling Vioxx in 2004.