By Anne Belli and Tom Fowler of The Houston Chronicle
A mistrial in the nation’s first federal Vioxx trial – which ended when a lone juror held out for the plaintiffs spells trouble for drug giant Merck, several legal analysts said Monday.
Although neither side scored a victory, Merck was favored by many to win the case in part because it centered around the death of a man who used the once-blockbuster drug for just 22 days.
Merck officials pulled Vioxx from the market last year after a study showed that it doubled the risk of heart attacks and strokes in patients who took it for 18 months or longer.
But the company has held that there is no evidence of any such risk in short-term users of Vioxx.
“I don’t think this case offers any comfort to Merck in cases where the decedent was a long-term user,” said Stanford Law School professor Robert Rabin.
One member of the nine-person jury, however, apparently remained unconvinced of Merck’s argument, and expressed frustration at other panel members who sided with the company.
Plaintiffs attorneys “have a hard time getting a fair trial” in Houston, one juror, who asked not to be named, told the Houston Chronicle.
Eight jurors sided with Merck, a source familiar with the deliberations said.
At issue was whether Vioxx caused the death of 53-year-old Richard “Dicky” Irvin, a Florida seafood salesman who died from a blood clot-induced heart attack after taking Vioxx for back pain.
His widow, Evelyn Irvin Plunkett, argued that her husband was in good health and that Merck failed to warn doctors and the public that the popular prescription painkiller could cause heart attacks and strokes.
She presented testimony from several experts who said that Vioxx could cause such adverse effects even in short-term use and that Merck knew or should have known of the dangers long before Irvin’s death.
Merck, however, held that Irvin had undetected clogged arteries and that Vioxx had nothing to do with his death. It said it acted responsibly throughout the development and marketing of Vioxx.
Both sides said after the verdict that they were disappointed, but looked forward to taking the case to another jury, perhaps as soon as February.
“We would have liked to put closure to it,” Plunkett said. “But we have to push forward. We can’t stop.”
Merck attorney Phil Beck said he looked forward to trying the case but that it again wouldn’t be easy.
“The experts who thought it was going to be an easy case, none of them was on my trial team,” Beck said outside the courthouse. “And in a case federal court where you have to have a unanimous verdict also makes it more difficult.”
But many legal experts believed the federal courtroom, with its stricter rules and more business-friendly environment, would work in Merck’s favor.
Perhaps more significant, however, was the fact that the case involved short-term use of Vioxx, which seemed to favor the defense, they said.
“If Merck can’t win these short-term cases, that certainly doesn’t bode well for their defense in long-term cases,” South Texas College of Law associate professor Charles Rhodes said.
Andy Birchfield, co-lead counsel for the plaintiffs in the federal multi-district litigation involving Vioxx, said he’ll ask U.S. District Judge Eldon Fallon to let him tell jurors in a retrial that Merck allegedly withheld key data when reporting the results of a major Vioxx study to the New England Journal of Medicine five years ago.
Jurors were told the correct data at the trial, Birchfield said, but they did not know that Merck apparently misreported the data initially.
He added that Plunkett’s attorneys asked for a mistrial in the case Friday morning after learning of the allegations, but the judge did not rule on that motion.
Carl Tobias, a professor at the University of Richmond, said that evidence could deliver a sharp blow to Merck’s defense that it has acted responsibly.
“Their biggest defense is that ‘We are an honest forthright company,’ ” he said. “This cuts against that.”
Tobias also noted that one of Merck’s lead witnesses was Dr. Alise Reicin, the company researcher who designed the Merck study and co-authored the journal article.
Rhodes said that the new evidence could sway a jury because it will provide “a lens they view that scientific data through.”
Beck brushed aside the journal flap, however, and said plaintiffs lawyers have been well aware of the corrected data for a long time.
Merck won a state Vioxx case in November after a jury found that the painkiller did not contribute to the non-fatal heart attack of an Idaho postal worker.
But a Brazoria County jury in August awarded $253 million to the widow of a former marathon runner who died in his sleep after taking Vioxx. That verdict likely will be reduced to less than $30 million under state damage caps.
Merck faces an estimated 7,000 Vioxx cases, and the company has said it will fight each one. Beck said the deadlocked jury doesn’t affect that strategy.