HOUSTON (Dow Jones)–A lone holdout juror stood between Merck & Co. (MRK) and what would have been a crucial second Vioxx-trial victory when the U.S. federal judge overseeing the case abruptly ruled the case a mistrial, according to jurors.

That fact will take some of the sting out of Merck’s failure to convince the jury it acted responsibly in developing and marketing the painkiller.

The case, in which relatives of Richard "Dicky" Irvin alleged Merck should be held liable for a fatal heart attack he suffered after taking Vioxx for less than a month, was widely seen as the weakest of the three cases to be tried so far. The jury didn’t appear to be swayed by the plaintiffs arguments, initially voting 7 to 2 in favor of Merck. Jurors said that they thought Merck made stronger scientific arguments, and that Irvin had a high risk of suffering a heart attack anyway.

"When taken in totality, I don’t think it was Vioxx," said one juror. "Personally, I felt like if it had been more of a class action or more of a general lawsuit, it would have been a different outcome. Pertaining to Dicky individually, he had too many risk factors to be able to say substantially that Vioxx contributed to his death."

(This story and related background material will be available on The Wall Street Journal Web site, WSJ.com.)

Despite its near-win, the Whitehouse Station, N.J., company faces a tough road. More than 6,500 Vioxx cases have been filed against it, and its failure to win what appeared to be one of the weakest cases didn’t inspire confidence among investors. On Monday, Merck shares fell 72 cents, or 2.5O/0, to $28.41 in composite trading on the New York Stock Exchange. About 24.2 million shares changed hands, more than double normal daily volume.

Merck will have to defend itself in this case again. U.S. District Court Judge Eldon E. Fallon said early Monday that the nine members of the jury had deliberated for a "reasonable" length of time, and dismissed them. The jurors had told the judge during an unusual Saturday session he had called to speed the trial along that they were deadlocked. He asked them to continue trying to reach a decision, but early Monday apparently concluded they were unlikely to do so.

Judge Fallon said he would meet with lawyers for both sides as early as next week to reschedule the trial, which he said he hoped to hold in New Orleans. Judge Fallon is normally based in New Orleans, but he moved this trial to Houston because of Hurricane Katrina.

Lawyers for both sides said they were disappointed with the outcome. "We are going to keep fighting," said Jere Beasley, the plaintiff’s attorney in the case. "It’s a tie, but we believe we came up better than they did."

Phil Beck, the lead defense attorney for Merck, said he was hoping that Judge Fallon would decide to retry the case in February in place of another federal case that had been scheduled. The roughly 3,000 federal cases have been consolidated under Judge Fallon, who has said he intends to try several representative cases early next year before determining whether a settlement can be reached.

"We’re disappointed, we hoped we’d get a verdict," said Beck of the law firm Bartlit Beck. "Sometimes that’s how the system works. We’re looking-forward to the case in February."

Beck, a noted defense attorney hired by Merck to handle the trial, said that he didn’t believe the company would change its strategy for the retrial and that he expected to handle the case. "I feel we put on a good case on the science and causation and the plaintiffs did a good job as well."

“We’re not the least bit deterred will continue to "address" each case individually.

Merck faces a number of trials in the next few months, many of them much more difficult than the Houston case. In New Jersey in February, Merck will begin to try a series of trials in which the plaintiffs took Vioxx for 18 months or longer. Those trials will be a key test of Merck’s defense strategy since the company has acknowledged that Vioxx is linked with a

doubling of the risk of heart attack and stroke in people who use if daily for 18 months or longer.

In a conference call with Wall Street analysts and reporters, Frazier said the company wasn’t afraid of the 18-month cases. He said plaintiffs would still have to prove that an individual heart attack was caused by Vioxx and not the myriad other factors that plague the general population, like obesity, hypertension, high cholesterol-all factors that contribute to heart disease.

But Merck faces another hurdle after the New England Journal of Medicine charged in an editorial last week that Merck inappropriately hid three heart attacks from the journal before it published an article about a Vioxx trial. One of Merck’s star defense witnesses, Alise Reicin, was a co-author in the medical-journal article, which described a study of Vioxx versus naproxen, an older painkiller. The article said four times as many Vioxx users had heart attacks as the naproxen users, which the authors attributed to naproxen being helpful to the heart.

The study, however, actually showed that Vioxx users had five times as many heart attacks. The increase was due to the fact that an additional three heart attacks among Vioxx users happened after a certain cut-off date the authors had agreed to set earlier. The New England Journal editors said the information about the additional heart attacks should have been put into the article.

Merck used Monday’s conference call to stress that the New England Journal of Medicine had no evidence that Merck deleted heart-attack data from a disk before submitting it into the journal for publication in May of 2000. "One of the reasons I’m so frustrated by this editorial is the way it was written it has given people a false impression, repeated over and over and it’s just wrong," said Beck, who was on the conference call. Merck actually learned about the additional heart attacks in July of 2000, though the article was published in November of 2000.



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