By Matthew Herper of Forbes
A hung jury led a judge to declare a mistrial in the most recent trial related to the withdrawn painkiller Vioxx.
That may be a mixed blessing for Merck (nyse: MRK – news – people ), the drug’s maker, which is facing at least 7,000 lawsuits related to Vioxx that are likely to result in billions of dollars in damages. Vioxx was pulled from the market in September 2004 after a trial clearly showed that it increases the risk of heart attacks and strokes for at least long term users.
The case was brought by the widow of Richard “Dicky” Irvin, a 53-year-old former college football player who managed a wholesale seafood company in St. Augustine, Fla. The trial was expected to be a likely win for Merck for two reasons. First, Irvin had taken Vioxx for only a short period of time, which could make it less likely that the drug caused his heart attack. Second, the case was the first Vioxx trial in federal court, where the rules are thought to favor defendants.
But although the hung jury lets Merck off the hook for now, it falls short of a clear win and could allow plaintiffs to retry the case.
“It’s not a benefit for Merck,” says Carl Tobias, a professor at the University of Richmond who teaches product liability law. “I think most people felt it should have won this one cleanly, and it didn’t. Maybe all it did was kick the can down the road.” (See: “Merck’s Deleted Data.”)
Worse, Tobias says, the mistrial opens the door to the admission of new accusations from the editors of The New England Journal of Medicine, who says that data were deleted from the manuscript describing the largest-ever study of Vioxx, published in 2000. A computer file seems to indicate that Merck did the deleting, according to the Journals editors. One of the Merck authors in the study was Alise Reicin, who helped spearhead the development of Vioxx and has been a key Merck witness.
The future of Merck, long one of the most respected names in the drug business, may hinge on how many trials it can win on a case-by-case basis. I f it can limit losses to cases where patients used Vioxx for a long time and had few other risk factors, damages could be comparatively small. I f it cannot, they are likely to reach into the tens of billions. Some analysts have postulated worst-case scenarios as high as $50 billion.
However, this was only the third Vioxx case to be tried. Previously, Merck lost one state case, in Texas, and won another, in its home state of New Jersey. Many lawyers and analysts emphasize that it is still almost impossible at this time to guess how the litigation will turn out or how high Merck’s liability will be.
“If a retrial is scheduled, we will be right back with the same facts,” said Kenneth C. Frazier, senior vice president and general counsel at Merck, in a prepared statement. “The Vioxx litigation will go on for years. We have the resources and the resolve to address these cases, one by one, in a reasonable and responsible manner.”
Rob Gordon, a lawyer at Weitz & Luxenberg who will try one of the next Vioxx cases in New Jersey, says the judge’s decision may be based on fear about publicity regarding the Journals accusation. Gordon’s firm already has filed 600 Vioxx cases and expects to file about 2,500. He says that six of the nine jurors seemed ready to vote for the plaintiff.
Federal cases require unanimity for the plaintiff, but Gordon says Merck should have been able to win this case.
“This is a very bad signal for Merck,” says Gordon. “They can’t win the easy cases, and now their liability for future cases has gotten a whole lot worse.”
Jere Beasley, the lawyer for Irvin’s widow, in looking ahead. “It means that we’ll have another trial, and that we’ll have information in the next trial that we didn’t have in this one,” he says. “That information is misleading The New England Journal of Medicine.
“It’s information that any doctor in America ought to be shocked at what Merck did,” Beasley says. “We felt that we were going to win this case, and we feel that we’re going to win in the next case.” Beasley says his firm has filed more than 1,000 Vioxx cases and expects to file as many as 9,000 more.