By Jef Feeley of Bloomberg

Dec. 12 (Bloomberg) — Merck & Co. suffered a setback when a judge declared a mistrial in the third case involving its Vioxx painkiller, after a jury said they’d deadlocked on whether the drug caused a Florida man’s death.

U.S. District Judge Eldon Fallon sent the five-woman, four- man jury home today after they said they couldn’t reach a unanimous verdict on the claim that Richard “Dicky” Irvin died of a heart attack because he used Vioxx for 23 days. Merck stopped selling the painkiller in 2004 after its own study showed long-time users faced an increased risk of heart attack and strokes. Jurors in Houston deliberated 18 hours over four days.

“The mistrial is not good news for Merck,” said Carl Tobias, a University of Richmond law professor who teaches product-liability and has been following the Vioxx litigation.   “Most people thought Merck was going to win this one.”

Merck, the world’s third-largest drugmaker, was coming off its first win of a Vioxx lawsuit after a New Jersey jury rebuffed a postal carrier’s claim that the drug caused his heart attack after two months of use. A second victory would have bolstered Merck’s argument that Vioxx didn’t harm short-term users and reduced pressure on it to settle about 7,000 Vioxx suits.

Merck shares fell 72 cents to $28.41 today in New York Stock Exchange composite trading today. The company’s shares have fallen 37 percent since Merck pulled Vioxx off the market in September 2004.

New Trial

Irvin’s family said they’d seek to retry the case and may benefit from a disclosure about a Vioxx safety study that occurred after the Houston jury began deliberating. The New England Journal of Medicine asked Merck Dec. 8 to correct a 2000 Vioxx study the journal published because it undercounted heart attack incidents among subjects taking the drug.

The Irvin family argued in the first federal trial over Vioxx that Merck tried sought to hide the drug’s health risks and silence its critics.

“Merck needs to revise its strategies for dealing with these cases,” Tobias said. “They have to find a way to respond to the New England Journal’s correction request in a persuasive way. Otherwise, they are going to have serious problems going forward.”

Single Juror

Merck general counsel Kenneth Frazier said after tile mistrial was declared that the company would continue to fight each Vioxx case. A single juror refused to go along with other panelists voting in the drugmaker’s favor, one juror told the Associated Press.

Amanda Toungate, one of the five women on the panel, told the news service that she thought Merck should have done a better job of telling consumers about Vioxx’s risks. Still, the panel wasn’t convinced Vioxx caused Irvin’s heart attack.

“He had too many other risk factors,” Toungate told the AP.

Merck said that the mistrial doesn’t amount to a loss for the company.

“We see nothing in this result to causes us to believe we can’t defend these cases,” Frazier said in a telephone news conference.

Whitehouse Station, New Jersey-based Merck, which has set aside $675 million to fight Vioxx suits and nothing for liability, ultimately may have to defend 100,000 such claims, Fallon said.


“We’re obviously disappointed we didn’t get a verdict,” Merck lawyer Phil Beck said. “We’re looking forward to the opportunity to present our case again as soon as possible.”

In the first case to go to trial, a Texas state court jury ordered Merck in August to pay $253 million to the family of a man who died after taking the drug for eight months. The verdict probably will be reduced to about $25 million under Texas law.

Irvin, a 53-year-old manager of a St. Augustine, Florida- based seafood distributor, died in May 2001 after taking Vioxx for lower-back pain. Lawyers for his family argued at the trial that the former college football player was in good health and that Vioxx caused his sudden heart attack.

Merck’s lawyers countered that Irvin’s age, weight, clogged arteries and family history are to blame for his death. They also dispute that Vioxx caused heart attacks in anyone who took it for less than 18 months.

Fallon scheduled a hearing for next week to set a new trial date in the Irvin case. The family’s lawyers said they’d push for a quick retrial.

Cleveland Clinic

”Things happened after the jury began deliberating that had an impact” on the case, Irvin family lawyer Jere Beasley said. He cited the correction demand and the fact that a key witness for the Irvin family, Dr. Eric Topol of the Cleveland Clinic, was stripped of two leadership positions at the facility after he testified.

Topol, a cardiologist and Vioxx critic, was removed as provost and chief academic officer at the clinic’s medical school two days after he testified that the drug increases the risks of heart attacks and strokes. He remains chairman of the clinic’s cardiovascular medicine department. The clinic denied the changes were related to his Merck testimony.

The journal’s demand to correct the study showed how “Merck misled the medical community” on Vioxx’s health risks, Andy Birchfield, another Irvin family lawyer said.


Beck countered that the New England Journal of Medicine request for a correction on Merck’s Vioxx study stemmed from a ‘huge misunderstanding’.

The study’s authors had a pre-set date for cutting off its data for publication of the study, he said. After the deadline, the company continued to report additional data to the U.S. Food and Drug Administration, he said.

“The idea that we were withholding data is absurd,” Beck said. “We were providing data to the FDA.”

The correction demand and Vioxx’s admission on the risks of long-term use will be likely topics at the next Vioxx trial, which is scheduled for Feb. 27 in state court in New Jersey. Two Vioxx users claim they suffered heart injury after using the drug for more than 18 months.

Fallon, who presided over the Irvin case, pushed lawyers to finish the trial in two weeks. The New Orleans-based judge moved the case to Houston after Hurricane Katrina sparked flooding that ravaged his home city.

Beck said today that Fallon had indicated that he prefers to try the next case in Louisiana. He said the next federal case could be in Baton Rouge.

The case is Plunkett vs. Merck & Co., 05-MD-1657, U.S. District Court, Eastern District of Louisiana.

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