Vioxx Suit Ends With Hung Jury
The nation’s first federal Vioxx trial ended Monday with a hung jury, heightening uncertainty about the outcome of thousands of suits pending against drug giant Merck & Co. over the once-popular painkiller.
U.S. District Judge Eldon Fallon declared a mistrial in the Houston case after jurors failed to agree on a verdict.
Merck said it was ready to try the case again from scratch, but investors reacted pessimistically, sending its stock down 72 cents Monday, or 2.5%, to $28.41.
The mistrial followed last week’s revelation by the New England Journal of Medicine that Merck researchers omitted three heart attacks from data included in a key study linking Vioxx with heart problems. The journal issued an “expression of concern” regarding the omission late Thursday after testimony in the Houston trial had ended.
The case was considered a strong one for Merck, which faces more than 6,500 suits blaming Vioxx for heart attacks, strokes and deaths. Analysts have estimated the litigation could eventually cost the company $50 billion.
“That was their case to win,” said Mark Robinson, a Newport Beach lawyer representing Vioxx plaintiffs. “They had a lot of very good facts for them.”
Jason Napodano, a senior analyst with Zachs Investment Research, agreed, saying the mistrial was a surprise because of Merck’s contention that there was no statistical evidence of heart problems in patients, like the subject of the trial, who took Vioxx for a short time.
“This is a trial they should have won,” he said.
Merck general counsel Kenneth C. Frazier sought to cast the outcome in a positive light, saying, “The plaintiffs were unable to sustain their burden of convincing a jury that there was reliable evidence that Vioxx contributed in any way to the unfortunate death of Mr. [Richard] Irvin.”
Most jurors agreed with the company, according to members of the panel who told Associated Press that only one of the nine jurors refused to absolve Merck of liability.
But plaintiffs’ lawyers said the case pointed up the company’s vulnerability.
The suit was brought by the widow of Irvin, who claimed that Vioxx caused his fatal heart attack in 2001 at age 53. Defense lawyers pointed out that Irvin had clogged arteries and had used Vioxx for less than a month.
“This trial shows that some of the jurors were persuaded that you can have a heart attack caused by Vioxx even if you used the drug for 24 days,” said Don Arbitblit, a San Francisco lawyer for Vioxx plaintiffs. “That has to be a concern to Merck.”
Analysts saw the Irvin case as key for determining momentum in the Vioxx litigation because Merck has won a case and lost a case.
After a Texas jury handed Merck a $253-million loss in August, a New Jersey jury granted the company a victory last month.
The next Vioxx trial is scheduled for February. Although it also is in New Jersey, Merck’s home state, legal experts say it could be harder for Merck to win because the judge has said she wants to try two cases involving long-term users together. Each suit alleges Vioxx caused a heart attack after 18 months of use, and one of the plaintiffs is represented by Mark Lanier, the Texas lawyer who won the first trial in August.
Merck believes that a consolidated trial would put the company at an unfair disadvantage, and its lawyers plan to ask the judge to separate them.
“We believe that every case is different from the next,” Merck’s Frazier said. “We have the right to defend each and every case on its own facts.”
The New England Journal of Medicine’s criticism of Merck scientists is expected to debut in one of the next few trials, at which legal experts said it would strengthen plaintiffs’ cases.
Plaintiffs’ lawyers, who unsuccessfully sought a mistrial after the journal’s note was published, said it might have tipped the scales in the Houston case -- and still might if there was a retrial.
The decline in Merck’s share price Monday shows investors reacting to the mistrial as well as the journal’s criticism, analyst Napodano said.
“It will be harder for Merck to win the minds of jurors if they really start to believe the company covered up data,” he said.
The Houston jury got the case late Thursday around the time the New England Journal of Medicine posted its expression of concern on its website, noting that two Merck scientists held out of the article three of 20 heart attacks among the study group of Vioxx users even though they were aware of the incidents more than four months before publication. The journal editors criticized the authors, saying the omission made Vioxx appear safer than it was.
Because the judge barred lawyers from talking to jurors, Merck lawyers said they didn’t know whether the jurors were aware of or influenced by the news coverage of the journal’s censure of the Merck scientists. Jurors were not sequestered.
Merck’s lawyers said they did not believe the journal censure would hurt the company in future trials because the scientists reported the additional heart attacks to the Food and Drug Administration in October 2000, a month before the journal article was published, and subsequently included it in news releases.
Although Frazier said the company would continue to fight the suits in court, legal experts expect the company to eventually seek a broad settlement once they’ve determined the value of various cases across several states.
“They need to try cases in different jurisdictions, and they need to try different kinds of cases -- stronger ones, weaker ones, ones where the particular facts of the plaintiff’s life might be amenable to a Merck win,” said New York University law professor Stephen Gillers.
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Times staff writer Molly Selvin contributed to this report.
