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Mistrial declared in Merck case
Federal judge acts on fourth day of deliberations in latest Vioxx lawsuit.
December 13, 2005: 1:01 PM EST
By Aaron Smith, CNNMoney.com staff writer

NEW YORK (CNNMoney.com) - A federal judge declared a mistrial Monday in the latest lawsuit against Merck concerning its painkiller Vioxx, attorneys for both the plaintiff and drugmaker said.

Judge Eldon Fallon, presiding over the third Vioxx suit against the drug against Merck, declared the mistrial. The company's stock was down more than 3 percent in midday trading following the announcement.

(Read the lawsuit filed against Merck by Evelyn Plunkett.)

Merck (Research) lawyers said they were disappointed that the jury could not reach a verdict and requested that a retrial be held in February.

"We are prepared to defend this and other cases in the future," said Kenneth Frazier, senior vice president and general counsel for Merck, in a Web conference with the press. "There are many more trials to come. We remain committed to addressing these cases one by one in a responsible manner in the coming years."

Evelyn Irvin Plunkett of St. Augustine, Fla., sued Merck (Research) for death of her husband, Richard Irvin, who took the arthritis painkiller for about one month and died of a heart attack in 2001.

The non-sequestered jury in the Plunkett v. Merck trial began deliberations Thursday, just before the New England Journal of Medicine reported that Merck had deleted information from a study they provided to the journal in 2000. Merck has denied the claim.

Jere Beasley, plaintiff lawyer and senior partner at Beasley Allen, said he would have preferred a verdict, and that he wished he'd known about the medical report before the jury went into deliberations.

"If we would have had that information, the jury would have been out in an hour," said Beasley, implying that the jury would have held Merck liable. "They just flat out lied to the medical community."

Merck's lead lawyer in the case, Philip Beck of Bartlit Beck, denied that Merck did anything wrong, and said that the editorial in the New England Journal of Medicine was inaccurate. Beck disputed the claim that Merck had deleted information about Vioxx's cardiovascular risks from a study provided to the medical journal.

Beck told reporters that Merck deleted a table containing the information, but the information was present in the text portion of the study that was sent to the journal. Also, Beck said Merck provided the data separately to the medical journal and the Food and Drug Administration.

The nation's second-largest drugmaker still faces about 6,500 lawsuits over the arthritis painkiller that it pulled from the market on Sept. 30, 2004 after a study showed an increased risk of heart attacks and strokes in patients using Vioxx for at least 18 months.

Plunkett's case was the first federal lawsuit among nearly 3,000 filed in federal court under Fallon, who is based in New Orleans but was moved to Houston following Hurricane Katrina. Plaintiffs are blaming Vioxx for a slew of heart attacks, while Merck maintains that Vioxx hasn't killed anyone and vows to fight every case.

Merck's lawyers said the next federal case might be held in Louisiana, possibly in Fallon's original court seat in New Orleans, or in Baton Rouge. "Obviously, it's going to be a challenge putting together a jury in New Orleans," said Beck.

Merck's lawyers said the next three federal cases are slated for January, February and March. As for state cases, the lawyers said two consolidated cases would be tried in New Jersey beginning Feb. 27 and two Texas cases would be tried in March and April.

The first three cases all involved patients who took Vioxx for less than 18 months.

Merck won the second case in New Jersey Superior Court in Atlantic City on Nov. 3 against Frederick Humeston, a Vietnam veteran and postal carrier who suffered a non-fatal heart attack in 2001. Humeston had been taking Vioxx to alleviate pain from knee injuries. Merck's legal defense attacked Humeston's credibility.

Merck lost the first case in Texas District Court in Angleton, near Houston, on Aug. 22. Plaintiff Carol Ernst sued Merck for the 2001 fatal heart attack of her husband, Robert Ernst. Ernst was awarded $253 million by the jury, though state law caps her damages at $26 million plus interest, according to her lawyer Mark Lanier. Lanier managed to present Ernst in a sympathetic light to jurors, while demonizing Merck.

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To read the lawsuit filed against Merck, click here.

To read about the New England Journal of Medicine controversy, click here.  Top of page

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