In an apparent setback for Merck, a federal judge in Houston declared a mistrial yesterday in Plunkett v. Merck, the third Vioxx lawsuit to reach trial, after jurors said they were hopelessly deadlocked.
The panel of nine jurors had debated for about 18 hours on Thursday, Friday and Saturday. The lawsuit was brought by Evelyn Irvin Plunkett, the widow of Richard Irvin Jr., who died at age 53 in May 2001 after taking the Merck painkiller Vioxx for less than a month.
Judge Eldon E. Fallon of Federal District Court declared a mistrial at about 9 a.m. local time and sent jurors home yesterday morning after they reported they could not reach a verdict.
On Saturday, Judge Fallon had read jurors a so-called Allen charge, a set of instructions encouraging them to try harder to reach consensus.
The lawsuit was tried in Houston instead of New Orleans, where Judge Fallon is usually based, because of damage from Hurricane Katrina. The case will probably be tried again early next year, and Judge Fallon has said that he hopes it can be heard in New Orleans.
Lawyers for both sides said they were disappointed by the outcome but looked forward to retrying the case. And a lawyer for Merck said the company was pleased by a report that a lone holdout had kept the jury from finding in the company's favor.
Still, lawyers not involved in the suit said the mistrial was a bad sign for Merck, which had been expected to win the trial relatively easily after its victory last month in a similar case in a New Jersey state court.
"Most people watching this litigation closely thought that Merck ought to win it," said Carl W. Tobias, a law professor at the University of Richmond. "Despite the characterizations by Merck so far, I think this was really a loss for them."
Shares of Merck fell 72 cents yesterday, to $28.41, a drop of 2.5 percent.
Unlike state courts, federal courts require unanimous verdicts in civil cases. Lawyers involved in the case said yesterday that they did not know whether jurors in the Plunkett case had ever been close to a verdict, or how the jury had split. Judge Fallon's office did not return calls asking if the court planned to make the jurors' names public.
In an article on its Web site last evening, The Wall Street Journal reported that jurors it did not identify had said the jury had deadlocked 8 to 1, with the majority favoring Merck.
In state and federal courts, more than 6,000 people have sued Merck, claiming they or their family members were injured or killed after taking Vioxx, a once-popular painkiller that Merck stopped selling last year after the drug was linked to heart attacks and strokes. As many as 100,000 lawsuits are expected, and some Wall Street analysts say Merck could eventually pay as much as $50 billion to settle all the cases.
"This is a huge loss for Merck," said W. Mark Lanier, a plaintiffs' lawyer, said yesterday. Mr. Lanier defeated Merck in August in the first Vioxx lawsuit to reach a jury, in state court in Angleton, Tex. "Merck will never find an easier case to win."
Mr. Irvin took Vioxx for only a few weeks, and the case was heard in federal court. Such courts are usually considered more friendly than state courts to corporate defendants in civil lawsuits because federal courts have stricter rules of evidence. And federal judges typically give less leeway to the theatrics favored by some plaintiffs' lawyers.
"The juries you draw in federal courts are more favorably inclined to institutional defendants," Professor Tobias said. In addition, Mr. Irvin's widow, Evelyn, had remarried, making jurors less likely to sympathize with her.
But Philip S. Beck, Merck's lead trial lawyer in the case, said he believed Merck had presented a strong case and did not view the decision as a company defeat. Jurors tend to sympathize with a plaintiff whose family member has died, he said.
"Any case where you have a death involved is by definition a difficult case," Mr. Beck said. "While we're disappointed we didn't get a verdict in the case, we look forward to our opportunity to try it again."
Unlike the first two trials, which were conducted in state courts and dragged on for several weeks, this trial took only two weeks. But lawyers for both sides said they felt they had adequate time to present their cases and that Judge Fallon had been fair.
"I don't have any qualms about the short trial schedule," said Andy Birchfield, who represented Ms. Plunkett. "There was not time for the jury to get bored, I hope."
Kenneth C. Frazier, Merck's general counsel, said the mistrial did not alter Merck's strategy of continuing to bring lawsuits to trial, rather than pursue blanket settlements.
"We expect trials to take place in federal and state court through 2006," Mr. Frazier said.
Judge Fallon is overseeing the process of discovery for all the Vioxx lawsuits that have been filed against Merck in federal court. As of Sept. 30, there were about 2,900 federal lawsuits, representing 6,300 groups of plaintiffs, according to Merck.
Carol E. Higbee, a New Jersey state court judge, is overseeing about 2,750 suits filed in that state, where Merck is based. Several hundred more have been filed in various other state courts.
Judge Fallon has scheduled trials for February, March and April, while Judge Higbee has asked both sides to prepare to try two lawsuits in a consolidated trial beginning on Feb. 27, a proposal that Merck opposes.
"We believe that every case is different from the next," Mr. Frazier said.
As jurors began their deliberations on Thursday, Merck came under fire from The New England Journal of Medicine, which reported that scientists at Merck had hidden information about the heart risks of Vioxx from an article that the journal had published in November 2000.
The article received widespread attention on Thursday and Friday, and lawyers for Ms. Plunkett cited it on Friday, asking for a mistrial. But Judge Fallon did not rule on the request, and it was unclear whether the journal article played any part in the jury's deliberations.
