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A federal judge this morning declared a mistrial in the nation’s first federal Vioxx trial after a Southern District of Texas jury was unable to decide on a verdict. U.S. District Judge Eldon Fallon of New Orleans, who was presiding over the suit in Houston because of Hurricane Katrina damage to New Orleans, declared the mistrial in Evelyn Irvin Plunkett, et al. v. Merck & Co. The nine-member jury started deliberations at about noon on Dec. 9. In the suit, the family of a 53-year-old Florida man, Richard Irvin Jr., alleged Merck should be liable in connection with his death from a heart attack in 2001 because he took the pain-killer for a few weeks in 2001. Irvin’s widow, Evelyn Irvin Plunkett, sued Merck on behalf of Irvin’s two minor children and his estate. In its defense, Merck, of Whitehouse Station, N.J., maintains Vioxx did not cause Irvin’s heart attack. “If a retrial is scheduled we will be right back with the same facts,” Kenneth C. Frazier, senior vice president and general counsel of Merck said in a Dec. 12 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.” Defense lawyer Philip Beck, a partner in Bartlit Beck Herman Palenchar & Scott in Chicago, says Merck is disappointed the jury didn’t reach a verdict, but the company is ready to retry the suit. Because Fallon instructed the lawyers not to speak with jurors following the trial, Beck says it’s difficult to speculate on what happened in the jury room. “There was a fairly complex verdict form that had lots of questions, and of course they have to come to unanimous agreement on every single question. We don’t know whether they got past question No. 1, or got all the way to the end,” Beck says. The jury was asked to consider if Merck failed to warn Irvin’s doctor of a known risk associated with Vioxx, whether Merck’s failure to warn was a “legal cause” of Irvin’s death, whether Vioxx was a defective product or based on a defective design, and if a defective design was a legal cause of Irvin’s death. The jury was also asked to decide if Merck was negligent in connection with the drug or in failing to warn Irvin’s doctor of a “dangerous condition” of Vioxx, and if that alleged negligence was a legal cause of Irvin’s death. Plaintiffs’ lawyer Jere Beasley says, “I don’t like moral victories. We would much preferred to have had a verdict.” Beasley, a shareholder in Beasley, Allen, Crow, Methwin, Portis & Miles in Montgomery, Ala., says he’s ready to retry the suit early next year. Plunkett was the first federal Vioxx suit to go to trial, and a verdict would have broken the 1-1 win-loss tie between plaintiffs and the pharmaceutical company. In August, a state court jury in Angleton, located 30 miles south of Houston, returned a $253.5 million verdict for the plaintiffs in the nation’s first Vioxx trial. In November, a state court jury in New Jersey returned a defense verdict. Plunkett began on Nov. 29. Fallon is the judge presiding over the federal multidistrict Vioxx litigation.
Brenda Sapino Jeffreys is a senior reporter with Texas Lawyer.

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