Thank you for sharing!

Your article was successfully shared with the contacts you provided.
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.

This content has been archived. It is available exclusively through our partner LexisNexis®.

To view this content, please continue to Lexis Advance®.

Not a Lexis Advance® Subscriber? Subscribe Now

Why am I seeing this?

LexisNexis® is now the exclusive third party online distributor of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® customers will be able to access and use ALM's content by subscribing to the LexisNexis® services via Lexis Advance®. This includes content from the National Law Journal®, The American Lawyer®, Law Technology News®, The New York Law Journal® and Corporate Counsel®, as well as ALM's other newspapers, directories, legal treatises, published and unpublished court opinions, and other sources of legal information.

ALM's content plays a significant role in your work and research, and now through this alliance LexisNexis® will bring you access to an even more comprehensive collection of legal content.

For questions call 1-877-256-2472 or contact us at [email protected]


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2020 ALM Media Properties, LLC. All Rights Reserved.