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Judge declares mistrial in federal Vioxx case

Oct 13, 2005 | AP

Conventional wisdom said the first federal Vioxx trial was Merck & Co.'s to lose.

The Florida man whose 2001 death of a heart attack lay at the center of the case took the once-popular painkiller for just a month. Richard "Dicky" Irvin got the prescription from his son-in-law without a medical checkup. His arteries were more than 50 percent clogged in some places.

Merck insisted that no science showed that Vioxx could heighten the risk of heart attacks or strokes unless taken for 18 months or more. A long-term study showing that 18 months of constant use could increase the chances of a heart attack prompted the company to withdraw the painkiller from the market in September last year.

But jurors couldn't reach a unanimous verdict as required in federal court after more than 18 hours of deliberations, prompting U.S. District Judge Eldon Fallon to declare a mistrial Monday.

Two jurors who voted in favor of Merck told The Associated Press that only one of the nine jurors refused to absolve the company of liability.

One of those jurors, Amanda Toungate, said she didn't believe that the drug caused Irvin's death but added that Merck should have done a better job telling patients about Vioxx's risks.

Irvin's widow, although disappointed, matter-of-factly accepted the outcome and nodded as her attorneys vowed to retry the case.

"I know in my heart my husband had died because of Vioxx, and I had to push forward because of that," Evelyn Irvin Plunkett said.

The mistrial also leaves Merck facing a new jury that could hear allegations that the company withheld information from the New England Journal of Medicine about a 2000 Vioxx study so the drug would appear safer than it was.

Merck shares (ticker: MRK) closed down 72 cents, or nearly 2.5 percent, at $28.41 as the trial's outcome shook investors worried about the company's liability in the face of some 7,000 pending Vioxx cases.

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