December 13, 2005

Merck will employ the same strategy it used in the first trial if a U.S. judge proceeds as expected and schedules a retrial in a Vioxx case that recently ended in a hung jury.

Judge Eldon Fallon of the U.S. District Court for the Eastern District of Louisiana recently declared a mistrial in the Vioxx (rofecoxib) case after the nine-member jury deadlocked over the weekend after two days of deliberations. The lawsuit, Plunkett v. Merck, was filed by the family of 53-year-old Richard Irvin, claiming Merck's now-withdrawn painkiller Vioxx caused him to have a fatal heart attack.

"If a retrial is scheduled we will be right back with the same facts," said Kenneth Frazier, senior vice president and general counsel of Merck. "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."

Merck's lawyers argued that there is no medical or scientific evidence showing short-term use of Vioxx increases the risk of heart attack, and no evidence the drug contributed to Irvin's death. Irvin took Vioxx for roughly one month leading up to his death.

Fallon is scheduled to meet with lawyers in the case on Dec. 16 to discuss scheduling a retrial, which could occur as early as February.

Although many observers had expected Merck to win the trial because the plaintiff had taken Vioxx for such a short period of time, reaction to the mistrial was mixed among financial analysts.

"Merck should have won, so in a way this is a little setback," said independent healthcare analyst Hemant Shah of HKS & Co. in Warren, N.J. "It's not a loss, but it's not a victory either, which it should have been."

Morgan Stanley pharmaceuticals analyst Jami Rubin, though, called the outcome a bigger setback for the plaintiffs, indicating the jury deadlock showed they didn't prove their case. "This mistrial sends a message to the plaintiffs' attorneys that it is going to be very difficult for plaintiffs to win against Merck" in federal court, where — unlike state courts — a unanimous jury verdict is needed, Rubin said.