Mistrial In First Federal Vioxx Case

After a mistrial in the first federal Vioxx case today, a judge here in Houston will meet with lawyers from both sides next week to set a date for a retrial, likely to be held in New Orleans.

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The mistrial came after three days of deliberations and no sign of a unanimous decision one way or the other, which is required in federal cases. Jurors were unable to agree on whether Vioxx played a role in the death of a Florida man who had been taking the pain medication for about a month before a fatal heart attack in 2001. Philip Beck is an attorney for drug maker Merck and says the mistrial won't change the company's strategy in a retrial or future Vioxx trials. "Merck's approach is that, number one, we acted responsibly with this medicine and number two, each case has to be looked at individually to see whether there is even a possibility that Vioxx could have contributed to a person's injury," he says. "Here we don't think there was, and the fact that we were unable to get a unanimous verdict on that is not going to change our strategy either in this case or in the other cases."

The first federal Vioxx trial was to have been held in New Orleans, but was moved here because of hurricane damage. The retrial will most likely be held back in New Orleans sometime in February. Both sides say they have no idea why the jury couldn't agree, but Jere Beasley, the attorney for plaintiff Evelyn Irvin Plunkett, says round two will have new evidence. "It was a very highly intelligent jury, highly educated and sophisticated and that's really, we thought was a plus for us because they could understand the science. We won the science battle without question and we look forward to trying it again. We'll have more bullets in our gun next time," he says.

Beasley is referring to evidence that Merck allegedly deleted damaging data from a study the company provided to the New England Journal of Medicine in 2000. Merck still faces more than 7000 Vioxx lawsuits, many to be heard by Federal Judge Eldon Fallon. South Texas College of Law associate professor Charles Rhodes says this federal trial in particular will set guidelines for future trials. "This federal judge has 3000 cases pending before him and so that makes each of the federal cases that are decided early-on more significant because it sets parameters on how the federal cases are going to proceed," he says.

Rhodes says he sees the mistrial as more of a victory for plaintiff in the case. He believes Merck thought it had a better chance of winning trials where victims used Vioxx for only a short period of time, but with the Houston mistrial, says that may not be the case.

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