Saturday was a tense day in Courtroom 11B of the Federal Courthouse in Houston, where the first federal Vioxx case is being heard.
Mid-morning, the five men and four women on the jury sent word to U.S. District Judge Eldon Fallon that they were having trouble reaching a verdict. They've been working since Thursday afternoon to decide if Vioxx played a role in the fatal heart attack of 53-year-old Richard "Dickie" Irvin in 2001.
The judge called the jury into the courtroom and instructed them to keep deliberating for a "reasonable" amount of time and try to reach a verdict. After the jury left the courtroom, the judge told the lawyers that he wouldn't ask the jury to deliberate for an "undue" amount of time. He asked the lawyers to remain in court in case the jury returned.
Lawyers for both sides sat at the same spots they've occupied over the past two weeks, looking tired and sometimes pensive. Occasionally, the plaintiff's lawyers lounged in the jury box. Plaintiff Evelyn Irvin Plunkett and her family also waited.
This case was expected to be an easy win for Merck. Irvin had used the drug for less than a month. The study that led Merck to withdraw Vioxx from the market last year showed that risk of heart attack rises after 18 months. Merck says there's no evidence of short-term risk.
There were other factors that made this case weak for the plaintiff. Vioxx was prescribed to Irvin by his son-in-law, an emergency room doctor — not by a doctor who had been the subject of aggressive marketing by Merck salesman. And Irvin's wife has remarried, which may make her a less sympathetic plaintiff in the eyes of some jurors.
Twice on Saturday afternoon, the lawyers were summoned to the judge's chambers, but returned without word of a verdict.
Around 5 p.m., the jury quit work for the day. They'll resume deliberations at 8:30 a.m. Monday.
About a third of the roughly 7,000 Vioxx cases against Merck are under Judge Fallon. He’s hoping that the verdict in this and a handful of other cases will help plaintiffs and Merck to craft a broad settlement. Merck's stance is that it will take every case to court.
Judge Fallon has estimated that the total number of Vioxx cases against Merck will reach a 100,000.