Houston Vioxx Case Ends in Mistrial

A judge declares a mistrial in the first federal lawsuit over the painkiller Vioxx. Merck emerged from its third Vioxx trial Monday with a hung jury when the panel failed to side with the drug maker or the widow of a 53-year-old Florida man who died after taking Vioxx for about a month.

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STEVE INSKEEP, host:

A federal judge in Houston has declared a mistrial in a case related to the painkiller Vioxx. There are enough of these cases that it's worth keeping a scorecard, so here goes. Two earlier cases in state courts have resulted in a win and a loss for Merck, which is the maker for Vioxx. In the first case, Merck was found liable for the death of a Texas man. In the second case, the drugmaker was exonerated. Now for the first time, there's been a product liability involving Vioxx in federal court. NPR's Snigdha Prakash has been following the story from Houston.

And, Snigdha, why did the judge declare a mistrial?

SNIGDHA PRAKASH reporting:

Well, under federal rules, Steve, the jury's verdict had to be unanimous. They came back on Saturday to tell them they were having trouble reaching a decision, and he gave them what's called a modified Allen charge where essentially he said, `Please try a little bit harder. Deliberate a little bit longer. Don't give up your truly deeply held convictions, but try to reach a verdict. That's your duty to do so.'

Well, this morning a little before 8:30, his clerk was in the courtroom asking for lawyers from both sides to come to the judge's chamber where apparently he broke the news that there would be a mistrial. The jury of four women and five men simply couldn't reach an agreement.

INSKEEP: Is this another case where someone who used Vioxx allegedly was harmed by the drug?

PRAKASH: This is a case where a 53-year-old man from St. Augustine, Florida, Richard "Dickey" Irvin, took Vioxx for back pain for a little less than a month. The drug was prescribed by his son-in-law without any kind of medical examine. Apparently, it helped with his back pain, but the plaintiff alleges that less than a month later, Mr. Irvin also suffered a heart attack and that Vioxx caused the heart attack.

INSKEEP: So what happens to his case now that there's been a mistrial? Does it go back to court again?

PRAKASH: It does. The judge indicated in court today that later this week or next week, the lawyers and he will get together and talk about when the case can be tried again. They'll have to schedule a new date. They'll have to schedule a new location. This judge actually sits in New Orleans. The case was tried in Houston because there aren't enough people in New Orleans to make up a jury. So we don't know whether it will be tried here in Houston again or in New Orleans, but he seems pretty determined to have it tried again and quickly.

INSKEEP: Will the mistrial affect the thousands of other Vioxx cases?

PRAKASH: Well, no. I mean, the mistrial has to do with this case and so in a narrow sense, it doesn't. I think that in the coming hours and days, there'll be a lot of talk about whether this hype in this trial one or the other side comes out the winner here. One could argue that perhaps this was, in some sense, a win for the plaintiffs. It was supposed to be an easy win for Merck. You know, t he man had only used Vioxx for not even a month. Houston is a very conservative town, and there was a sense that this is a case they shouldn't have been able to win. The next time they go to trial, there's some new evidence from The New England Journal of Medicine that suggests that Merck was not completely forthcoming about the results--the number of heart attacks in a key clinical trial involving Vioxx--so there will be more evidence and perhaps more damaging evidence that plaintiffs can bring to bear the next time this case is tried.

INSKEEP: Snigdha, thanks very much.

PRAKASH: Thank you, Steve.

INSKEEP: That's NPR's Snigdha Prakash, reporting from the federal courthouse in Houston where a mistrial has been declared in the latest Vioxx case.

This is NPR News.

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