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Judge Declares Mistrial in Merck Vioxx Trial Because of Hung Jury

By Alex Berenson

In an apparent setback for Merck, a federal judge in Houston declared a mistrial Monday in Plunkett v. Merck, the third Vioxx lawsuit to reach trial, after jurors said they were hopelessly deadlocked.

The panel of nine jurors had debated for about 18 hours on Thursday, Friday and Saturday. The lawsuit was brought by Evelyn Irvin Plunkett, the widow of Richard Irvin Jr., who died at age 53 in May 2001 after taking the Merck painkiller Vioxx for less than a month.

Judge Eldon E. Fallon of U.S. District Court declared a mistrial at about 9 a.m. local time and sent jurors home Monday morning after they reported they could not reach a verdict. On Saturday, Fallon had read jurors a so-called Allen charge, a set of instructions encouraging them to try harder to reach consensus.

The lawsuit was tried in Houston instead of New Orleans, where Fallon is usually based, because of damage from Hurricane Katrina. The case will probably be tried again early next year, and Fallon has said that he hopes it can be heard in New Orleans.

Lawyers for both sides said they were disappointed by the outcome but looked forward to retrying the case. And a lawyer for Merck said the company was pleased by a report that a lone holdout had kept the jury from finding in the company’s favor.

Still, lawyers not involved in the suit said the mistrial was a bad sign for Merck, which had been expected to win the trial relatively easily following its victory last month in a similar case in a New Jersey state court.

“Most people watching this litigation closely thought that Merck ought to win it,” said Carl W. Tobias, a law professor at the University of Richmond. “Despite the characterizations by Merck so far, I think this was really a loss for them.”

Shares of Merck fell 72 cents on Monday, to $28.41, a drop of 2.5 percent.

Unlike state courts, federal courts require unanimous verdicts in civil cases. Lawyers involved in the case said Monday that they did not know whether jurors in the Plunkett case had ever been close to a verdict, or how the jury had split. Fallon’s office did not return calls asking if the court planned to make the jurors’ names public.

In an article on its Web site Monday evening, The Wall Street Journal reported that jurors it did not identify had said the jury had deadlocked 8-1, with the majority favoring Merck.

In state and federal courts, more than 6,000 people have sued Merck, claiming they or their family members were injured or killed after taking Vioxx, a once-popular painkiller that Merck stopped selling last year after the drug was linked to heart attacks and strokes. As many as 100,000 lawsuits are expected, and some Wall Street analysts say Merck could eventually pay as much as $50 billion to settle all the cases.

“This is a huge loss for Merck,” said W. Mark Lanier, a plaintiffs’ lawyer, said Monday. Lanier defeated Merck in August in the first Vioxx lawsuit to reach a jury, in state court in Angleton, Texas. “Merck will never find an easier case to win.”