Hung Jury In Federal Vioxx Trial

Judge Declares Mistrial As Panel Fails To Reach Verdict

(CBS/AP)  A judge declared a mistrial Monday in the first federal lawsuit over the once-popular painkiller Vioxx after jurors were unable to reach a unanimous verdict.

Merck & Co. emerged from its third Vioxx trial Monday with a hung jury when the panel failed, in about 18 hours of deliberations over three days, to side with the drug maker or with the wife of a 53-year-old Florida man who died after taking Vioxx for about a month.

The mistrial means Merck, which already had a one and one record in Vioxx litigation, was unable to gain any momentum in its battle against thousands of other expected lawsuits related to the drug, which was withdrawn from the market last year after being linked to cardiovascular problems.

CBSNews.com legal analyst Andrew Cohen believes it is unlikely there will be another trial. "Merck isn't going to want to gamble that more bad information about Vioxx comes out before a new trial, and the plaintiff won't want to wait for a new trial and the appeal that likely would follow," he says.

Cohen also believes the mistrial leaves claimants with a big decision. "Claimants have to decide whether they want to cut their own deals with the company or continue to gamble that they will get more later, either as a result of their own trial or some global settlement," Cohen says.

The nine-member jury was about 20 minutes into its fourth day of deliberations when U.S. District Judge Eldon Fallon called the jurors in and reminded them they had agreed to reach a verdict in a "reasonable time."

"It has now been a reasonable time. We cannot get a verdict," Fallon said, declaring a mistrial. Federal litigation requires a unanimous verdict.

The judge said he would confer with attorneys next week to set a retrial date. Phil Beck, lead lawyer for Merck, said the retrial would likely be in February in New Orleans. The trial was moved from there to Houston because of hurricane damage.

The jury couldn't decide whether Merck was liable in Richard "Dicky" Irvin's 2001 death and whether the company failed to issue safety warnings that the drug could have serious cardiovascular side effects.

Beck said he had "no clue" what divided jurors or how the panel was split. He said Fallon instructed attorneys not to contact jurors, and "nobody knows what the division was."

Beck, who said Merck was in Vioxx litigation "for the long haul," would present the same defense in a retrial.

But Irvin's wife, Evelyn Irvin Plunkett, said she believed she had to convince a jury that Vioxx was the culprit.

"I knew in my heart my husband had died because of Vioxx and I had to push forward (with a lawsuit) because of that," she said outside the courtroom. "A lot of people have been injured, hurt, died because of that drug."