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December 13, 2005

No Vioxx Verdict

Wall Street was apparently anticipating a defense verdict in Evelyn Irvin Plunkett, et al. v. Merck & Co.  The first federal Vioxx trail ended Monday in a hung jury and Merck's stock prices fell almost three percent on the news.  A Reuters news report claims that a lone member of the nine-person jury believed Merck was at fault but that the remaining eight agreed with the company that it was not responsible for this death. 

This was the third Vioxx case to go to trial.  In August 2005, a state court jury in south Texas returned a $253.5 million verdict for the plaintiffs, reduced to $26.1 million under Texas' punitive damages cap.  Merck is expected to appeal that verdict.  In November 2005, a state court jury in New Jersey returned a defense verdict.

Vioxx is the prescription pain medication withdrawn from the market by Merck in September 2004 when its own study indicated that the drug could double the risk of heart attack or stroke if taken for 18 months or longer. 

Causation appears to be the big issue in these cases, brought on design defect, failure to warn and several other theories of liability.  The plaintiff's lawyers claim that even short-term use of the drug is dangerous and that Vioxx caused the death of Dicky Irvin who took the drug for less than a month before suffering a fatal heart attack.  Merck's own study shows that longer-term use of Vioxx creates serious cardiovascular side effects so the critical question is whether plaintiffs can overcome the defense contention that the drug does not result in heart problems in people who have taken it for fewer than 18 months.

U.S. District Judge Eldon Fallon, the federal MDL judge Vioxx litigation, says the case will be retried.  Merck estimates that it faces about 7000 VIoxx lawsuits, about 2900 of them in the federal MDL, so the first few federal trials will presumably set a pattern for that subset of cases.

JDP

December 13, 2005 | Permalink

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