A date of February 6 has been set for the retrial of Merck & Co versus Plunkett, in which the drugmaker’s Vioxx painkiller is accused of causing the death of Richard Irvin, who suffered a heart attach after taking the drug to treat back pain.
The judge in the first federal drug liability trial to reach the courts in the USA, Eldon Fallon, agreed the date after the courts first attempt at reaching a verdict ended with a hung jury a week ago. Fallon called for a mistrial after 18 hours of jury deliberations which reportedly ended with just one juror steadfastly maintaining the company’s liability in the case.
The retrial will take place in New Orleans. This was the original location for the first trial, but it was switched to Houston after Hurricane Katrina devastated the original venue.
In the trial, Mr Irvin’s widow, Evelyn Irvin Plunkett, maintained that Vioxx caused the heart attack which killed her husband in 2001, while Merck insisted underlying cardiovascular disease was to blame. But the plaintiffs moved for a mistrial after the New England Journal of Medicine accused Merck publicly of withholding data from one of Vioxx studies which was subsequently central to the deliberations over the drug’s side effects.
Judge Fallon did not act on the request, but the fact that it was made at all led to speculation that the plaintiffs felt chances of victory were slipping away. The case had always been tipped as an easy win for Merck, because Mr Irvin had only taken Vioxx for a short time.
So far, the results for the drugmaker are one win, one loss and one match called off. In the lawsuit it lost, Merck was ordered to pay damages of $253 million, subsequently capped at $26 million under state laws, which led some analysts to speculate that its liabilities over Vioxx could reach up to $50 billion.