Vioxx lawsuit ends in mistrial

(Correction: Because of incorrect information provided by a staff member of a plaintiff's attorney, a story in yesterday's Business section misstated how jurors were leaning in the first federal Vioxx case when a misstrial was declared. At least seven of nine jurors favored Merck & Co.)

WASHINGTON -- The first federal Vioxx case ended in a mistrial yesterday with six of nine jurors favoring the widow whose former husband suffered a fatal heart attack after taking Vioxx for less than one month.

Twenty minutes after the deadlocked jury began its fourth day of deliberations, US District Court Judge Eldon Fallon called them back to the Houston courtroom to declare a mistrial. The panel was to decide whether Merck & Co. was negligent in marketing Vioxx and whether the painkiller used by millions of people before its market withdrawal was defective. A unanimous verdict was mandatory.

The hung jury clearly is a setback for Merck. Legal analysts said the plaintiff's case was weak and the federal court was a more sympathetic venue for the drug maker. Merck faces many more trials, and its challenge intensified when the New England Journal of Medicine last week asked for a correction to a Vioxx study central to Merck's defense that includes one of its key witnesses, Dr. Alise Reicin, as an author.

On Thursday, as deliberations began in Houston, the Journal posted an on-line ''expression of concern" alleging key cardiovascular data were deleted from the pivotal manuscript they published about Vioxx and that Journal editors were not alerted to three heart attacks that made the drug look even more dangerous. In an interview, the Journal's editor said a Merck computer was used to delete the data.

The mistrial was actually a ''huge" loss for Merck, said Robert Gordon, a lawyer at Weitz & Luxenberg in Manhattan, who will represent a Vioxx plaintiff in a case scheduled for trial in February.

''This is one of the weakest possible cases for the plaintiffs because of how short a period of time the plaintiff took Vioxx. And it had a liability picture that did not include the fact that Dr. Reicin and Merck misled the New England Journal of Medicine. So, any future case has got to be stronger."

Some investors agreed, sending Merck shares lower. The stock closed yesterday at $28.41, down 2.5 percent.

Gordon and other plaintiffs' attorneys say they will attack the credibility of Merck and its clinical trials leader, Reicin, as nearly 7,000 lawsuits are heard in federal and state courts.

''As a general proposition, anything that smacks of manipulating studies or data is a potential bombshell," said Kendall Coffey, a legal analyst in Miami and a former US attorney. ''It's the rare case where a cover-up is of no concern to a jury. The implications range from only somewhat harmful to potentially devastating."

Yesterday, a Merck executive and a lead attorney criticized the Journal for the timing and tone of its editorial. Merck defended the credibility of Reicin, a top Merck scientist who was among the Journal article's 13 authors.

The additional cardiovascular details covered in the Journal's online posting would not have changed the study's conclusions, said Kenneth C. Frazier, Merck's senior vice president and general counsel.

The three additional heart attacks came in after a prespecified cut-off date for the article. But the data, discussed in a July 2000 Merck memo, were provided to the Food and Drug Administration at the company's next quarterly update. While a table containing tallies of specific cardiovascular side effects attributable to Vioxx was deleted as Merck authors worked on the manuscript, the heart attack information it contained was reflected in the November 2000 article's text, said Philip Beck, Merck's lead attorney in Houston.

A video deposition conducted by plaintiffs' attorneys, however, offers a differing opinion, said Donald C. Arbitblit, a San Francisco attorney who conducted last month's deposition of Dr. Gregory Curfman, the Journal's executive editor. ''I disagree" with Merck's characterization of the importance of the deleted information, Arbitblit said. ''I think Dr. Curfman disagrees with that."

A Journal spokeswoman yesterday declined to comment further.

Merck also defended the integrity of Reicin, one of the authors on the disputed paper and a party to the July 2000 memo with the more complete side effect details for Vioxx.

''She's a very honest and forthright witness and an excellent witness for Merck, so I feel 100 percent comfortable with her taking the stand again," Beck said.

Still, the fact that the Journal reacted in such a public way to the new information will help plaintiffs' attorneys.

Attorneys handling two long-term Vioxx use cases consolidated into a single matter that will be heard in a New Jersey state court in February renewed their pledge to aggressively cross-examine Reicin about her handling of the heart risk data.

Gordon will represent John McDarby, a retired insurance salesman and former smoker who was 74 at the time he suffered a heart attack. McDarby had taken Vioxx four years.

Mark Lanier, who won a $253 million verdict against Merck in August in a Texas state court, will represent the second New Jersey plaintiff, Thomas Cona. The 59-year-old businessman took Vioxx more than two years.

''Alise Reicin has told jurors repeatedly that Merck made all of its data known publishing this New England Journal of Medicine article. And that is simply not true," Lanier told the Globe last week.

Diedtra Henderson can be reached at dhenderson@globe.com.