Federal Jury Clears Merck of Charges That COX-2 Drug Vioxx Caused User’s Death

A jury in New Orleans on Friday ruled in favor of Merck in the retrial of the first federal lawsuit related to the COX-2 inhibitor Vioxx, the Washington Post reports (Masters, Washington Post, 2/18). Merck, which withdrew Vioxx from the market in September 2004 over safety concerns, faces more than 9,000 lawsuits related to the medication in state and federal courts. In the current case, plaintiff Evelyn Irvin Plunkett alleges that Vioxx caused the death of her husband, Richard Irvin, who experienced a fatal heart attack in 2001 after he took the medication for one month (Kaiser Daily Health Policy Report, 12/13/05). In the original trial in Houston, jurors voted 8-1 in favor of Merck. In the retrial, plaintiff attorneys shifted from "long scientific explanations" to arguments that "Merck scientists and executives ignored early warning signs that Vioxx was unsafe as they heavily marketed it to an unsuspecting public," the Wall Street Journal reports (Won Tesoriero, Wall Street Journal, 2/18-19). Merck attorneys argued that the plaintiff attorneys did not prove a link between Vioxx and the heart attack Irvin experienced and that his age, gender and diet placed him at risk (McConnaughey, AP/Philadelphia Inquirer, 2/18). On Friday, the jury deliberated for less than four hours before they found Merck was not responsible for the death of Irvin, was not negligent, did not provide inadequate warnings about Vioxx and did not produce a defective product. Merck has won two of the three Vioxx lawsuits that have reached trial (Washington Post, 2/18).

Comments
Merck attorney Phil Beck said, "The evidence showed overwhelmingly that, for anything less than a very long use of Vioxx, there's not even the possibility of the drug causing increased heart attack risk" (Wall Street Journal, 2/18-19). He added, "The result indicates that the jury understood that Merck scientists who worked on the drug fulfilled all of their legal and ethical responsibilities" (Washington Post, 2/18). Plaintiff attorney Andy Birchfield said, "Obviously, the family is very upset," adding that the plaintiffs will consider an appeal (AP/Philadelphia Inquirer, 2/18). "We are determined to go forward on behalf of other victims of Vioxx," Birchfield said, adding, "Merck intendeds to fight each and every Vioxx lawsuit, and so do we" (Washington Post, 2/18).

Additional Reaction
Howard Erichson, a professor at Seton Hall University Law School, said that the latest verdict "plays in Merck's favor," provided that the judge who has overseen the federal Vioxx lawsuits decides to negotiate a settlement after the first few cases are tried, as he has said he would. According to the AP/Inquirer, the verdict also "lends momentum to Merck's contention that Vioxx posed no elevated risk to people who used it only for a few months." As many as 25% of the Vioxx lawsuits involve individuals who took the medication for less than three or four months, and the elimination of those cases could reduce the potential liability that Merck faces by billions of dollars, analysts said (AP/Philadelphia Inquirer, 2/18). However, legal experts said that Merck "faces a tough road ahead" with Vioxx lawsuits that involve individuals who used the medication over longer periods, according to the Post. Carl Tobias, a law professor at the University of Richmond, said, "It's all the difference in the world between short-term and long-term use cases. I don't think there's much surprise in this verdict" (Washington Post, 2/18). NPR's "All Things Considered" on Friday reported on the verdict (Prakash, "All Things Considered," NPR, 2/17). The complete segment is available online in RealPlayer.