Federal Court MDL Vioxx Case Retrial Set For February 2006 in New Orleans

Judge Fallon Schedules Irvin / Plunkett v. Merck, Round Two

Round Two of the first federal Vioxx trial, which was scheduled for February 6, 2006, in New Orleans, ended with a verdict for Merck. The trial was heard by U.S. District Judge Eldon Fallon, who is presiding over the Vioxx federal court Multidistrict Litigation, or MDL.

The initial trial of the Irvin / Plunkett v. Merck case ended with a "hung jury" in early December 2005, creating the need for a retrial of this Vioxx case. That first trial, which began on November 29, went to the jury on December 8 after closing arguments. Judge Fallon declared a mistrial of the Irvin / Plunkett case at the start of the fourth day of jury deliberations because the jurors had not reached a unanimous verdict, as is required in federal court Vioxx cases.

According to several news reports, two jurors from this initial trial of the Irvin / Plunkett Vioxx case told The Associated Press that eight of the nine-member jury panel voted to absolve Merck of liability, but one juror refused to go along, leaving the jury split 8-1 in favor of the company at the time when Judge Fallon decided to end the case, apparently because the jury was deadlocked.

In a December 16, 2005 article in The Wall Street Journal (WSJ) about the new trial date for the Irvin / Plunkett case, a defense attorney for Merck, Phil Beck, said that it was the jury deadlock that prompted prompted Judge Fallon to declare a mistrial. "He declared a mistrial not on the grounds of the New England Journal of Medicine but on grounds that the jury had told him they were deadlocked," Beck said.

As background, during the jury's second day of deliberations, attorneys for the plaintiff had requested Judge Fallon to declare a mistrial based "in large measure", according to the WSJ article, due to news the day before that the New England Journal of Medicine had accused Merck of withholding some critical information about the 2000 VIGOR Vioxx study from that medical journal so that Vioxx would appear safer. Immediately after the mistrial was announced, there was some speculation that Judge Fallon's ruling had to do with this issue.

Merck withdrew Vioxx from the market in September 2004 when a study showed that Vioxx could double one's risk of having a heart attack or stroke if the painkiller was taken for 18 months or longer.

The Irvin / Plunkett trial concerned the 2001 death of Richard "Dicky" Irvin, a Florida man who took Vioxx for about a month. Merck's attorneys blamed Mr. Irvin's pre-existing medical conditions for his death, and maintained that Vioxx could not be responsible for his fatal heart attack because he took Vioxx for such a short period of time.

As for other upcoming trial dates, New Jersey Superior Court Judge Carol Higbee has consolidated the next two Vioxx cases, Cona and McDarby, into one trial, which is scheduled to start on February 27, 2006 in Atlantic County, New Jersey.

Read more on our Vioxx Information Page >>