Merck & Co. Finally Wins Its First Federal Court Vioxx Trial

Defense Verdict From Jury In Irvin / Plunkett v. Merck Retrial (Round Two)

On February 17, 2006, after deliberating for just over three hours, a federal jury in New Orleans gave Merck & Co. a defense verdict in the first federal court Vioxx trial, Irvin / Plunkett v. Merck. The first trial of this Vioxx lawsuit, wwhich took place in Houston due to the aftermath of Hurricane Katrina, initially ended in a mistrial due to a "hung jury" in December 2005.

At issue was the death of a Florida man, Richard "Dicky" Irvin, who died of a heart attack in 2001 after taking Vioxx for less than a month. The wrongful death case was filed by his wife at the time, Evelyn Irvin Plunkett, and some of their children.

Significantly, a pretrial legal ruling by Judge Eldon Fallon -- the federal court judge presiding over the Vioxx Multi-district Litigation, or MDL, in the federal court system -- prevented an expert pathologist who had been designated by plaintiff's counsel from testifying that Vioxx caused the clot that led to Mr. Irvin's heart attack. This exclusion of the pathology expert by Judge Fallon meant that plaintiff's counsel was not able to present at trial any expert testimony which linked Mr. Irvin's Vioxx use directly to his heart attack and death.

Taking advantage of the situation created by Judge Fallon's ruling which excluded the plaintiff's expert, defense attorney defense attorney Philip Beck emphasized the lack of any expert testimony for the plaintiff on the cause of his death and pointed out that the plaintiff had several cardiovascular risk factors, including his age, weight, and high blood pressure, which could have caused his fatal heart attack -- as opposed to the short-term Vioxx use.

The Irvin / Plunkett defense verdict does not serve to establish any legal precedent as regards the thousands of Vioxx lawsuits waiting to go to trial across the nation. The verdict means only that these jurors agreed that the plaintiff did not prove that Mr. Irvin's heart attack was caused by his short-term Vioxx use.

The first two Vioxx heart attack cases involving plaintiffs who took Vioxx for longer than 18 months will be the subject of a consolidated trial in New Jersey, which is scheduled to start on February 27, 2006. It is generally thought that heart attack cases involving long-term Vioxx use may be more difficult for Merck to defend, given that the drug company took Vioxx off the market in September 2004 after the VIGOR study showed that 18 months or more of Vioxx use was linked with an increased risk of heart attack.

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