December 13, 2005

(Updated from original 12/12 10:23 am post.)

Eighteen hours of deliberation did not produce a verdict and Judge Fallon declared a mistrial. Fallon instructed the jurors not to talk to attorneys or the media, but two jurors told the Associated Press and Wall Street Journal that the initial vote was 7-2 in favor of Merck, and was 8-1 when a mistrial was declared. One juror faulted Merck for failing to warn, but didn't buy Plunkett's claims of Vioxx causation; one cannot read too much into that evaluation, as Merck apparently focused on the causation issues as the weakest part of the plaintiff's case under the time limits Judge Fallon put both parties. Future federal trials under Judge Fallon will be tried in New Orleans, where the judge will shortly return. (In a typical multi-district litigation, cases are consolidated in the centralized transferee court solely for the purpose of pre-trial proceedings and returned to the original transferring federal court for trial, but the parties can agree to waive venue issues and re-file the case in the transferee court, as has happened with Plunkett and will happen with several other cases in 2006.)

Freed from a gag order by the end of the case, Merck attorneys criticized the New England Journal of Medicine editorial (Dec. 10, Dec. 8) as giving people a false impression.