The first federal court trial involving Vioxx was held in Houston, Texas, and it resulted in a mistrial. The jury, after hearing seven days of evidence, was deadlocked and reported to the judge that they couldn’t reach a verdict. Judge Fallon, who tried a case in seven days that most observers thought would take three weeks, declared a mistrial because of the deadlock on the fourth day of jury deliberations. The case would have resulted in a mistrial due to false and misleading testimony given during the trial by a key Merck witness even if the jury had reached a verdict. The case tried very well for our side and we believed that the jury would return a substantial verdict against Merck. However, that turned out not to be the case. In any event, the case will be retried in New Orleans on February 6th.

Merck’s conduct relating to the marketing of Vioxx was as bad as I have ever seen. As previously reported, the company was taken over by a “marketing group” in the mid-1990s. At that juncture the real doctors and scientists were put on the shelf and the “master salesman” took over. We have seen the tragic results of that development. Merck was losing its patents on six major drugs at that time and the company had to have a “blockbuster drug” that would generate sales by the year 2000 in the multi-billion dollar range annually. As we now know, Vioxx was that drug. During the development and marketing of Vioxx, Merck successfully lied to the FDA, the medical community, and the public and were able to keep the heart attack risks associated with Vioxx hidden from prescribing doctors for at least 3 ½ years. As a result, the company was able to rake in huge sums of money from Vioxx sales. Before being pulled from the market in 2004, annual sales had reached $2.6 billion. Hundreds of millions of dollars worth of stock were sold by the bosses at Merck before Vioxx left the market. That is another story, I suppose, and I have to wonder why no stockholders are concerned over that development.

Dr. Eric Topol, who is universally recognized as the leading cardiologist in the world, testified at our trial by videotaped deposition. He accused Merck of scientific misconduct in the development and marketing of Vioxx. Dr. Topol described Merck’s conduct relating to Vioxx as appalling. It is very significant that Dr. Topol says that short term use of Vioxx can result in heart attacks, which negates the myth Merck has put out to the media and the public that it takes 18 months of use for problems to occur. More will be said about Merck’s misconduct in the Mass Torts Section.

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