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Alex Veiga
The Associated Press
01-19-2007

A hung jury forced a mistrial in Los Angeles on Thursday in the cases of two men who blamed their heart attacks on Vioxx, the once-popular painkiller made by pharmaceutical company Merck & Co. that is now the subject of thousands of lawsuits.

It wasn't clear when there might be a retrial of the lawsuits brought by Lawrence Appell, of Scottsdale, Ariz., and Rudolph Arrigale, of Westminster, Calif. They argued that Vioxx was a substantial factor in their heart problems and that Merck failed to give sufficient warning of potential safety hazards of the drug.

"It's disappointing not to get a conclusion now," Appell said.

Merck removed Vioxx from the market two years ago after its research showed the drug doubled the risk of heart attacks and strokes. But the company said the two men's heart problems were caused by pre-existing coronary heart disease, not Vioxx.

Merck attorney Stephen D. Raber also told jurors that the pharmaceutical giant had properly warned doctors of possible complications from using the painkiller.

Appell's and Arrigale's cases, which began Oct. 31, were tried together before a Superior Court jury that deadlocked when they reached the third question on a lengthy verdict form.

After closing arguments Dec. 19, the jury did answer "yes" to the first two questions, finding that Vioxx did have potential risks or side effects that were known or knowable and that they presented a substantial danger to users of Vioxx. The third question asked if the plaintiffs' physicians would have recognized the potential risks or side effects.

The first two answers were rendered moot when Judge Victoria G. Chaney declared a mistrial.

The jury had sent a note to the court saying it was having trouble with the third question, and lawyers were allowed to reargue that point. The jury then went back for more talks but, ultimately, said there was an impasse.

Thomas Yoo, a spokesman for Merck's legal team, said, "We're disappointed that the jury was not able to reach a verdict. If either of these plaintiffs wants to come back we'll be ready."

Appell's attorney, Brian Panish, and Arrigale's attorney, Thomas J. Brandi, both said they would seek another trial for their clients.

"We're obviously disappointed that the jury didn't complete all of the questions," Panish said. "We're not giving up."

None of the jurors agreed to take questions from reporters immediately after the court hearing, but they did meet with lawyers from both sides for several minutes.

Panish said some jurors believed the plaintiffs' physicians may have known about the risks of Vioxx when they prescribed the drug to their patients -- in particular, Appell's doctor, who had served as a clinical investigator for Merck, headquartered in Whitehouse Station, N.J.

As of Nov. 30, Merck faced 27,200 lawsuits over Vioxx and another 265 potential class action lawsuits.

Six lawsuits are set for trial between now and June, with the next scheduled to begin in New Jersey.

California's first Vioxx liability case also went to trial before Chaney. It ended in August, with jurors finding Merck was not liable for the heart problems of a California man.

A status conference was set for Monday to determine which California cases will be tried next. Chaney has already set April 10 as the start date of the next Vioxx trial.

Excluding the Appell and Arrigale lawsuits, 18 cases have been scheduled for trial over Vioxx to date. Juries have ruled for Merck nine times, although a state judge ultimately set aside one of the verdicts, the company said.

Four of the cases have been won by plaintiffs, but a federal judge overturned the damage award in one of them.

Another five cases have been dismissed, according to the company.