updated 12/9/2005 6:12:53 PM ET 2005-12-09T23:12:53

Jurors deliberated about eight hours Friday without reaching a verdict on whether Merck & Co.’s Vioxx contributed to the 2001 death of a Florida man who had been taking the once-popular painkiller for about a month.

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The nine-member federal jury, which has deliberated nearly 10 hours over two days, was to return Saturday. The panel is considering whether the drug was defective, if the company failed to warn about its risks and was negligent in designing and marketing Vioxx.

If jurors answer yes, they then must decide whether any of those factors contributed to the fatal heart attack of Richard “Dicky” Irvin, 53, of St. Augustine, Fla., whose widow is suing Merck. A verdict must be unanimous.

Lawyers on both sides declined to comment Friday on whether the plaintiff plans to ask for a mistrial based on revelations Thursday from the New England Journal of Medicine, which said authors of a report about a 2000 Merck-funded clinical study failed to disclose three patients’ heart attacks.

The study in question, called VIGOR, has figured heavily in the first three Vioxx trials to reach juries — one in a Texas state court that Merck lost, another in its home state of New Jersey that the company won, and in the first federal case in Houston in which deliberations began Thursday.

In the federal trial, both Merck and the plaintiff cited the study, which showed that Vioxx users suffered five times as many heart attacks as users of the older painkiller naproxen. But Merck said the results show that naproxen has a protective effect on the heart, much like aspirin — not that Vioxx leads to heart attacks.

The Journal revealed Thursday that when Merck submitted an article about VIGOR, the authors — including Dr. Alise Reicin, head of clinical trials — deleted mention of the three heart attacks and other relevant data. That article said Vioxx caused four times as many heart attacks as naproxen.

The missing heart attacks were included in VIGOR data later submitted to the U.S. Food and Drug Administration, which reported the higher number of heart attacks.

In a statement issued Thursday afternoon, Whitehouse Station, N.J.-based Merck said it “promptly and appropriately” disclosed the study results.

Depending on what jurors in the federal trial conclude, the losing side can ask for a mistrial after a verdict is announced. Both legal teams met behind closed doors Friday, but neither would comment on the discussions.

Merck pulled Vioxx from the market last year when another long-term study showed the drug could double risk of heart attack or stroke if taken for 18 months or longer. Irvin died of a heart attack after taking Vioxx for about a month to ease back pain.

Merck claimed Vioxx couldn’t be responsible for Irvin’s death because he took Vioxx for such a short time. The plaintiff’s lawyers said several studies among the 58 clinical trials involving 10,000 patients conducted before Vioxx was launched in 1999 showed dangers after only a few weeks’ use.

If the jury finds Merck liable, the punitive damages will be determined in a later hearing in which attorneys can make arguments or call witnesses. Then the panel will deliberate and consider awarding punitive damages.

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