NEW ORLEANS – Arguments on two questions in federal Vioxx cases may wait on testimony from two governors who have worked in or for the drug industry about consultations with the US food and Drug Administration about drug label rules made last year. 

US District Judge Eldon E- Fallon said today he would schedule hearings later in manufacturer Merck and Company's requests for a new trial in a case it lost and for permission to immediately appeal his ruling on the FDA label question.

Attorneys for people and companies which have sued Merck have subpoenaed the governors of Indiana and Mississippi for videotaped testimony about their responses when asked by the FDA whether the rules would violate states' rights.

Plaintiffs' attorney Russ Herman of New Orleans says that will have a direct bearing on Merck's request for permission to immediately appeal a ruling that the FDA's approval of a label does not protect drug makers from lawsuits claiming a label's warnings were inadequate.

The FDA made that claim in the preamble to rules it made final in January 2006. Fallon ruled this month that the arguments are "entirely unpersuasive" and two trials may proceed.



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