A New Jersey judge backed a jury’s verdict that Merck & Co. (MRK) properly warned doctors of the safety risks associated with its Vioxx painkiller prior to a Vioxx user’s fatal heart attack, a court official said on Monday.

New Jersey Superior Court Judge Carol Higbee denied a motion by Mark Lanier, attorney for the estate of Brian Hermans, seeking to overturn the verdict that Merck had not failed to provide adequate warning to prescribing physicians at the time Hermans suffered his heart attack.

“Mark Lanier’s motion to continue on failure to warn was denied,” said the court official, who asked not to be identified. The official said Higbee ruled on the motion over the weekend.

Following Friday’s jury verdict, Lanier asked the court to allow the Hermans case to continue into the second phase of the trial in which jurors will determine whether Vioxx caused the heart attack of another plaintiff, Frederick Humeston, and to what compensatory damages he may be entitled.

In the trial that heard the two cases simultaneously, the jury found that Merck did fail to warn Humeston’s doctors of the risks of Vioxx.

The discrepancy between the two verdicts was tied to the timing of a Vioxx label change that included additional health risk warnings. Merck had altered the Vioxx label five months before Hermans suffered his fatal heart attack, but the change came after Humeston’s heart attack.

In his motion, Lanier argued that Hermans took the drug for more than a year before the label was changed in April 2002.

In addition to determining whether Vioxx was a primary cause of Humeston’s heart attack, the second phase of the trial, set to begin on Tuesday, will also determine damages for both plaintiffs under New Jersey’s consumer fraud laws.

The jury in both cases found that Merck made misrepresentations concerning the drug’s heart risks and that it intentionally suppressed or concealed material information from physicians in marketing the medicine. Those damages are likely to be more in the nature of reimbursement for cost of the drug and legal expenses.

Merck is facing more than 27,000 lawsuits from people who claim to have been harmed by the once $2.5 billion-a-year drug that was pulled from the market in September of 2004 after a study showed it doubled the risk of heart attack and stroke in patients taking it for at least 18 months.

Reuters 2007. All Rights Reserved.

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