NEWARK, N.J. – A state judge threw out a victory for Merck & Co. on Thursday and ordered a new trial for a postal worker who blamed his heart attack on taking the company’s Vioxx pain medicine for two months, the man’s lawyer said.

Superior Court Judge Carol Higbee ruled evidence uncovered since the November verdict showed that Merck withheld information showing heart attacks could come with use of Vioxx for less than 18 months, said the lawyer, Christopher Seeger.

“Merck consistently said throughout the trial that you had to be on Vioxx for 18 months to be at increased risk of a heart attack,” Seeger said. “And that was false. They had data that people were having heart attacks within weeks.”

It was the second legal blow of the day for Whitehouse Station-based Merck. The company also lost a federal trial in New Orleans over the withdrawn painkiller and was ordered by a jury to pay $51 million to a retired FBI agent who had a heart attack after taking the drug for more than two years.

In the New Jersey ruling, the judge overturned the verdict in a case brought by Seeger’s client, Frederick “Mike” Humeston, 60, of Boise, Idaho, who had a heart attack in September 2001. A jury in Atlantic City on Nov. 3 found Merck provided adequate warning of risks linked to Vioxx.

Seeger said judge planned to have the retrial on Humeston’s lawsuit in January, probably along with another case. More than 16,000 Vioxx-related suits have been filed against Merck in state and federal courts.

In state courts, Merck had won four cases in New Jersey and California, and lost two cases in Texas and one in New Jersey. Higbee’s ruling removes one of the New Jersey wins.

In federal court, the company now has one win and one loss.

Merck pulled Vioxx from the market in September 2004 when its own study showed the painkiller could double risk of heart attack or stroke if taken for 18 months or longer.

Ruling from the bench in Atlantic City, Higbee based her decision on new depositions and a letter published in the New England Journal of Medicine asserting that Merck withheld “very important heart attack data from the public, and also that they didn’t correctly state the data in the trial,” Seeger said.

Merck had no immediate comment on the ruling, but scheduled a teleconference to discuss Vioxx matters.

Merck shares fell $1.77 cents, or 4.3 percent, at $39.41 on the New York Stock Exchange on Thursday afternoon. It had traded from $25.50 to $41.78 over the past year.


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