An east Alabama judge refused Friday to throw out a wrongful-death lawsuit related to Merck & Co.’s painkiller Vioxx, but he still has not decided whether to postpone the start of the trial. 

Clay County Circuit Judge John Rochester rejected a motion by Merck to dismiss the case based on what the drug company said was a lack of credible evidence to prove Brad Rogers of Talladega took Vioxx before his death in 2001.

The widow, Cheryl Rogers, filed suit two years ago alleging the drug contributed to her husband’s fatal heart attack. Rogers’ attorney, Jere Beasley of Montgomery, insists he has credible evidence that Brad Rogers was taking Vioxx, which led to his death.

In his ruling Friday, Rochester said Merck had uncovered major flaws in the plaintiff’s testimony about where Brad Rogers obtained his Vioxx samples and how much he took before his death. Yet those faults did not warrant the case’s dismissal since “every case contains conflict and contradictions in testimony in varying degrees,” and it’s up to a jury to sort the facts, Rochester’s order said.

Also, the judge set a hearing for Tuesday on requests by both sides to postpone the May 23 start of the trial until early 2006.

Attorneys for both sides said Thursday they had agreed to a federal judge’s request to delay trial of the case for seven months. They said they expect Rochester to rule in favor of the continuance.

After his motion to dismiss was denied Friday, Merck attorney Mike Brock said, “We will present the evidence that has been uncovered to date to a jury.”

Plaintiff’s attorney Beasley applauded the order and chided the drug company. “Merck’s motion to dismiss lacked foundation, and they had to know it. It was a ploy to discredit our client, a grieving widow and single mother,” Beasley said.

Merck pulled Vioxx off the market last fall after evidence linked it to cardiovascular problems in certain patients. So far, more than 2,400 lawsuits have been filed involving Vioxx. The Rogers case was the nation’s first related to the drug slated to go to trial.

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