NEW YORK (Reuters)-A judge overseeing federal Vioxx litigation Tuesday rejected Merck & Co.’s bid to throw out two lawsuits against the drugmaker over its withdrawn painkiller.

Merck had sought a summary judgment in the two individual cases on federal preemption grounds, but U.S. District Court Judge Eldon Fallon denied the motion.

“Because the court finds that the plaintiffs’ claims are not expressly nor impliedly preempted by virtue of the federal regulation of prescription drugs, Merck’s motion is denied,” Judge Fallon said in his ruling.

Merck is facing more than 27,000 product liability lawsuits related to Vioxx, the once $2.5 billion a year arthritis medicine that it pulled from the market in 2004 after a study found it doubled the risk of heart attack and stroke in those who used it for at least 18 months.

One case involved in Tuesday’s ruling was brought by Lene Arnold, who claims she used Vioxx from July 2003 to October 2004 and suffered a heart attack in December of 2003. The other case was brought by the family of Joe Gomez, who suffered a fatal heart attack in January of 2003 after taking Vioxx for nearly 14 months.

“The court reaches the inevitable conclusion that the plaintiffs’ claims against Merck in this multi-district litigation are not preempted in any respect because they do not actually conflict with federal law,” wrote Judge Fallon, who is overseeing all federal Vioxx lawsuits.

Merck disagreed with the basis for Judge Fallon’s ruling.

“We believed that these two cases should have been dismissed because the FDA approved the product label that was included with the medicine, and that label reflected the cardiovascular risks known at the time these plaintiffs started taking Vioxx,” Merck attorney Ted Mayer said in a statement.

“In fact, the two cases specifically involved patients who began using Vioxx after the FDA approved label was revised to include the cardiovascular data from the VIGOR study,” he said, referring to a large clinical trial in which results released in 2000 showed signs of increased heart risk from Vioxx.

Mr. Mayer indicated that Judge Fallon’s ruling would likely be appealed by Merck.

“In fact, we have always believed that this would be an issue to be resolved by the appellate courts and ultimately the Supreme Court.” Mr. Mayer said.


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