updated 4/29/2005 4:43:20 PM ET 2005-04-29T20:43:20

An Alabama judge Friday refused to throw out a lawsuit filed against Merck & Co. by a woman who said its painkiller Vioxx caused her husband’s death. The case could come become the first Vioxx wrongful-death suit to go to trial.

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Circuit Judge John Rochester rejected Merck’s request for a dismissal but will hold a hearing Tuesday on requests by both sides to postpone the start of the trial.

In asking that the case be thrown out, Merck argued that the Vioxx samples Cheryl Rogers claims killed her husband, Brad, did not even leave the company until six months after he died.

The judge said that while there were discrepancies in Rogers’ testimony, he will leave it up to the jury to determine her credibility.

Rogers has told The Associated Press that she got confused and was not sure if the Vioxx samples she presented to the court belonged to her husband or her mother.

Her attorney, Jere Beasley, said the origin of the samples is irrelevant: “The medical records show he was taking Vioxx. That was just a straw man they threw up.”

Merck attorneys had no immediate comment on the ruling.

Merck, based in Whitehouse Station, N.J., pulled Vioxx off the market last September after a study showed it doubled the risk of heart attacks and strokes in patients taking the drug for more than 18 months. So far, more than 2,400 lawsuits have been filed involving Vioxx.

The Alabama trial is set for May 23. But both sides asked for a delay at the request of U.S. District Judge Eldon E. Fallon of New Orleans, who did not want the trial to interfere with federal litigation over Vioxx.

Earlier this year, Fallon was selected to handle all pretrial proceedings in hundreds of Vioxx cases filed in federal court around the country.

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