updated 8/29/2005 7:12:23 PM ET 2005-08-29T23:12:23

Beleaguered drug maker Merck & Co.’s request to postpone the next trial over its withdrawn painkiller Vioxx was turned down Monday by the New Jersey judge presiding over the case.

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Superior Court Judge Carol E. Higbee, who is overseeing nearly 2,500 Vioxx product liability cases that have been filed in New Jersey, also rejected several other Merck motions related to the upcoming trial.

Whitehouse Station, N.J.-based Merck, in a motion filed last week, had urged Higbee to postpone the trial’s start for 45 days, citing a “media blitz” after the first Vioxx trial. That ended Aug. 19 with an Angleton, Texas, jury awarding $253.4 million to the widow of Bob Ernst. He died in 2001 after taking Vioxx for eight months. The award is expected to be reduced to about $26 million due to Texas caps on punitive damages.

Set to start Sept. 12 in Atlantic City, the second trial over the drug involves a 60-year-old postal worker and former Marine from Boise, Idaho. Frederick “Mike” Humeston suffered a heart attack, but survived, four years ago shortly after he began taking Vioxx for pain from old war wounds.

Merck pulled its blockbuster arthritis treatment, which had been bringing in $2.5 billion in annual revenues, from the market when its own study showed Vioxx doubled the risk of heart attack or stroke when taken for at least 18 months.

However, the first two cases to come to trial in state courts both involve plaintiffs, Ernst and Humeston, who had taken the drug for a much shorter time.

Trial to start Sept. 12
Higbee ruled Monday morning that the trial will start with jury selection on Sept. 12, as scheduled.

“I’m just absolutely thrilled,” said Humeston’s attorney, Chris Seeger of Seeger Weiss in Manhattan. “I just can’t wait to get in a courtroom with this company.”

Seeger said the judge also ruled against Merck on motions to exclude some Merck marketing and promotional materials about Vioxx, evidence about Merck’s efforts to sway or discredit doctors raising concerns about the safety of Vioxx and information about Humeston’s record of valor in the Vietnam War.

Merck lawyers had argued that evidence was not directly related to the issues in the Humeston case.

“All of these rulings, they’re preliminary,” and can be raised again when they come up during the trial, said Jim Fitzpatrick, outside counsel and a Merck spokesman. “A lot of them relate to what can be said at opening (arguments).”

As of Aug. 15, Merck faced nearly 5,000 lawsuits alleging patients were harmed by Vioxx — nearly 600 cases more than what the company reported five weeks earlier. The total includes about 150 potential class-action suits, which could include many plaintiffs.

Shortly after providing that update last week, Merck officials said Friday that lawyers will consider settling some Vioxx cases, specifically those where plaintiffs took the drug for at least 18 months and had low risks of cardiac problems.

Plaintiff lawyer Mark Lanier, who won the Ernst case, said Friday that Merck likely will face at least 50,000 U.S. product liability suits over Vioxx, plus thousands more from patients overseas. Analysts estimate Merck’s liability over Vioxx could run from several billion dollars to as high as $50 billion, but the company has yet to set aside any reserves to cover jury awards or settlements.

Merck shares rose 46 cents, or 1.7 percent, to close at $28.12 on the New York Stock Exchange. It has traded as low as $25.60 over the past 52 weeks but is well below its peak of $47 per share, shortly before Merck pulled Vioxx from the market.

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