U.S. Food and Drug Administration approval of a drug label doesn't clear the manufacturer of claims that its warnings were inadequate, a judge ruled in a decision potentially affecting thousands of federal suits against Merck & Co. for the painkiller Vioxx.

Associated Press

"The FDA's current view on the question of immunity for prescription drug manufacturers is entirely unpersuasive," U.S. District Judge Eldon Fallon wrote in the opinion handed down Tuesday.

Had Fallon sided with Merck, the drug company also could have challenged claims brought by thousands of other plaintiffs who say it is to blame for heart attacks and other cardiovascular problems.

That "would have been like wiping the whole board clean and wiping out all possible victories" against Merck, said David Logan, dean of the Roger Williams University School of Law in Bristol, R.I.

But the judge rejected Merck's attempt to throw out lawsuits brought by two people who began taking Vioxx after April 2002, when the FDA approved a label warning that the drug might increase the chance of such problems.

Russ Herman, spokesman for the plaintiffs' lawyers in the federal cases, did not immediately return a call for comment.

Merck is considering an appeal, lawyer Ted Mayer said in a statement e-mailed to The Associated Press. "We have always believed that this would be an issue to be resolved by the appellate courts and ultimately the Supreme Court," Mayer wrote.

Like thousands of others, Lene Arnold, who had a heart attack in December 2003, and the family of Joe G. Gomez, who died of one in January 2003, say the warning was inadequate. The Arnold case was filed in federal court in New Orleans while the Gomez case originated in Texas.

"Failure to warn" is a state claim, but where there is no parallel federal law, federal courts apply state laws in the jurisdiction where a suit is filed.

In a preamble to rules set in 2006, FDA contends its requirements set limits for prescription drug labels, pre-empting state claims that a company failed to warn users of a danger.

"FDA is the expert federal public health agency charged by Congress with ensuring that drugs are safe and effective, and that their labeling adequately informs users of the risks and benefits of the product and is truthful and not misleading," FDA wrote.

And, the agency said, rulings relying on state laws can frustrate its work.

However, Fallon wrote, "Because there are no federal remedies for individuals harmed by prescription drugs, a finding of implied pre-emption in these cases would abolish state-law remedies and would, in effect, render legally impotent those who sustain injuries from defective prescription drugs."

The FDA cannot comment on specific cases, spokeswoman Susan M. Cruzan said. She did cite Randall Lutter's recent testimony against draft drug and medical device bill provisions stating that they will not affect damage suits under state law.

"This provision in the draft bill could be interpreted to permit state law to undermine FDA's conclusions," said Lutter, the FDA's acting deputy commissioner for policy.

FDA's claim is part of a growing trend among federal agencies, said Catherine Sharkey, a New York University law professor who recently published an article about it in the DePaul Law Review.

The Consumer Product Safety Commission and the National Highway Traffic Safety Administration have made similar statements, said Sharkey, who just moved to NYU from Columbia Law School.

She said others have called it tort reform in disguise, in a process that doesn't include congressional debate.

The U.S. Supreme Court recently agreed to hear a related -- but not identical -- case involving medical devices, Sharkey said. Unlike the prescription drug rule, the law covering medical devices does cancel claims based on state law, she said.

Sharkey said she has not followed court rulings involving the other agencies as closely as she has the FDA decisions. About two dozen courts had ruled on the FDA assertion as of June 2007, and have split fairly evenly, she said.

Two of the most recent are Fallon's ruling Tuesday and one last week by a New Jersey state judge, who made a similar decision in a case over Wyeth's hormone replacement drug Prempro.

The judge also released a special master's report about which documents Merck could legitimately keep from plaintiffs' attorneys as legal advice.

Paul Rice was called in after Fallon had gone page by page through 30,000 documents -- about 500,000 pages -- which plaintiffs' attorneys and Merck disagreed about. Fallon ruled that fewer than 500 of those documents met the standard for legal privilege.

Merck chose 2,000 as representative, and the plaintiffs were allowed to list hundreds of others which they felt were particularly important. Rice listed them, item by item, noting which Merck could keep secret and which it had to turn over, in whole or in part.

Merck may hold back about 70 percent of the documents which it identified as typical -- but only about 40 percent of the 500 which Rice checked at the request of plaintiffs' attorneys. Merck must turn over at least part of each of the other documents.

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Associated Press writer Linda Johnson in Trenton, N.J., contributed to this report.

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On the Net:

Fallon's order: h ttp://vioxx.laed.uscourts.gov/Orders/Vioxx.Preemption.o&r.pdf

FDA rule: http://www.fda.gov/cber/rules/labelcf.htm

Article abstract: http://papers.ssrn.com/sol3/papers.cfm?abstract--id=900020

(Copyright 2007 by The Associated Press. All Rights Reserved.)