Merck & Co. won't have to defend against claims that the painkiller Vioxx caused a Wisconsin man's fatal heart attack during the second phase of a trial that begins today.

Judge Carol Higbee in Atlantic City on Monday rebuffed a request by Brian Hermans' family to let jurors consider whether Vioxx caused the accountant's death. The jury ruled on Friday that Hermans had been adequately warned of the drug's risks.

 
The jury also found that Merck, the third-largest U.S. drugmaker, didn't properly warn another man, Frederick Humeston. Humeston's attorney will present evidence in the trial's second phase that Vioxx caused his client's September 2001 heart attack. Merck faces 27,000 lawsuits over Vioxx, which was pulled from the market in 2004.

"We're pleased with the judge's decision," said Kent Jarrell, a Merck spokesman. "We are preparing for the second phase of the trial, where we believe the evidence will show Vioxx did not cause Mr. Humeston's heart attack."

Merck, based in Whitehouse Station, has won eight verdicts and lost four on the question of whether Vioxx caused patients' heart attacks. In the latest Atlantic City trial, jurors found that Merck warned Hermans of the risk by changing Vioxx's label in 2002.

The panel also concluded in both the Hermans and Humeston cases that Merck misrepresented the risks in marketing Vioxx, and that its handling of the drug violated New Jersey consumer laws, entitling the families to triple reimbursement for their expenses for Vioxx, plus payment of legal fees.