WASHINGTON (Legal Newsline) - A class action lawsuit filed by investors in Merck & Co. may proceed, the U.S. Supreme Court ruled Tuesday.

The justices affirmed a federal appeals court decision that said the plaintiffs did not allow the statute of limitations to expire before filing their lawsuit, which alleges the company made material misstatements and omissions regarding the prescription pain medication Vioxx.

A federal court in New Jersey had dismissed the suit in 2007.

"Merck is disappointed in today's decision, but believes that the allegations in the complaint are unfounded and will continue to defend itself vigorously," said Bruce Kuhlik, Merck Executive Vice President and General Counsel.

"The company has already made a motion to dismiss the operative complaint on numerous other grounds, and will renew that motion in the district court."

Merck argued that the two-year statute began running in Sept. 2001 when the Food and Drug Administration issued warnings to the company about risks associated with Vioxx. The lawsuit was filed in Nov. 2003.

Merck voluntarily took Vioxx off the market in 2004.

The statute began "when the plaintiffs did in fact discover, or when a reasonably diligent plaintiff would have discovered 'the facts constituting the violation' - whichever comes first," Justice Stephen Breyer wrote.

The decision was unanimous, though the previous decision by the U.S. Court of Appeals for the Third Circuit was split.

"Regardless of which, if any, of the events following Nov. 6, 2001, constituted 'discovery,' we need only conclude that prior to Nov. 6, 2001, the plaintiffs did not discover, and Merck has not shown that a reasonably diligent plaintiff would have discovered, 'the facts constituting the violation,'" Breyer wrote.

Vioxx is alleged to have created an increased risk of heart attacks in its users.

From Legal Newsline: Reach John O'Brien by e-mail at jobrienwv@gmail.com.