The drugmaker dropped a prominent firm, Lowenstein Sandler, from its appeal of a $13.5 million Vioxx case to prevent recusal of a potentially pro-company state Supreme Court justice who the firm represents in a private matter, The New Jersey Law Journal reports.

Doug Eakeley, a Lowenstein partner who won a split decision in the Appellate Division in May, won’t reprise his arguments in the state Supreme Court because, since February, he has been defending Justice Roberto Rivera-Soto against a complaint that the justice abused his office to gain advantage in a private dispute, the paper writes. Rivera-Soto (pictured left) is known as the most conservative judge on the court and, in two Vioxx cases already heard by the court, he voted with the majorities that handed Merck significant victories, the paper notes.

The case coming up before the court is the first Vioxx damages verdict in New Jersey set for review. A doctor prescribed Vioxx to John McDarby in March 2000 and he took it daily until suffering a nonfatal heart attack in 2004, at age 75. Last May, the Appellate Division affirmed a jury’s $4.5 million compensatory damage award, but Merck won reversal of a $9 million punitive damage award.

A key issue to be decided is whether federal law preempts the state’s Product Liability Act on the adequacy of prescription drug labeling. The decision will affect more than 1,700 other New Jersey plaintiffs who are not taking part in a $4.85 million global settlement of 47,000 claims, Merck says in its petition, the paper writes.

It remains unclear whether the judge, even after Eakeley’s departure, will be concerned with the appearance of impartiality to step down from a case in which his attorney played a central role in an earlier stage. Ellen Relkin of Weitz & Luxenberg in New York, who represents McDarby, declined to comment, so it is not known whether she would ask Rivera-Soto to recuse himself, the paper reports.

The other two cases in which Rivera-Soto voted with majorities in favor of Merck included a state Supreme Court ruling in which the court decided the state’s Product Liability Act didn’t provide a cause of action seeking medical monitoring for Vioxx patients with no symptoms. In the second, the court denied an attempt by unions and insurers to pursue a class action under the state Consumer Fraud Act to recoup payments for Vioxx prescriptions, the paper notes.