Sullivan's Travels

Princeton's Diane Sullivan will go to any lengths to defend Merck

Published in 2007 New Jersey Super Lawyers — April 2007

It’s a little frustrating for someone as disciplined as Diane Sullivan to know that she may be best known for the time she lost her temper in court. But she doesn’t regret it.

“As an attorney, your client deserves a passionate defense,” she says from her office at Dechert in Princeton.

In fall 2005, Sullivan represented Merck & Co., the company that created the popularly prescribed arthritis and anti-inflammatory drug Vioxx, which allegedly caused a number of heart attacks and strokes. The trial took place in Atlantic City, and observers assumed that having jurors from the state that serves as the unofficial capital of the pharmaceutical industry would mean a friendly audience for the drug maker.

But a series of unfavorable rulings from Atlantic County Superior Court Judge Carol E. Higbee knocked the defense team on its back. It looked likely that the most pessimistic predictions of what Merck might ultimately have to pay out—some $50 billion—might come true.

Sullivan, who clashed repeatedly with the judge, let her vexation show when she snapped at her co-counsel and used a four-letter expletive in court. While she argued with the judge about the permissibility of an FDA memo, her fellow defense lawyer, Stephen D. Raber of Williams & Connolly in Washington, D.C., interrupted her. But the media, hungry for a juicy story, ate it up, and commented on the “feisty” and “combative” female lead counsel.

“If I had been a man, would they have said the same things about me?” Sullivan wonders. “The media saw a female lawyer going up against a female judge. It was a good story for them, but I was just trying to do my job.”

***

Her determination wouldn’t surprise anyone who knew Sullivan, now 44, when she was growing up in Carteret, N.J., in a middle-class Irish Catholic family headed up by Daniel and Anne Sullivan. Her father was an intense man who instilled a love of competition in his three children—all girls. He saw to it that his girls played sports, and played to win.

“I think he had the sense that competition would help us in the future,” Sullivan says. “He went out of his way to make sure his daughters learned the lessons of sports and when you need to be aggressive.”

The lessons extended beyond the playing field. The girls learned to speak up in class and at home, and Dad found himself outnumbered.

“My sisters and I are a year and a half apart, and there was a lot of heated discussion about clothes and boyfriends and things,” Sullivan says, chuckling. “My poor father was surrounded by four women. He lost most of the debates.”

Sullivan was the oldest, and took to tennis, playing in high school in Edison and later joining the varsity tennis team at Fairfield University in Connecticut. When she decided to attend law school at the University of Pennsylvania, no one was surprised. She knew she wanted to be a lawyer. And not just any kind of lawyer.

“I always knew I wanted to be a litigator,” Sullivan says.

After finishing at Penn in 1987, she returned to New Jersey and took a job at Hannoch Weisman in Roseland. She spent six years there before moving on to Lowenstein Sandler, where she stayed for five years.

Her big break came in defending Baxter Healthcare against numerous women who alleged that its breast implants caused health problems. The company wanted a female face to represent it in court, and picked Sullivan for her record of diligence, intelligence and stamina. Sullivan saw the move as a sound strategic choice on Baxter’s part.

“You take opportunity as it comes,” Sullivan says of the fact that her selection was based partly on the fact she is a woman. “The world is the way it is.”

Regardless of her gender, Sullivan was the best choice for the position, according to Simon Kimmelman, who was co-counsel with Sullivan in a 2004 Ephedra case.

“There’s a twinkle in her eye when she’s going to be in court against a good adversary and she knows it’s going to be a tough case and that her skills are going to be used to the fullest,” he says.

Vaughn Crawford, of Snell & Wilmer, was on the national team that Baxter put together to help Sullivan. He remembers her as young and inexperienced but whip-smart and hungry to learn.

“What most impressed me about Diane is that she is a tireless and dogged worker,” Crawford says. “I mean, she just starts when she needs to start and doesn’t end till way past quitting time. She is fearless in the courtroom, not cowed by intimidating judges or bombastic plaintiff’s lawyers, and she gets it done—and this was at a time when she was fairly green in terms of trial experience. She was just fearless, and that’s a hard thing to find in a young lawyer.”

She won the case and established herself as a national figure among courtroom defenders of medical device and pharmaceutical corporations. Her skill as a litigator also grew as she learned how to handle sympathetic witnesses, make medical jargon understandable to a jury and use visual demonstrations in court.

Baxter was so impressed with Sullivan that she became its go-to attorney when its spin-off, Allegiance Healthcare Corp., was sued in federal court in 2002 over latex gloves. A neonatal nurse in Aberdeen, S.D., said the company’s latex gloves caused an allergic reaction in her so severe that she was unable to work—or even leave home. Her claim was only one of hundreds filed by health-care workers seeking legal redress. It was a vital early case, and the nation watched to see what would happen. Sullivan won.

***

In late 2005, however, Sullivan wasn’t riding high. In the wrongful-death case of postal worker and Vietnam veteran Frederick “Mike” Humeston, who had taken Vioxx, it looked as if Sullivan was going to be handed her first major defeat. Judge Higbee issued a series of rulings unfavorable to the defense—she struck the testimony of Vioxx co-developer Briggs Morrison and forbade key FDA memoranda—that were near-death blows.

Higbee and Sullivan had several heated exchanges, with the judge even threatening to have Sullivan removed at one point, and scolding the attorney during her closing arguments. (Sullivan says the two are friendly outside of court.)

But Sullivan hammered back like only a New Jerseyan in front of a New Jersey jury can, emphasizing Merck’s ties to the local community, bringing out a roster of Merck employees and putting faces to the people behind the pharmaceutical giant.

“You get to know the people who work there,” Sullivan says. “I wanted the jurors to see that the people at Merck were quality people, scientists, researchers.”

It worked. The jury found for Merck. In interviews after the trial, jurors said Sullivan’s plain-spoken nature connected with them.

“Diane did what lawyers are supposed to do—represent her clients zealously, be aggressive, stand her ground,” Kimmelman says. “You want a lawyer like that, and whether she clashed with co-counsel or the judge is really irrelevant. To the issue of how good a trial lawyer she is, the results speak for themselves.”

Sullivan, tireless as always, isn’t resting on her laurels. In July 2006, she won another Vioxx case—and her work in this area is far from over. Even though Merck has won nine state and federal cases and lost just four, the company estimates it faces about 27,200 personal injury lawsuits over the drug. It also faces 265 potential class actions. As of fall 2006, there were 6,435 Vioxx cases in New Jersey alone, and Judge Higbee will preside over all of them. So Sullivan is almost certainly going to appear before her again. Merck has set aside $970 million in reserve for litigation expenses, but if you consider that it had already spent $285 million by 2005, and that a jury in Texas awarded one plaintiff $253 million (though state caps will reduce that amount to $26 million), it’s clear Merck can’t afford many more defeats.

Yet Sullivan isn’t fretting. As this issue went to press, she was preparing to take on Mark Lanier, the Texas lawyer who handed Merck its first defeat. She seemed excited, not worried. “He’s a worthy adversary, a worthy opponent,” she says.

She has that twinkle in her eyes.

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