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The lead lawyer who won a defense verdict for Merck & Co. last week after a contentious eight-week trial in Atlantic City, N.J., in the second Vioxx case said her trial team’s success lay in letting the jury see “the kind of people Merck’s scientists and doctors really are.” Diane P. Sullivan, a veteran litigation partner in Dechert’s mass torts and products liability group in the firm’s Princeton, N.J., office, parried questions concerning her reportedly fiery demeanor in court with both the bench and her co-counsel, characterizing it as passion in support of her client. At one point, Sullivan drew a reprimand from Atlantic County Superior Court Judge Carol E. Higbee for violating an order barring comments about lawyers in front of the jury. Later in the trial, she cursed at her co-counsel. “I like to try to consider myself passionate in the defense of the client I represent,” Sullivan said, adding that her litigation style consists of bringing “a common-sense, basic style to the courtroom that juries hopefully understand.” She said she appreciates that Higbee, who oversees New Jersey’s Vioxx docket of more than 3,000 cases, faced a difficult task trying the first case of her first mass tort. Sullivan will almost certainly appear before Higbee again. Points of frustration Higbee had ruled against Merck on a number of key issues that “we would have liked to talk about that but we weren’t permitted to,” Sullivan said. For example, Sullivan was not allowed to tell the jury of Merck scientists and doctors who used Vioxx themselves before the company voluntarily pulled it off the market, Sullivan said. “The jury even asked that question, but we couldn’t answer it,” said Sullivan, who has been working on the case for about a year. Sullivan also gave credit for the win to her co-counsel, Christy D. Jones of the Jackson, Miss., law firm Butler, Snow, O’Mara, Stevens & Cannada and Stephen D. Raber of Washington’s Williams & Connolly-”a great team,” she said, despite tactical disagreements she had with them in the courtroom. “Yeah, we had a spirited discussion. When you throw three trial lawyers together with definite views of how things should be done you’re going to have passionate discussions, but we knew we were all aiming toward the same thing-and we were all passionate in our defense of Merck,” Sullivan said. Outside of court, the defense team jogged on the boardwalk in the morning and dined together, she said. Lead plaintiffs’ attorney Christopher Seeger of Newark, N.J.’s Seeger Weiss, pledged to keep fighting in several hundred other Vioxx cases he is handling. W. Mark Lanier of the Lanier Law Firm in Houston, who won a $253.4 million verdict against Merck in the first Vioxx trial in a Texas state court in August, applauded Sullivan’s win but said he was “a bit taken aback by the disrespect she showed the court.” The fact that she won speaks volumes for the job she did representing her client, Lanier said. “I have my hat off to her victory and look forward to trying a case against her some time,” he said. As for what comes next, Sullivan said she has not spoken with Merck about the next Vioxx trial in New Jersey. She is not involved in the Vioxx federal multidistrict litigation, where the third Vioxx trial is set to begin the week after Thanksgiving. Sullivan’s next trial most likely will be a fen-phen case in Philadelphia. She also represents Nutraquest Inc. of Manasquan, N.J., in the $600 million wrongful death action brought against it by the widow of Baltimore Orioles pitcher Steve Bechler, whose death has been linked to his use of the diet supplement ephedra, a case currently in mediation, she said. In the end, mistakes are inevitable while trying cases and there will always be things that could have been done better, Sullivan said.

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