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A big picture of a sympathetic grandmother’s ailing heart, the occasional light touch and a human face on Merck & Co. Inc. helped a New Jersey lawyer convince an Atlantic City jury that Vioxx did not cause that woman’s heart attack. Diane P. Sullivan, a veteran litigation partner in Dechert’s mass torts and products liability group in the firm’s Princeton, N.J., office, convinced the jury that Elaine Doherty had too many other heart problems to blame Vioxx for causing her heart attack. Doherty v. Merck & Co. Inc., No. ATL-L-638-05 (Atlantic Co., N.J., Super. Ct.). “Mrs. Doherty was a very likable plaintiff. She is a delightful person, a grandmother who helped her daughter take care of her grandchildren after her son-in-law died on 9/11. But she had a lot of risk factors for heart attacks,” Sullivan said. With that in mind, the defense focused the jury on Doherty’s multiple-vessel disease, the thickening and hardening of the walls of her arteries and her hypertension. A crucial first trial Investors paid attention to the Doherty trial because it was the first defense verdict in a long-term use case and the first case in which a jury had to decide whether Merck had failed to warn the plaintiff of Vioxx’s cardiac risks, rather than just warn her doctor as in earlier cases, she said. “I gave my entire opening statement under a picture of Mrs. Doherty’s heart, a huge, 6 foot by 3 foot cartoon board showing her cholesterol and clogged arteries. I had it up while I was examining witnesses and also did my closing argument in front of it,” Sullivan said. The illustration was titled “Mrs. Doherty’s Heart: Severe Atherosclerosis.” She added that “while the plaintiffs were up, we kept the heart picture in the back of the courtroom face forward so the jury could see it throughout the case.” After the trial, jurors told reporters that Doherty’s risk factors and heart disease played into their decision that Vioxx did not cause her heart attack, she said. Sullivan said that she was able to use Merck’s doctors as witnesses to give the company a human face. She also used humor while trying the case. This was possible because no one had died and Doherty was in good shape, she said. “Science and medicine can be boring for jurors. When the plaintiffs’ experts saw things that none of the treating doctors saw, we made references to that line in the movie The Sixth Sense� ‘I see dead people’ � alluding to people who see things that others don’t see,” she said. James J. Pettit Jr., a partner in Locks Law Firm in Cherry Hill, N.J., who was first chair for Doherty, did not return calls for comment.
TRIAL TIPS • Visual aids help to tell a jury your story. • A judicious use of humor makes the science easier to follow. • Make sure to give your corporate client a human face that jurors can identify with.

‘Aw shucks’ look This was not Sullivan’s first successful defense of the Whitehouse Station, N.J.-based company’s controversial painkiller. She recorded Merck’s first win in November 2005 � though the court ordered a new trial due to information that came to light in a piece critical of a Merck Vioxx study that ran in the New England Journal of Medicine. Humeston v. Merck,No. ATL-L-2272-03 (Atlantic Co., N.J., Super. Ct.). Last March, Sullivan split a verdict in a pair of cases she tried opposite W. Mark Lanier of the Lanier Law Firm in Houston, losing Humestonon retrial but winning a defense verdict in Messerschmidt v. Merck,No. ATL-L-5520-05 (Atlantic Co., N.J., Super. Ct.). Lanier credited Sullivan’s success to her being bright, well rehearsed and willing to divide her labor with other members of her trial team. But he said that she is not as nimble on her feet as she is in polishing and practicing her lines and arguments. He said that she also is “kind of a bully-type of lawyer.” “She smiles and gives her ‘aw shucks’ look at the jury, but she tries to Rambo the lawyers, Rambo the judge and Rambo the other side,” which doesn’t always work in her favor, he said. “She brings out the sparkle and shine in me and I look forward to meeting her again in court,” Lanier said. Sullivan gave credit to Paul F. Strain of Washington-based Venable’s Baltimore office, her co-counsel in the Dohertyand Humestontrials, who, she said, had been very respectful and effective in his cross-examination of Doherty in particular. Strain ascribed Sullivan’s success to her “great blend of passionate advocacy and personal charm,” adding that her high intelligence gives her “gradations of very strong advocacy [such that] she can notch it up and she can notch it down as needed.” “Trial advocacy is a field that has been harder for women than for men [to succeed in]. Women like Diane are making it easier because she’s so good,” he said.

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