After a jury came out with a defense verdict in a New Jersey talcum powder case last year, Middlesex County Superior Court Judge Ana Viscomi found herself preparing for a second trial involving the same attorney for Johnson & Johnson, Diane Sullivan.

Sullivan's overarching theme during her closing argument in the prior trial was to attack the plaintiffs' lawyers. At a hearing ahead of the second trial, the judge said she was "horrified" at that conduct, and barred Sullivan from doing it again.

"I really think you went beyond," the judge told Sullivan, a partner in the New York and Princeton, New Jersey, offices of Weil, Gotshal & Manges, at the July 11 pretrial hearing, according to the transcript. "There was so much evidence that you could have commented upon, but the running theme of it was lawyer bashing. And it's not what we do. It's prohibited by the rules. It doesn't fall within the civility and professionalism that I know and that you know and that you have extended during the course of your career, and we can't have that happen here."

But it did. And Viscomi, after repeated warnings to "stop denigrating the lawyers," struck Sullivan's entire closing argument in the second trial for violating her pretrial order not to attack the attorneys in front of the jury. "As professionals, as attorneys, attorneys are obligated to abide by the rules of court and Rules of Professional Conduct," she said, according to the transcript. "Because of my concern with regard to that, I'm striking the entirety of the defendant's closing statement to you."

A jury awarded $37.3 million in compensatory damages on Sept. 11.

Lawyers who have seen Sullivan in court said she is calculating and strategic—but not unethical. Her successful trial record comes in high-stakes trials for big clients, such as Johnson & Johnson, Philip Morris and Merck & Co. Inc.

At times, however, she has irked judges and plaintiffs attorneys who have litigated against her. Chris Seeger, who handled a Vioxx trial more than a decade ago in which a different New Jersey judge reprimanded her over similar conduct, said he was not surprised about Viscomi's actions.

"Diane is a highly respected lawyer," Seeger said. "People know in the corporate world what type of trial Diane will bring. She's passionate and smart, but she will push the boundaries. And they know that when they hire her."

Sullivan has filed a motion for mistrial, insisting that the judge's move was improper, particularly since she allowed the plaintiffs' attorney, Chris Panatier, to follow with his own closing argument "soaked with venom."

Sullivan, and a Weil representative, declined to comment for this report.

At the pretrial hearing, Sullivan defended her behavior and a career that spans more than 30 years.

"I've never been sanctioned. I've never been up on disciplinary charges. I've never been up on ethics charges," she told Visconi. "These are personal attacks based on what I submit is fair advocacy."

Lawyers who have worked with Sullivan agreed.

Christy Jones, of Butler Snow in Jackson, Mississippi, who also has represented Johnson & Johnson and worked alongside Sullivan, said she was not familiar with the facts of the recent trial but called general criticism of her colleague "undeserved."

"There are often reasons to question the viability or truthfulness of a plaintiff's claim, and it is unfair to the defense to be barred from questioning either the accuracy of the claim or motives," she wrote in an email. "Our judicial system is designed to be and must be fair to all parties—both individual consumers and corporate producers. When the defense is not permitted to raise these issues, the danger of unfair verdicts results. Unfair verdicts harm all Americans."

Marla Persky, who brought in Sullivan to handle breast implant trials in the 1990s when she was chief of litigation at Baxter Healthcare Corp., pointed to the "more vicious nature litigation has taken over the past 20 years."

"It's become a blood sport," she said, on both sides of the trial. Instead of pointing out, for example, that an opponent's experts provided paid testimony, lawyers accuse them of accepting bribes, she said. Lawyers also call each other liars.

"There's a difference in tone, a lack of civility, and what it does is rob the jury of its ability to decide on the facts and instead they're deciding based on histrionics," Persky said. "And I think one of the reasons why plaintiffs counsel have been going against Diane so strongly is she's playing the game by their rules."

One thing that has not changed that much, however, is the dominance of men serving as lead trial attorneys, particularly in mass torts and commercial litigation, said Persky, founder of Womn LLC, which consults with women attorneys. Male attorneys will "push to stand at the very precipice because they are strong and aggressive litigators."

"She's very smart and she's very strategic," Persky said of Sullivan. "And she is, I believe, as aggressive as male trial attorneys are. And for that, they cannot forgive her."

Sullivan was a partner at Dechert until 2012, when she left to open Weil's Princeton office.

Her career includes multiple trial wins for defendants with a lot at stake.

In addition to mass tort trials for Johnson & Johnson and Merck, Sullivan scored a 2011 defense verdict for Altria Group Inc., the parent company of Philip Morris, in a case brought by St. Louis and a group of hospitals seeking $455 million, plus punitive damages. Then, in 2016, she won a rare class action trial for Altria in a medical monitoring case in Massachusetts.

"She always did an outstanding job and demonstrated the highest of ethical conduct," said Murray Garnick, general counsel of Altria Group. "She never had an issue with the judges in our cases, no sanctions, and not even a suggestion of ethical violation."

But, in the Vioxx trial, Atlantic County Superior Court Judge Carol Higbee reprimanded Sullivan for violating a pretrial order that barred attacks against the lawyers. At one point, the two even ended up in a shouting match. Sullivan, who defended her actions as a passionate advocacy, won a defense verdict. But Higbee granted a new trial after finding that Merck had withheld data. In a 2007 retrial, the jury awarded $47.5 million.

Seeger said both the trial and retrial against Sullivan were among the worst experiences he has had with defense counsel skirting the rules.

"I've tried cases against some pretty tough defense lawyers," he said. "In these cases, you always have the best of the best. And I've walked away from the trial making a friend for life—and we tried to kill each other. The Vioxx case, for me, was aberrant."

In last year's talcum powder trial in New Jersey, Chris Swett, who represented the plaintiffs, Rosalind Henry, diagnosed with mesothelioma in 2016, and her husband, Fred, said he had never litigated against Sullivan before. He did not bring a pretrial motion to bar defamatory attacks against the plaintiffs lawyers, so her closing argument was unexpected, he said.

"I think Diane's conduct is very calculated," said Swett, of Motley Rice in Mount Pleasant, South Carolina. "In the Henry trial, she actually approached me prior to closing arguments and asked me to agree not to make contemporaneous objections during our closing arguments."

He agreed. Then, he said, she "went off on a full-blown attack on plaintiffs attorneys, accusing us of fabricating this whole litigation. I was so shocked that I didn't make an objection at the time. It just shocked me, and it was very calculated on her part. Once you make statements like that in front of the jury, you can't un-ring the bell."

Sullivan told the jury during her closing argument that the plaintiffs' attorneys were among a "long line of people coming in here trying to scam people for money," like the Atlantic City casinos and the boardwalk games, according to the transcript.

"They'll say anything for money," she said of the plaintiffs' attorneys. "The truth doesn't matter, the facts don't matter, the evidence doesn't matter."

Swett minced no words, saying, "Diane Sullivan is one of the worst I've ever been up against in terms of personally attacking plaintiffs lawyers. Obviously, she doesn't care what the judge rules."

A jury took about half an hour to come back with a defense verdict.

Sullivan acknowledged her strategy earlier this year in an interview with The National Law Journal, an ALM publication, about the trial. A key to winning, she said, was "emphasizing how plaintiffs attorneys were manufacturing a case for money."

To Litigation Daily, another ALM publication, in 2018 she said, "We approached this case with an emphasis on two things: fraud and common sense. From the very start of the case, we hit hard on our theme that this case was a fraud perpetrated by plaintiffs lawyers for money."

Citing that trial, and Sullivan's public statements about it, plaintiffs attorneys brought a pretrial motion to bar attacks against them in the most recent trial, which involved four plaintiffs. Viscomi granted the motion.

Then came Sullivan's Sept. 4 closing argument. She repeatedly told the jury that plaintiffs attorneys had created their own evidence, using "lawyer shows and props," and had "sinister" motives, according to the transcript.

"What's going on here?" she asked the jury, according to the transcript. "The difference between science and medicine in the real world and lawsuit fiction, lawsuit stories."

Viscomi struck Sullivan's closing argument, which she said was "replete with conduct that this court has already warned you about."

Panatier, of Dallas-based Simon Greenstone Panatier, declined to comment.

In his closing argument, Panatier countered that Johnson & Johnson and Sullivan had lied and broken the rules throughout trial.

"So how much of Miss Sullivan's closing was about trying to insinuate motives about us?" he asked the jury, according to the transcript. "Did we ever lie to you in this case? Did we ever do that? No. Johnson & Johnson told lie after lie after lie, and they still have the gumption to say … we're plaintiffs lawyers just looking for money and they're an easy target. What a windfall defense, right? What a windfall defense."

According to Sullivan's mistrial motion, she objected to Panatier's closing argument 23 times, all unsuccessfully.

Seeger, who did not attend the trial, suggested that the judge, in rejecting those objections, could have been trying to "let the playing field get equalized."

"Once you put the skunk in the jury, how do you get it out?" he said.