Diane Sullivan of Weil, Gotshal & Manges. Courtesy photo

Johnson & Johnson has moved for a mistrial in a high-stakes talcum powder case after the judge struck the closing argument of its attorney, Weil, Gotshal & Manges partner Diane Sullivan, then allowed the plaintiffs attorneys to wrap up with statements "soaked with venom."

In a motion filed on Monday, Johnson & Johnson said Middlesex County Superior Court Judge Ana Viscomi's decision to strike Sullivan's Sept. 4 closing arguments was improper and prejudiced the jury, which is in deliberations.

"The court took J&J's arguments, crumpled them up, and threw them in the trash, for all the jury and the world to see," wrote Sullivan, a partner in both New York and Princeton, New Jersey. The judge then allowed the plaintiffs attorneys to wage a "brutal, two-day assault on J&J and its counsel" during their closing arguments.

"Plaintiffs' counsel called J&J and Ms. Sullivan liars, predators, manipulators, poisoners, ludicrous, baby-killers, and much, much more," she wrote. "Their closing was soaked with venom calculated to prejudice the jury against J&J—many times worse than anything that supposedly warranted striking J&J's closing."

According to the motion, the judge also rejected all of Sullivan's objections, ordering her to "sit down."

"The draconian penalty of striking J&J's entire closing argument here was disproportionate and unreasonable," Sullivan wrote. "This inadequate procedure produced a grossly unfair order, and now it is too late to fix the errors."

A Johnson & Johnson representative declined to comment. Sullivan and another lawyer on the motion, McCarter & English partner John Garde, in Newark, New Jersey, did not respond to a request for comment.

The mistrial motion is the latest attempt throughout the trial by Johnson & Johnson to attack the plaintiffs attorneys, wrote Chris Panatier, of Dallas-based Simon Greenstone Panatier, in an emailed statement.

"Ms. Sullivan made the decision in closing to accuse counsel for plaintiffs—for at least the second time in this trial—of 'creating evidence,'" Panatier wrote. "This allegation was wholly unfounded and a Hail Mary in an attempt to prejudice the jury against us. It was the coup de grace of her strategy to try the case against the lawyers rather than on the evidence."

The trial involves four plaintiffs diagnosed with mesothelioma, allegedly caused by Johnson & Johnson's baby powder, which contained asbestos, a known carcinogen. Although more than a dozen other similar trials have ended with mixed verdicts, the New Jersey case is one of the few involving the claims of multiple plaintiffs. A case involving 22 women, who alleged that Johnson & Johnson's talcum powder products caused ovarian cancer, ended in a $4.7 billion verdict last year.

Sullivan has represented Johnson & Johnson before, winning a defense verdict last year in a similar trial in the same New Jersey court. Regarding that trial, she acknowledged that she "hit hard" on the theme that the plaintiffs lawyers had perpetrated a fraudulent case for money.

According to her mistrial motion in the latest case, which included transcripts of closing arguments, Sullivan had asked the jury during her closing to consider why the U.S. Food and Drug Administration and others had found no asbestos in Johnson & Johnson's talcum powder products while plaintiffs' experts, paid as much as $31 million by the lawyers, did.

The plaintiffs lawyers, who denied the amount of expert payments, objected several times to Sullivan's statements, prompting sidebars in which Viscomi warned her "please be careful" and threatened to strike her closing argument, according to the transcripts. The judge also had her own concerns, such as when Sullivan referenced "lawyer shows and props."

"How do you think that that comports with the rules of professional conduct?" the judge asked Sullivan during one sidebar. "You are attacking the profession. You have been warned about this."

She then admonished Sullivan for calling the plaintiffs lawyers "sinister," even though Johnson & Johnson's lawyer said she was merely referring to their accusations.

"Don't try to undermine me," Viscomi said, according to the transcript. "When I am giving you a ruling and instruction on how you're to complete your statement, closing statement to this jury. Stop denigrating the lawyers. Or you will find yourself at the risk of having this entire summation struck from the record."

After Sullivan completed her closing argument, Viscomi called another sidebar, stating that Johnson & Johnson's lawyer was "currying favor with the jurors" with a final remark that had "certainly annoyed the judge and the plaintiffs' lawyers. But don't take it out on J&J."

The judge said she was considering striking the entire argument after the lunch break.

"Here's what the court had a problem with," she said, according to the transcript. "What could have been a good closing statement commenting upon the evidence was unfortunately replete with conduct that this court has already warned you about, that this court issued a ruling before opening statements, had to then issue an instruction to the jury after opening statements because you violated the court's ruling, and throughout the course of this trial for which there's a pending motion to hold you in contempt."

When the jurors returned, the judge told them: "This is not about annoying anyone. As professionals, as attorneys, attorneys are obligated to abide by the rules of court and Rules of Professional Conduct. Because of my concern with regard to that, I'm striking the entirety of the defendant's closing statement to you."

Sullivan stood up to object and move for a mistrial. According to the transcript, Viscomi told her, "Overruled. Sit down."

Panatier's closing argument that followed then launched a "torrent of abuse" and "brutal attacks," over which Sullivan objected 23 times, according to Johnson & Johnson's motion, prompting Viscomi to tell her to "sit down" and "stop the outburst."  She also overruled all of Sullivan's objections.

Panatier told the jury that Johnson & Johnson lied to the FDA and that its executives were "monsters and killers" who sold "poison" to babies, according to the motion. He also said Sullivan had broken the rules during trial, made "ludicrous" arguments and, in what Johnson & Johnson called a sexist remark, was "cute" and "funny," but not honest.

"The prejudice here cannot be overstated: The jurors will go back to deliberate with plaintiffs' counsel's countless dire accusations and improper statements still ringing in their ears, telling them that J&J and its counsel are liars, predators, baby poisoners, manipulates, and rule-breakers," Sullivan and Garde wrote in the motion. "Even the most fair-minded, even-handed juror would be strongly influenced by these events."

Panatier, in his email, wrote, "Ms. Sullivan's clear intention throughout this trial was to attempt to derail it by saying/doing whatever she pleased in flagrant violation of the Court's rulings. This wasn't isolated to closing arguments. It began in opening statement, when she was repeatedly admonished by the court, and again throughout her direct and cross examinations of nearly every witness."

He also said that the motion was "replete with false statements and mischaracterizations," such as his allegedly sexist remark about Sullivan. His email, and transcripts of his closing arguments, show he was referring to Sullivan's slides, and not her, as "cute" and "funny."

"This is made up," he wrote. "They put this defamatory statement into their motion to try to win a PR battle that they've been fighting now for months."