Editor: Please tell our readers about the reasons Weil Gotshal has recently opened a New Jersey office in Princeton. What client base do you expect to serve? What is your blueprint for expansion?
Sullivan: We opened this office in order to service our national and international clients who have litigation in New Jersey, which has become a hot bed for high-stakes litigation. In addition, I have done a lot of work for life sciences, biotech and pharmaceutical companies, many of which are located in the Northeast Corridor. We’re not looking to have an enormous office in New Jersey because we have significant offices in New York, Washington and Boston, but New Jersey is a strategic location for both high-stakes trial work and litigation work generally for our clients in the life science area and for our national and international clients elsewhere who happen to have litigation in New Jersey.
Editor: What are your practice areas?
Sullivan: Besides litigation, we do a fair amount of counseling for clients about litigation risk issues, including due diligence work in connection with acquisitions, risk assessments for companies that may be in the process of being acquired by our clients.
Editor: You have several notable victories as a litigator in the healthcare arena. Could you tell our readers about the victory you won for your client Philip Morris USA against a group of 37 Missouri hospitals for which you were applauded by the Financial Times for “innovative lawyering.”
Sullivan: I had not in the past done any work for a tobacco company, but I received a call to jump into a case about six months before trial, a case in St. Louis involving about one-half billion dollars in compensatory damages and billions of dollars more in punitive damage exposure involving 37 hospitals in the state of Missouri. The plaintiffs were suing the tobacco industry for reimbursement for bad debt and charity care patients who were treated for smoking-related illnesses. The trial lasted four months. I was the lead trial lawyer for Philip Morris USA, the largest defendant. After a four-month trial we won a complete defense verdict on all counts against all plaintiffs.
Editor: You were also lead counsel for Merck in several of the Vioxx cases. What was the basis for awarding the victory to your client?
Sullivan: I was able to secure the first defense verdict for Merck in the Vioxx litigation. Merck had been hit with a verdict in Texas for about $250 million and was facing an important next trial in Atlantic County, New Jersey. I was lead trial counsel for Merck in the New Jersey case. We were able to show the jury the important work that companies like Merck do in developing treatments for some of the crippling and often fatal diseases that afflict us – cancer, AIDS, autoimmune diseases, etc. Once the jury heard some of the doctors who worked at Merck who testified that prior to joining Merck they had treated people with cancer and other diseases that responded to such treatment, the jurors had a balanced picture of the value of Merck’s contributions, as opposed to the distorted picture of the company painted in the press. They were impressed by the good works of the Merck doctors and scientists and their dedication to safety issues.
I tried three Vioxx cases on behalf of Merck in Atlantic County of the 16 cases tried throughout the U.S. Because they won more than they lost and because of their trial victories, Merck was able to get a resolution of the litigation that satisfied the investor community and was able to put that litigation to rest.
Editor: You were also lead counsel in the Cardinal Health litigation involving alleged patent infringement in gel capsules.
Sullivan: I was brought in as trial counsel by Cardinal Health in a patent litigation and worked with patent lawyers at the company involving gel-capsule technology. After the Markman hearing we were able to settle that case right before trial.
Editor: How does the American Invents Act affect your practice as a litigator? Are there any shortcomings in the legislation you would like to see improved?
Sullivan: It is an incredibly significant piece of legislation that will affect all tech companies, pharma companies and many others. It is being closely watched by those of us in this practice as well as by our clients to see how the courts implement the law. From a patent litigation standpoint this switch to a first-to-file system and away from the former first-to-invent system will be important because it will impact the kinds of arguments that are available in developing prior art defenses in patent cases. I also think that the efforts of this legislation to try to curb patent troll practices will be important to watch and may or may not impact the volume of litigation in this area, depending on the stringency with which the act is applied by the courts. As you know, no legislation is ever perfect, and there are a lot of things that I think folks wish had been in the legislation, but we’ll see how the courts interpret it going forward.
Editor: There have been recent IP cases involving natural organic processes where the Supreme Court determined that there was no basis for patent issuance. Do you think this decision offers a bright line in determining patentability of processes?
Sullivan: The Mayo Collaborative Services v. Prometheus Laboratories, Inc. case decided in March 2011 was another important pronouncement in the field of human biology. The key issue was whether a method of treatment for administering drugs in immune-mediated gastrointestinal diseases could be patentable under the patentable subject matter standard of section 101 of the Patent Act. (In this case, the court held that the method was not patentable.) It’s going to be important to watch how the lower courts and particularly the Federal Circuit apply the Supreme Court’s decision in the Prometheus case since it goes to the heart of the extent to which companies should and can rely on the patent system in protecting innovation and also in defending cases brought by others. It’s clear that the issue of patentable subject matter is hugely important for the biotech and pharma industries, and it is a key decision to watch as it plays out. Another important decision that both we and our clients are focused on is what happens with the Myriad case in the Federal Circuit, which involves the patentability of genetic material. That will be another highly significant issue for biotech and pharma companies. The issue of patentability in the life science area now has become one of the hottest topics in the IP area, which developments we are following closely.
Editor: Governor Christie and Lieutenant Governor Kim Guadagno have attempted to inaugurate a pro-business program by establishing a “Red Tape” Commission to eliminate unnecessary regulation. Have you seen any salutary effects from these measures?
Sullivan: Not as yet, although a lot of these efforts probably affect more applications through the agencies, which is not something we directly deal with, so I have not seen first hand the impact of that program.
Editor: There have been proposals in the New Jersey legislature to introduce business courts, but they have not received the necessary backing. Would you find that having business courts would be helpful to your practice?
Sullivan: The important thing, whether it’s a business court or otherwise, is to make sure we continue to get terrific judges on the bench. New Jersey courts, particularly our New Jersey Supreme Court, have historically been known as some of the best courts in the country. It’s equally important that we continue both at the trial bench level and at the appellate level to get terrific judges appointed, whether they preside over a business court or a civil or criminal court because a good judge is a good judge no matter where he or she resides. There are many counties where we still have shortages of judges and open appointments, and those of us who practice here are eager that those get filled because there is a significant backlog in some of our state courts.
Editor: What one legislative measure would you care to see passed that would be the most beneficial to your practice?
Sullivan: That’s an interesting question. We’d love to see passage of the proposed legislation providing for the right of immediate appeal when a class action is certified because the stakes are so high in such cases. One other area, in terms of reform, Philadelphia courts have become known as the number one “judicial hellhole” for corporate America. One thing that the Philadelphia courts have done to address that problem in terms of tort and judicial reform is to stop consolidating plaintiffs for trials. In the past they would throw several plaintiffs together in one trial, making it very, very difficult to defend a case and to keep the issues well defined. Some New Jersey courts have been following this practice as well. There is the obvious prejudice when you have so many plaintiffs, muddying the issues. It would be wonderful if we had some legislation or rule making in New Jersey ending the practice of consolidating plaintiffs for trials because it creates an enormous prejudice in terms of the ability to defend those kinds of cases.