Top Defense Verdict: Gilead Sciences Inc. v. Merck & Co. Inc.

Brooks has long represented biopharmaceutical client Gilead Sciences Inc. and its multibillion-dollar cures for hepatitis C, Sovaldi and Harvoni. She and Singer attained a major upset in March and June, when Brooks first persuaded a federal jury to give rival Merck $200 million in damages instead of the $2.4 billion and future royalties Merck sought on patent infringement claims &mdash followed by Singer's successful argument at a bench trial that Merck's in-house lawyers committed misconduct, wiping out the entire award.

U.S. District Judge Beth Labson Freeman of San Jose found that Merck's actions prior to trial and before the jury involved "repeated and fabricated testimony and improper business conduct" and that Merck was legally liable for an "unclean hands" finding that erased the verdict.

"It was frustrating," Brooks said of watching the jury award even the lower $200 million sum while she and her team were convinced that perjured testimony had infected the verdict. "In my 40 years of practice, I've never seen anything like it."

Brooks, who led the jury trial for Gilead, prepared different cross-examination scenarios with multiple branches within each cross to be ready for any opposing testimony. But no one on the defense team expected that on the first day of trial, Merck would announce that its in-house counsel would disavow his deposition testimony and would admit he was present at a 2004 phone call with researchers from another company who were developing the drug at issue. "I wasn't ready for their whole new explanation" that included new lies on the witness stand, she said.

Singer, who handled the subsequent bench trial, persuaded Freeman that the rarely successful "unclean hands" defense was appropriate. That part of the case was a six-hour marathon of oral argument, with the judge peppering the attorneys with non-stop questions. "It was unlike any argument I've ever done," Singer said. "And the judge held another hearing a month later. Then she produced an extremely detailed piece of judicial writing, and whether you're a Gilead fan or a Merck fan, it was an amazing opinion. The entire case was quite a wild ride."

— John Roemer