Healthy Skepticism Library item: 8502

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Publication type: news

Hurtado P.
Eli Lilly Zyprexa Papers Must Be Returned, Judge Says
Bloomberg.com 2007 Feb 13
http://www.bloomberg.com/apps/news?pid=20601087&sid=aNBRZac2qgyo&refer=home

Full text:

Feb. 13 (Bloomberg) — Confidential Eli Lilly & Co. marketing documents about its best-selling schizophrenia drug, Zyprexa must be returned to the company by a doctor and a lawyer who conspired to leak them to the press, a federal judge ruled.

The documents were first submitted in litigation in New York federal court where patients suing Lilly claimed it failed to adequately warn that Zyprexa can cause illnesses including diabetes. The plaintiffs also said Lilly promoted the drug for unapproved uses. The court had ordered the documents sealed.

According to today’s order, New York Times reporter Alex Berenson suggested Dr. David Egilman, an expert witness in the suit, contact James Gottstein, a lawyer in Alaska. Egilman arranged to pass sealed documents to Gottstein under a subpoena by the attorney for another case, an exception to the seal order. The documents were passed to Berenson, who wrote about them.

``Such unprincipled revelation of sealed documents compromises the ability of litigants to speak and reveal information candidly to each other,’‘ wrote U.S. District Judge Jack Weinstein in Brooklyn. ``These illegalities impede private and peaceful resolution of disputes.’‘

Lilly has paid $1.2 billion to settle the claims of more than 26,000 former Zyprexa patients in consolidated cases presided over by Weinstein. The company had global Zyprexa sales of $4.2 billion in 2005, about 29 percent of Lilly’s total. Lilly declined to provide sales numbers for the drug in 2006.

`Irreparable Harm’

Weinstein ordered Egilman and Gottstein to obey an earlier order demanding the return of the documents to Indianapolis-based Lilly ``to prevent irreparable harm’‘ to the company.

While Weinstein didn’t enjoin Berenson in the order, he called the reporter’s actions ``reprehensible.’‘

New York Times spokeswoman Diane McNulty noted that Berenson and the newspaper declined Weinstein’s invitation to come to court to explain how they obtained the documents.

``Unfortunately, that resulted in an opinion which vastly overstates Alex’s role in the release of the documents,’‘ McNulty said. ``We continue to believe that the articles we published were newsworthy and accurate and we stand by our reporting.’‘

Lucy Dalglish, executive director of Reporters Committee for Freedom of the Press, called the judge’s order ``troubling.’‘

``Any time you have a federal judge finding that a reporter participated in a conspiracy, that’s a frightening notion,’‘ she said. ``This is an area where I don’t think the law is crystal clear.’‘

No Sanctions

Dalglish added that, while Weinstein didn’t issue any sanctions against Berenson, ``it’s not often that you have a federal judge on the record finding that a reporter engaged in a conspiracy.’‘

The documents given to Berenson detail Lilly’s efforts to market Zyprexa for conditions other than schizophrenia and bipolar disorder, for which the drug was approved by the U.S. Food and Drug Administration, according to two New York Times stories written by Berenson.

Weinstein wrote that Egilman, Gottstein and Berenson ``conspired to obtain and publish documents in knowing violation of a court order’‘ and ``they executed the conspiracy using other people as agents in their crime.’‘

Egilman’s lawyer, Edward Hayes, said his client will comply with the court’s order.

``My client thought he was complying with the order, but he didn’t,’‘ Hayes said.

`Vindicated’

``This was not a conspiracy to harm Eli Lilly’‘ said Gottstein, who added that he is considering an appeal. ``The court’s order sealing the documents provided for release of the documents in circumstances like these, and I made a concerted good faith effort to follow those provisions.’‘

Gottstein added that ``Did I want to get this information in front of the public and the medical profession? Of course. Additional lives may well have been saved.’‘

Berenson, who is on a leave of absence to write a book until March, didn’t return calls left at his office or on his mobile phone seeking comment. George Freeman, a New York Times lawyer who represented Berenson in the case, didn’t return a call seeking comment.

``Judge Weinstein vindicated the rights of Lilly and the needs of people with mental illness, their doctors and their families,’‘ said Marni Lemons, a company spokeswoman.

The judge said the First Amendment doesn’t protect reporters from breaking the law.

``Neither members of the media, nor any other branch of our government are authorized to violate court orders.’‘ he wrote.

Papers concerning the release of the documents are filed under In Re: Zyprexa Litigation, 07-CV-0504, U.S. District Court, Eastern District of New York (Brooklyn). The main case is In Re Zyprexa Products Liability Litigation, No. 04-MD-1596, U.S. District Court, Eastern District of New York (Brooklyn).

To contact the reporter on this story: Patricia Hurtado in Brooklyn Federal Court at pathurtado@Bloomberg.net .