Eli Lilly Documents to Remain Secret Says Judge
CategoriesEli Lilly has asked for and obtained an injunction against mental health rights advocate Jim Gottstein saying he may not distribute documents obtained by subpoena from the records of a previous court case. The internal documents detail the drug maker's efforts to cover up its knowledge of serious side effects of anti depressant Zyprexa and to instruct sales people to market the drug for uses that it had not been approved for by the FDA.
The decision of judge Jack Weinstein (PDF) bars Gottstein from further distributing the documents, but the the cat is already out of the bag.
In "Leaked Documents, the Web, and Prior Restraint", Amy Gahran describes how efforts to round up the documents and put the "secret" stamp back on them will essentially be useless.The case is highlighting a serious problem in our society: lack of transparency. In this case, documents that show reprehensible if not criminal conduct by Eli Lilly were part of a court case, but the settlement made between the drug maker and the people who had been harmed by Zyprexa included a clause that sealed the documents in perpetuity. This is a rather common practice. Drug companies are sued, the cases are settled, the documents sealed, and business continues as usual. Lilly's suppression of its own evidence has been called "reckless and threatening to women's health and life" by Dr Samuel Epstein, MD, Chairman of the Cancer Prevention Coalition, according to an article by Evelyn Pringle: Eli Lilly The Habitual Offender.
While there is no chance to make the leak undone, Lilly sems to be on a punitive expedition now. The company apparently wants to "make an example" of Jim Gottstein who says the drug maker is likely to seek "financially ruinous contempt sanctions" or even go for criminal contempt of court. That would discourage future leaks, seems to be the calculation, but I am not so sure that the math is correct. If there is any trend visible at all, it is for more transparency, not less. At least that seems to be the case when we look at a new website that is soon to come on line and is slated to provide a safe place for all kinds of leaked documents: WikiLeaks.
Whistleblowers, people in government posts who publish government wrongdoing have long have protection against being dismissed or demoted, but this kind of protection has recently been much reduced or disregarded. But perhaps the anonymity afforded by the net will overcome these difficulties.
Jim Gottstein
Meanwhile, the International Center for the Study of Psychiatry and Psychology has instituted a legal defense fund for Jim Gottstein, to which contributions can be made and the Law Project for Psychiatric Rights, whose President and CEO Gottstein is, provides some information on the recent decision and the background of the case:
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Judge Issues Permanent Injunction in Eli Lilly Drug Case
Congress Encouraged to Subpoena Zyprexa Papers(PDF here)
U.S. District Court Judge Jack B. Weinstein issued a permanent injunction today, barring mental health rights advocate and attorney Jim Gottstein, and expert witness Dr. David Egilman, from further distributing internal Eli Lilly documents concerning the drug Zyprexa. The documents were recently reported in the New York Times to contain evidence that Lilly downplayed the risks of Zyprexa, its best-selling drug, and trained its sales force to encourage doctors to prescribe the drug for non-FDA approved uses.
Last December, Gottstein, who is President and CEO of The Law Project for Psychiatric Rights, Inc. (PsychRights) subpoenaed internal Eli Lilly documents for a case involving forced drugging of a client. The documents were under a protective order as part of a massive products liability case, but the protective order also provided the steps by which the documents might be subpoenaed. Believing he had obtained the documents legally, and because of the importance of the information to patients, doctors, and the general public, Gottstein released the documents to the New York Times and others.
Zyprexa is big business for Lilly: last year’s sales of the drug amounted to $4.4 billion. Lilly sought and obtained an injunction against Gottstein and others to whom he had sent the documents--which Lilly claims contain "trade secrets"-- prohibiting them from disseminating the internal company files. By that time, however, the New York Times had begun publishing stories on the files. Soon thereafter, various versions of the files appeared on the Internet.
"This was not a conspiracy to harm Eli Lilly." says Gottstein. "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 to the letter. If anyone truly intended to violate the sealing order, there would have been no reason to even subpoena the documents."
Judge Weinstein saw it differently, outlining other means in the sealing order by which the documents might have been obtained and choosing to continue the injunction against Gottstein. While the injunction also covers others who received the documents directly from Gottstein, but still have not returned them, Judge Weinstein refused to honor Lilly’s request to continue the injunction against various websites that had posted the documents, nor were the New York Times, or other news organizations who have the documents, named in the injunction.
In fact, as Judge Weinstein pointed out in today’s order, "There has already been sufficient revelation in the New York Times so that if Congress, the Food and Drug Administration, or the Federal Trade Commission wish to investigate or act they have grounds for doing so, subpoenaing protected documents as necessary for their purposes."
The most important issue, says Gottstein, is the right of patients and the public to know the truth about Zyprexa. "Zyprexa has killed and permanently sickened thousands of people who have taken it. The files show that the manufacturer hid vital information about the drug’s safety not only from patients, but also from doctors. The bottom line is patient safety." He continued, "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."
Today’s order releasing several people and websites from the temporary injunction does not take effect for 10 days, to allow time for Eli Lilly to file an appeal to try and keep them enjoined. Gottstein plans to continue to use mechanisms suggested in the order to obtain access to the documents for his clients. “My continued efforts to obtain the information legally are a testament to my respect for our legal system.”
Judge Weinstein’s decision, the New York Times articles, and other background information on the case is available on the PsychRights website at http://psychrights.org.
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The Law Project for Psychiatric Rights is a public interest law firm devoted to the defense of people facing unwarranted forced psychiatric drugging and other forced psychiatric interventions. PsychRights is further dedicated to exposing the truth about these treatments and that the courts are being misled into ordering people to be subjected to damaging drugs against their will. Extensive information about this is available on the PsychRights web site: http://psychrights.org/.
- - -Some background on the judge who made the decision in this case, forwarded by a reader:
THE JUDGE’S ROLE IN THE ZYPREXA SCANDAL
Background of the Judge
Jack B. Weinstein, age 85, has, for more than a quarter of a century as chief judge for the Eastern District of New York, supported an independent judiciary. He has single-handedly virtually written the book on large scale personal injury and mass tort litigation. He has worked with both chemical manufacturers and Agent Orange plaintiffs which were clogging the court system and pressured both sides to establish a $180 million fund for the veterans taking part in this class action, which served to unclog the court calendars. He also worked with the backlog of asbestos injury cases to consolidate them. While these procedures do move cases along, in 1992, he told the Wall Street Journal that the present system that he created does not always meet peoples’ needs, and that many people caught up in mass tort cases feel “alienated and dehumanized.”
Judge Weinstein has always tended to avoid harsh criminal sentences. In previous cases, according to archival reports from the New York Times, Judge Weinstein has set award limits based upon statistical guidelines for pain and suffering around what he considered “reasonable compensation.” In the past, he dismissed a suit brought by the NAACP against the gun industry and has also dismissed lawsuits against chemical companies by veterans of the Viet Nam War who claimed that exposure to the defoliant Agent Orange had given them cancer. He also dismissed a case filed on behalf of millions of Vietnamese who claimed that American chemical companies supplied the U.S. military with the defoliant Agent Orange and hence committed war crimes.
Judge Weinstein’s style of aggressive determination in the court system has often left him open to attack and to many reversals of his decisions. Sheila L. Birnbaum, an attorney who frequently appeared in his court said, “He often reached what he believed to be the right result and then reached past the law to get there.” This activist tendency has earned him the nickname “Reversible Jack.”
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