Judge Rules Drug Documents Must Be Returned to Eli Lilly
Source: The New York Times
A federal district judge in Brooklyn ruled yesterday that confidential marketing materials belonging to Elil Lilly & Company about its top-selling anti-psychotic drug Zyprexa must be returned tothe company by a doctor and a lawyer who, the judge said, engaged in ascheme to leak them to the news media.
The documents were part of evidence provided by Lilly as part of alawsuit filed by patients who claimed that side effects from Zyprexacaused excessive weight gain and diabetes.
In the 78-page decision, Judge Jack B. Weinstein Federal District Court ordered Dr. David Egilman, a special expertfor the plaintiffs, and James B. Gottstein, a lawyer in Alaska, toreturn the documents to Lilly.
A New York Times reporter, Alex Berenson, was given a copy of the documents, whichshowed that Lilly executives had kept information from doctors aboutZyprexa’s links to obesity and higher blood sugar, a claim Lilly has denied. He wrote front-page articles based on the information.
Eli Lilly has now paid $1.2 billion to settle more than 28,000 casesfrom individuals who contended that they developed diabetes or otherdiseases from taking Zyprexa.
In the ruling, Judge Weinstein said Mr. Berenson obtained thedocuments after he discussed with Dr. Egilman ways to circumvent aprotective order. Mr. Berenson put Dr. Egilman in touch with Mr.Gottstein, the judge said, so that they might “employ a pretense tosubpoena the documents.” According to Judge Weinstein, the documentswere sent to Mr. Gottstein via an expedited subpoena, which Lilly wasunaware of. Mr. Gottstein then sent the papers to Mr. Berenson andothers.
No other news organizations received the documents, the judge said,because Mr. Berenson told Mr. Gottstein that if the material was notdelivered exclusively to him, the newspaper would not publish anarticle.
Mr. Berenson did not appear at an earlier hearing on the matter,where he was invited to testify. George Freeman, a lawyer for The NewYork Times Company, said that as a matter of “long-held principle,” thecompany believed it would be “inappropriate for any of our journalistsvoluntarily to testify about newsgathering methods.”
In a statement yesterday, Mr. Freeman said: “For the reasons setforth in our letter responding to Judge Weinstein’s invitation, wedeclined to testify voluntarily about our newsgathering methods.Unfortunately, that resulted in an opinion which vastly overstatesAlex’s role in the release of the documents. We continue to believethat the articles we published were newsworthy and accurate, and westand by them.”
Mr. Gottstein, who is president and chief executive of the LawProject for Psychiatric Rights, said, “I was just trying to follow thelaw.”
He said that a subpoena allowed him to adhere more closely to theprotective order than if Dr. Egilman had given the documents directlyto Mr. Berenson.
A spokeswoman for Eli Lilly, Marni Lemons, said: “Our adversariescarefully selected the documents to tell a story that they wanted totell. These cherry-picked documents in no way reflect the strategies oractivities of Eli Lilly & Company. Lilly feels vindicated becausethe judge issued an injunction that prohibits future wrongdoing bythose who took the law into their own hands.”
While the judge asked Mr. Gottstein and Dr. Egilman to return thedocuments, he did not ask Mr. Berenson to do so. Many of the documentsare available on the Internet and the ruling does not ask that anynewspaper or Web site take any action with regard to the papers.
Judge Weinstein reserved some harsh words for Mr. Berenson, whoseconduct he called “reprehensible,” and for The Times, pointing out thatunlike the case of the Pentagon Papers, in which classified governmentdocuments were given to a Times reporter, “here a reporter was deeplyinvolved in the effort to illegally obtain the documents.”
The judge said that the documents’ disclosure posed “significantrisk of harm to Lilly,” and that their “out of context” appearance inthe news media might “lead to confusion in the patient community andundeserved reputational harm.”