Criminal
Prosecution Of Lilly
Sought Over Zyprexa
By Evelyn Pringle
07 January, 2007
Countercurrents.org
California
Attorney, Ted Chabasinski, is calling for the criminal prosecution of
Eli Lilly executives for hiding the adverse effects of Zyprexa, based
in part on articles last month in the New York Times which quote internal
company documents that revealed that Lilly knew about the adverse effects
for a decade but kept the information hidden.
Mr Chabasinski, appeared
by teleconference in US District Court for the Eastern District of New
York, on January 3, 2007, before Judge Jack Weinstein, on behalf of
MindFreedom, a non-profit human rights organization, in response to
a motion by Lilly basically filed to keep the incriminating information
hidden, to defend the public's right to know the contents of the secret
Lilly documents concerning Zyprexa.
Mr Chabasinski told the judge
that the documents are evidence of Lilly executives' "criminal
behavior" and "willingness to kill people for profit."
The court granted MindFreedom's
request for more time to respond to Lilly's motion, and another hearing
is set for January 16, 2007. Meanwhile Judge Weinstein said that he
was taking "no position" about those people who were not named
but who already have copies of the Lilly files on Zyprexa.
Prior to the hearing, in
a letter to the judge, Mr Chabasinski pointed out that while the underlying
case in which the documents were under seal is civil, the documents
reveal criminal behavior on the part of Lilly's executives. "They
have chosen a course of action," he told the judge, "lying
about and hiding the real effects of Zyprexa, that they knew would lead
to the injury and death of literally thousands of people."
"If this isn't criminal,"
he stated, "I don't know what is."
The company documents also
show that Lilly engaged in a massive illegal off-label marking campaign
to get primary care physicians to prescribe Zyprexa for uses never approved
by the FDA to increase profits.
The whole saga began when
Dr David Egilman, MD, MPH, revealed the documents to Alaskan attorney,
Jim Gottstein. Dr Egilman reviewed the documents and learned of Lilly's
illegal conduct a few years ago when he served as an expert in a lawsuit.
However, the case was settled out of court, and Dr Egilman was effectively
muzzled when the judge granted Lilly's request to keep the documents
secret with a court order.
To settle the lawsuit, Lilly
agreed to pay close to $700 million to roughly 8,000 Zyprexa victims
or their family members, with the provision that each person would sign
a confidentiality agreement not to discuss Zyprexa or the terms of the
settlement agreement in return for the money.
Being Lilly obviously planned
to keep the information about Zyprexa a secret, as a physician, Dr Egilman
likely found himself between a rock and a hard place. If he did not
find a way to warn the public, at best he would be guilty of negligence,
and at worst considered complicit in Lilly's elaborate scheme to use
the court system to keep the information hidden so as not to effect
the booming sales of its top selling drug bringing in over $4 billion
a year.
Mr Gottstein obtained the
documents for use in another lawsuit, and after seeing that Lilly knew
10 years ago that Zyprexa caused drastic weight gain and diabetes and
realizing the extent of the off-label marketing of the drug, he turned
the documents over to the New York Times, obviously in hope that the
Times would warn the public and medical professionals who were prescribing
Zyprexa for every ailment known to mankind, without knowledge of the
serious health risks associated with the drug.
Since the New York Times'
articles were published, Lilly's legal team has been working day and
night right through the holiday season trying to use the court system
to muzzle the messengers and get the incriminating information back
under seal.
In reviewing all the legal
paperwork including letters, injunctions, and motions flying around
on the internet, its worth noting that not once do Lilly attorneys,
or the judges handling the case, refer to the underlying illegal conduct
disclosed in the documents that Lilly is working so hard to keep hidden.
The drug maker has been able
to obtain injunctions ordering Mr Gottstein to return the documents
and requiring him to provide the names of all persons and organizations
that he provided them to or discussed them with. The injunctions bar
further disclosure and specifically name individuals and organizations
who are believed to have copies of the documents.
Mr Chabasinski is representing
author, Judi Chamberlin, and MindFreedom International, who are both
named in a December 29, 2006, temporary injunction. "As everyone
is aware at this point," Mr Chabasinski says, "there are thousands
of copies of the documents in question circulating on the Internet and
in the hands of innumerable people."
He says Lilly knows full
well that any attempt to recover the documents is a "futile gesture"
and there is no way to keep them secret. "While the injunction
purports to be an attempt to recover the documents," Mr Chabasinski
wrote in the letter to the judge, "it is clear that its real purpose
is to intimidate Lilly's critics, and the court should refuse to cooperate
with this."
As for Lilly's payment of
$700 million to settle the lawsuit, Mr Chabasinski told the judge, "when
a company is making billions of dollars from some drug, a few hundred
million
dollars is simply a cost of doing business."
"But if drug company
executives know they may face long prison terms for their willingness
to kill people for profit," he states, "they will think more
than twice about what they do."
"If executives can go
to prison for stealing their companies' money," he told the judge,
"surely those who steal people's lives deserve at least the same
fate."
Mr Chabaskinski says Lilly's
biggest worry is that the documents will be reviewed by some prosecutor
and that the real purpose of the injunction is to frighten people into
giving up their First Amendment right to petition the government for
redress of grievances, "which in this situation," he says,
"means putting these documents into the hands of as many potential
prosecutors as possible."
He points out that Lilly
has created a massive public health problem by convincing doctors to
prescribe Zyprexa to many thousands of people, whose drug-caused disabilities
will now drain the public health system for years to come. "It
is not in the public interest," he told the court in the letter,
"to keep documents secret when it will have the effect of making
it much more difficult to prevent the disability of thousands of people."
The pursuit of Mr Gottstein
by Lilly attorneys could almost be likened to being chased around the
country by a group of terrorists. Lilly wants the court to charge him
with criminal contempt complete with sanctions.
Their conduct is clearly
an abuse of the legal system, funded by the ill-gotten profits of Zyprexa,
to run up costs for Mr Gottstein, by harassing him and anyone that he
may associate with. At the court hearing on January 3, 2007, Lilly attorneys
asked the judge to issue an order requiring Mr Gottstein to travel to
New York City for a deposition within 5 days, and:
"Requiring Mr Gottstein
to immediately produce ... copies of any and all documents and information
including, but not limited to, all computer(s), hard-drives, other electronic
storage media, hardcopy documents, emails, e-documents, text messaging,
instant messaging, phone records and voice mails, that refer or relate
to Zyprexa".
And talk about chilling the
freedoms of the First Amendment, Lilly wants the court to force Mr Gottstein
to produce: "Communications he had with anyone relating to these
documents, including but not limited to, his dissemination of or discussions
relating to the documents".
Lilly also asked for the
order to include individual reporters and the top experts on psychiatric
drugs in the US, in demanding that Mr Gottstein's disclose his communications
with "any person, organization or entity who received these documents
including, but not limited to, Terrie Gottstein, Jerry Winchester, Alex
Berenson, Dr. Peter Breggin, Dr. Grace Jackson, Dr. David Cohen and
Bruce Whittington, Dr. Stefan Kruszewski, Laura Ziegler, Judy chamberlin,
Vera Sherav, robert Whitaker, Steve Shaw, Will Hall, Singeha Prakash,
or anyone associated with the Alliance for Human Research Protection
or MindFreedom; and his efforts to retrieve these documents from the
individuals to whom they were improperly disseminated."
Lilly is also requesting
that if anything responsive to their request has been deleted or destroyed
in computers, that Mr Gottstein be required to haul "any and all
relevant computers" to New York City for the deposition, and permit
"forensic examination and recovery of such documents."
In addition to the big bucks
being made by thinking up ways to harass Mr Gottstein, Lilly attorneys
at the Pepper Hamilton Law Firm are making money hand over fist by scouring
the internet looking for more people to harass. On December 30, 2006,
they were apparently working overtime on the Saturday of the biggest
holiday weekend of the year, when they began threatening a private citizen,
Eric Whalen, in emails ordering him to remove the Lilly documents from
his web site stating:
"You are facilitating
the violation of a Federal Court order. Please immediately remove the
link to the file "ZyprexaKills.tar.gz" (or its mirror), including
all cached materials, or we will take further legal action against your
website."
In another email, they told
Mr Whalen, "You have been on notice now for several hours that
you are operating in violation of a Federal Court Order, and you have
thus far, refused to assure your compliance."
"You must take the link
down immediately," they wrote, "or we will take further legal
action to shut down your website, and seek all available remedies."
In his own defense, Mr Whalen
replied to the emails and stated: "The documents linked to on my
website were downloaded from an anonymous source. As far as I know I'm
not under any court order. Dissemination of the contents of the documents
is clearly in the public interest. Is there a legal basis for you[r]
request?"
To avoid having my name added
to the dastardly list above and the risk of being subjected to the harassment
tactics of Lilly attorneys, I hereby declare for the record, that I
did not receive copies of the Lilly documents from Mr Gottstein.
(Evelyn Pringle [email protected]
is a columnist for OpEd News and an investigative journalist focused
on exposing corruption in government and corporate America)
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