Judge Sends Invite
To New York Times Reporter
By Evelyn Pringle
02 February, 2007
judge in the Zyprexa secret document case has sent a New York Times
reporter an invitation to attend a hearing in the on-going Eli Lilly
fiasco in the US District Court for the Eastern District of New York.
Judge Jack Weinstein wrote, "is intended to permit Alex Berenson
to confront testimony received at a hearing in this court on January
16-17 implicating him in a conspiracy to obtain and publish confidential
documents sealed by this court."
According to Lilly, it took
no part in extending this invitation. However, since when does a judge
send out invitations, unsolicited by either side in litigation, to witnesses
or by the sounds of it a potential defendants?
Mr Berenson most likely earned
the invite in December 2006, when he published several articles exposing
the fact that for a decade, Eli Lilly had failed to warn consumers,
members of the medical profession, and the FDA, about risks of severe
weight gain, blood sugar problems, and diabetes associated with Zyprexa.
Mr Berenson also reported
that Lilly had illegally promoted Zyprexa for off-label uses not approved
by the FDA, quoting Lilly's own internal documents as his source.
For years, Lilly has been
allowed to keep this information hidden, while settling thousands of
cases out of court, by falsely claiming that the millions of documents
produced during litigation contained trade secrets and getting judges
to seal them all with protective orders.
In what can only be considered
a heroic act, an expert witness in the Zyprexa litigation, Dr David
Egilman, apparently helped facilitate the outing of some of the secret
documents when he provided them to attorney, Jim Gottstein, who then
provided them to Mr Berenson at the New York Times.
Being Mr Egilman is doctor,
when it became obvious that Lilly was going to continue to keep this
information secret, after settling out of court with the second round
of Zyprexa victims, it can easily be understood why he would believe
certain documents had to be made public.
Doctors take an oath to do
no harm. Allowing Lilly do go on marketing Zyprexa off-label for every
ailment known to mankind without fully warning the public about the
serious health risks associated with the drug would have resulted in
many more injuries and deaths without a doubt.
A sincere desire by a doctor
and an attorney to find a way to warn the public about a dangerous drug
does not constitute a conspiracy by any stretch of the imagination.
The only evil conspiracy
here involves Lilly's off-label marketing of Zyprexa to the extent that
it took a drug approved for the extremely limited indications of treating
adults with schizophrenia or manic depression and turned it into its
number one selling product.
In regard to the out-of-court
settlements, which to date have cost Lilly about $1.2 billion, Lilly's
chief executive, Sidney Laurel, said in a January 4, 2007 press release:
"While we remain confident that these claims are without merit,
we took this difficult step because we believe it is in the best interest
of the company, the patients who depend on this medication, and their
"We wanted to reduce
significant uncertainties involved in litigating such complex cases,"
Lilly's press release expressed
no remorse, only more denial, even when the secret documents quoted
in the media at that time substantiated every allegation made by the
plaintiffs in the cases that were settled out of court.
In the first two rounds of
litigation combined, the company has reportedly settled with about 26,500
plaintiffs, but round three is coming up. According to Lillys SEC filings,
approximately 1,200 more claims have been identified that are not included
in the settlements.
In a January 15, 2007, legal
filing, Lilly attorneys claim the Zyprexa documents are not widely disseminated
in stating: "Despite a concerted effort by a small group of individuals
to take advantage of Dr. Egilman's and Mr. Gottstein's violation of
CMO-3, and to violate the Temporary Mandatory Injunctions, this effort
Wrong. Any reporter who wants
the documents can get them off the internet within a hour max. Furthermore,
any journalist interested in this issue already has them. Just because
they are not being quoted, does not mean that the documents are not
The truth is, Lilly has been
successful in using the court system to threaten and intimidate citizens,
including journalists, into silence. After watching the harassment of
all the people caught up in this dog-and-pony show, as Lilly causes
them to run up massive legal bills, no sane journalist would openly
quote from those documents.
Lilly has plenty to lose
if the truth comes out and doctors and consumers decide the risks associated
with Zyprexa far outweigh the benefits. In 2005, Zyprexa represented
30% of the company's total sales.
But if Lilly is to be believed
that it is not promoting the off-label use of Zyprexa, there seems to
be no end in sight to the epidemic of mental illness sweeping the planet
because according to Lilly's latest SEC filing, Zyprexa sales rose another
12% to $1.16 billion in 2006.
Lilly has no one but itself
to blame for the mess its in. If the company had ignored the articles
in the Times, and went on its merry way of promoting Zyprexa off-label
the same way it had for a decade, people would have lost interest in
the story and forgotten what was in the documents.
Furthermore, if Lilly is
looking for a scapegoat, the finger of blame should be pointed at the
company's high-priced legal team that screwed up royally by opening
the door to First Amendment arguments.
Evelyn Pringle is an investigative
journalist focused on exposing corruption in government and corporate
America. She can be reached at: firstname.lastname@example.org
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