Eli Lilly Regains Leaked Papers
Wednesday, February 14, 2007
Confidential marketing documents about Eli Lilly's 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 yesterday.
The documents were originally submitted in litigation in Brooklyn, N.Y., where patients suing Lilly claimed the company failed to adequately warn that Zyprexa can cause diabetes and other illnesses. The plaintiffs also said Lilly promoted Zyprexa for unapproved uses. The court had ordered the documents sealed.
According to yesterday's order by U.S. District Judge Jack B. Weinstein in Brooklyn, New York Times reporter Alex Berenson suggested that David Egilman, a doctor and a witness in the litigation, contact a lawyer in Alaska, James Gottstein. Egilman arranged to pass sealed documents in his possession to Gottstein pursuant to a subpoena, an exception to the seal order. The documents were then passed to Berenson.
"Such unprincipled revelation of sealed documents compromises the ability of litigants to speak and reveal information candidly to each other," Weinstein wrote. "These illegalities impede private and peaceful resolution of disputes."
Lilly, which is based in Indianapolis, has agreed to pay $1.2 billion to settle the claims of more than 26,000 former Zyprexa users 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.
Weinstein ordered Egilman and Gottstein to obey an earlier court order demanding the return of the documents to Lilly "to prevent irreparable harm" to the company.
He called the reporter's actions "reprehensible." He said the doctor, lawyer and reporter "conspired to obtain and publish documents in knowing violation of a court order not to do so" and "they executed the conspiracy using other people as agents in their crime."
The documents detail Lilly's efforts to market Zyprexa for conditions other than schizophrenia and bipolar disorder, for which the drug was approved by the Food and Drug Administration, according to two New York Times stories.
"My client thought he was complying with the order, but he didn't," Egilman's lawyer, Edward Hayes, said.
"We're disappointed with Judge Weinstein's characterizations of what happened," Gottstein said. "I believe I followed the process set forth in the sealing order. We're considering filing an appeal."
Diane McNulty, a New York Times spokeswoman, noted that Berenson and the newspaper declined Weinstein's invitation to explain in court 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."