The judge in the Zypexa 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.
"This invitation,� 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
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 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.
Since Egilman is a physician, 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.
Physicians 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,
could have resulted in many more injuries and deaths.
The only 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 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 physicians.�
"We wanted to reduce significant uncertainties involved
in litigating such complex cases," he stated.
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
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 Lilly�s SEC filings, approximately 1,200 more claims have been
identified that are not included in the settlements.
In a January 15, 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 fell flat."
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 widely disseminated.
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 percent 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 percent to $1.16 billion in 2006.
Lilly has no one but itself to blame for the mess it�s 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 a columnist for OpEd News and an
investigative journalist focusing on exposing corruption in
government. She can be reached at: email@example.com.