Criminal prosecution of Lilly sought over Zyprexa
By Evelyn Pringle
Journal Contributing Writer
Jan 5, 2007, 00:52
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 Wednesday, by teleconference, in US
District Court for the Eastern District of New York 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 and 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.
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."
isn't criminal," he stated, "I don't know what is."
documents also show that Lilly, to increase profits, engaged in a massive
illegal off-label marking campaign to get primary care physicians to prescribe
Zyprexa for uses never approved by the FDA.
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, which brought in over
$4 billion a year.
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.
all the legal paperwork including letters, injunctions, and motions flying
around on the Internet, it's 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 that
are believed to have copies of the documents.
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."
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."
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
Chabasinski 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.
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 Wednesday's court hearing, 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
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
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 website, 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
"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 above dastardly list
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 is a columnist for OpEd News and an
investigative journalist focusing on exposing corruption in
government. She can be reached at: email@example.com.
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