February 20, 2007
Judge rules Zyprexa marketing documents to be returned to Lilly
A federal judge ruled last Tuesday that a lawyer and a doctor must return confidential Zyprexa marketing materials to Eli Lilly, stating the pair had engaged in a scheme to leak the documents to the media, The New York Times reported.
The marketing materials were submitted as evidence by the drugmaker in a lawsuit filed by patients claiming Lilly’s top-selling drug, the anti-psychotic Zyprexa, caused excessive weight gain and diabetes.
In a 78-page decision, Judge Jack Weinstein of Federal District Court in Brooklyn ordered Dr. David Egilman, a special expert for the plaintiffs, and James Gottstein, a lawyer in Alaska, to return the documents to Lilly.
New York Times reporter Alex Berenson was also given a copy of the documents, which showed that Lilly executives had kept information from doctors about Zyprexa’s links to obesity and higher blood sugar, The Times said. Berenson wrote front page articles based on the information.
In his ruling, Weinstein said Berenson obtained the documents after he discussed with Dr. Eligman ways to circumvent a protective order. Berenson put Dr. Eligman in touch with Gottstein, the judge said, so that they might, “employ a pretense to subpoena the documents.”
According to Weinstein, the documents were sent to Gottstein via expedited subpoena, which Lilly was unaware of, according to The Times report. Gottstein then sent the papers to Berenson and others.
No other news organizations received the documents, the judge said, because Berenson told Gottstein that if the material was not delivered exclusively to him, the newspaper would not publish an article.
Berenson did not appear at an earlier hearing on the matter, where he was invited to testify.
A spokeswoman for Eli Lilly, Marni Lemons, said: “Our adversaries carefully selected the documents to tell a story that they wanted to tell. These cherry-picked documents in no way reflect the strategies or activities of Eli Lilly & Company. Lilly feels vindicated because the judge issued an injunction that prohibits future wrongdoing by those who took the law into their own hands.”
While the judge asked Gottstein and Dr. Eligman to return the documents, he did not ask Berenson to do so. Many of the documents are available on the Internet and the ruling does not ask that any newspaper or Web site take any action with regard to the papers.
Weinstein, however, reserved some harsh words for Berenson whose conduct he called “reprehensible.”
“Here a reporter was deeply involved in the effort to illegally obtain the documents,” Weinstein said.
The judge added that the disclosure of the documents posed “significant risk of harm to Lilly,” and that their “out of context” appearance in the news media might “lead to confusion in the patient community and undeserved reputational harm.”