Can Eli Lilly be Held Criminally Liable for Zyprexa?

California 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 by teleconference in US District Court for the Eastern District of New York, on January 3, 2007, 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, 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, 2007. 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.”

“If this isn’t criminal,” he stated, “I don’t know what is.”

The company documents also show that Lilly engaged in a massive illegal off-label marking campaign to get primary care physicians to prescribe Zyprexa for uses never approved by the FDA to increase profits.

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 bringing in over $4 billion a year.

Mr Gottstein 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.

In reviewing all the legal paperwork including letters, injunctions, and motions flying around on the internet, its 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 who are believed to have copies of the documents.

Mr Chabasinski 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.”

“But if 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.”

“If 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 same fate.”

Mr Chabaskinski 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.

Their conduct 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 the court hearing on January 3, 2007, 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 Zyprexa”.

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 documents.”

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 web site 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 compliance.”

“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 dastardly list above 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 an investigative journalist. She can be reached at: evelyn.pringle@sbcglobal.net


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