Zyprexa Document Leaker: I Wouldn’t Do It Again
5 CommentsBy Ed Silverman // June 3rd, 2008 // 3:55 pm
Jim Gottstein, an attorney who was one of three people named as conspirators in the Zyprexa document scandal last year, recently renewed his fight against a federal-court injunction. The lawyer, who runs The Law Project for Psychiatric Rights, a non-profit against forced drugging; David Egilman, who was an expert witness for plaintiffs’ lawyers suing Lilly, and a New York Times reporter were accused by US District Court Judge Jack Weinstein of violating a court order by scheming to publish sealed documents. The judge called the reporter ‘reprehensible,‘ but wasn’t punished. Egilman settled for $100,000, but argued he didn’t admit to anything illegal. We asked Gottstein where he thinks he stands…
Pharmalot: What mistake did you make in this whole episode?
Gottstein: It’s exactly as I testified to Judge Weinstein. I should have insisted on seeing a copy of the Secrecy Order to which Dr. Egilman was bound, and I messed up on the form of the initial subpoena….If Dr. Egilman intended to violate the protective order he could have just surreptitiously gotten the documents to the New York Times and from whence they came would probably never have been discovered…
In hindsight, these are both really dumb mistakes, and I guess Judge Weinstein just didn’t believe I was that stupid. I do try not to be so stupid. He concluded it was part of a grand plan of conspiracy. That’s just not true. I don’t think I have ever had any experience with such a secrecy order, although maybe once when I just started out, so what is obvious in retrospect was not obvious to me at the time….But I think the biggest mistake was really made by Lilly’s lawyers…
The secrecy order provides if Lilly doesn’t object within a reasonable amount of time after being notified of the subpoena, the subpoena must be complied with. It also says that Dr. Egilman has to cooperate in making such an objection. I fully expected Lilly to immediately instruct Dr. Egilman to object, which is how the secrecy order is set up. If they had done that then the issue would have automatically been sent to the Alaska Court to decide if the subpoena should be enforced. I was trying to prevent my client from being forcibly drugged with Zyprexa, as well as any other psychiatric drugs, and believe that the Alaska Court can not possibly properly find the forced drugging to be in my client’s best interests when critical safety and effectiveness information is being hidden. That’s what I expected to happen.
However, after having blown it, Lilly’s lawyers march into court with its overwhelming force against me and they win before Judge Weinstein, who after all doesn’t know me from Adam. The whole thing could have been avoided if Lilly’s lawyers had objected to the subpoena before Dr. Egilman determined they had been given a reasonable opportunity to do so. Of course, they erroneously thought they had more time, but still they shouldn’t have waited almost a week; all they had to do was instruct Dr. Egilman to object. Lilly’s lawyers, however, seem used to coming into court after they have missed a deadline like with the Zyprexa Papers and preventing public release through endless litigation.
Pharmalot: What are you facing from Lilly if there is no settlement?
Gottstein: Lilly has threatened to seek civil and criminal contempt sanctions against me and try and have my license to practice law taken away. While I made a couple of mistakes, I believe I should prevail if they brought any of these actions against me. However, I thought I should prevail last year before Judge Weinstein ruled against me. Even if I prevail, the legal fees have already been far more than I can afford with me having pretty much exhausted my available credit with quite a bit of incurred legal fees still to be paid. I am thankful that people have contributed to my legal defense fund. I am still in a big financial hole from the legal fees, though. Maybe the end is in sight.
Pharmalot: What do you think made Weinstein dismiss the shareholder suit and say info about Zyprexa could have been found easily in analyst reports or medical literature when many documents discussing the side effects in greater detail were under seal before The New York Times episode?
Gottstein: The lawsuit involved shareholders who complained they lost $3.49 per share in the days after the New York Times story broke. What I’m fighting for is people’s right to not have this class of drugs forced on them by judges who are not being told the truth about them….It does seem inconsistent for Judge Weinstein to say in my case that these documents are trade secrets so damaging to Lilly if they had to explain them and must therefore be kept secret, and then say it would have been easy for Lilly’s shareholders to get them if they had tried.
Pharmalot: Beyond your own situation, what do you believe is at stake in this situation?
Gottstein: I think the most important thing at stake is how drug companies are allowed to keep critical safety and efficacy information secret from the public. Lilly has essentially paid $1.2 billion to keep information about Zyprexa secret in order to keep its sales going. It’s not just Lilly and Zyprexa, of course, it’s a problem with the whole industry.
Pharmalot: Knowing what you know now, would you do it again?
Gottstein: The short answer is no.
pg
Should the Judge have sealed those documents in the first place? By doing so information, at least some of which concern undisclosed important health risks, was kept from physicians across the globe.
By sealing those documents (’stifling the scientific process’) the Judge also appears to have lost sight of certain basic principles of justice he had a decade ago:
“[p]rotective orders may have a legitimate role when there is no public impact or when true trade secrets are involved. But we can strike a fairer balance between privacy interests of corporations and the health and safety of the public. A publicly maintained legal system ought not protect those who engage in misconduct, conceal the cause of injury from the victims, or render potential victims vulnerable. Moreover, such secrecy defeats the deterrent function of the justice system.”
“Individual Justice in Mass Tort Litigation” by (Judge) Jack B Weinstein, February 2005, Page 70
Dan
Written with the belief that documents should not be sealed if patient safety is an obvious concern:
Crime and Punishment: Enough for Corporate Wrongdoing?
Corporate crime should not be a new concept to many. However, it has evolved into more troubling ways- not only in regards to its severity, but the methods of deterrence now being implemented against corporations- involved in the health care industry in particular. So it may be becoming progressively worse for U.S. citizens as a result.
Rather than speak of all corporations, what will be discussed is government health care fraud. Fraud basically is deception with the potential to harm others. In the case of pharma companies, this may include improper promotion and marketing, meaning that such tactics are or may be deceptive misconduct that may be illegal. In addition, there are the crimes of kickbacks and lesser crimes of misbranding products. Probably more methods of wrongdoing as well do in fact exist and happen. Yet the point is that drug companies should not engage in such wrongdoing to enrich their faceless existence with profiting off those who are ill in illegal ways.
How is such conduct discovered? Typically by whistleblowers who worked for the described pharma company, and such people are rare for a number of reasons. The whistleblower then seeks legal agents and files what is called a qui tam false claims act with a district attorney’s office (Boston or Philadelphia, if you want prosecutors to take you seriously). After the case is filed, the whistleblower verbally acknowledges the charges and evidence to the chosen prosecutors and others.
Such cases usually take years for unclear reasons, yet in the past two years, the settlements from such cases has approached 2 billion dollars after investigations ended that took years, which is tax dollars returned to the American public with these settlements.
So, what has been happening once a pharma company is busted. Criminal indictment by the district prosecutor? Hardly, yet appropriate. Usually, the prosecutor’s objective is to dismiss the case, but give the impression that such activities will not be tolerated by our government. So Corporate Integrity Agreements are mandated to the pharma company, but not really taken seriously, as some have more than one of these agreements active still. It’s an invisible ankle bracelet. A pharma company can and have committed equal or worse crimes while under such an agreement. This Agreement is issued after the deferred or non prosecution agreement is sentenced to the law-breaking corporation, which basically is a pre-trial diversion. Essentialy, it’s just parole, which is supported by the DOJ and the administration. The criminals admit wrongdoing, but not guilt. And they pay a settlement in the neighborhood of hundreds of millions of dollars. Not that shocking, if you consider the income of big pharma companies. These agreements are relatively new and partially a result of suggestions from what was known as a Thompson memo, which basically was created by a DOJ guy as commandments for prosecuting corporations and variables to consider when doing so, which ultimately offered responses as to why a greater degree of punishment was not enforced.
We are one of three countries in the world with the most prisoners behind bars, yet those that do similar if not greater harm to others get out of jail free. Double standard, I would say. Is this behavior by our legal system towards corporations an effective deterrent? Most think not. It rather seems like tacit approval of their conduct. And health care fraud may be more damaging than other types in other industries, yet lack of regulation allows such crimes to continue.
Citizens should make the laws in our country. Justice would then finally exist.
“Corporations cannot commit treason, nor be outlawed, nor excommunicated, for they have no souls.”
—- Edward Coke
Dan Abshear
pg
“Dan
Written with the belief that documents should not be sealed if patient safety is an obvious concern:
Crime and Punishment: Enough for Corporate Wrongdoing?…”
I’d say thats a very good analysis of the situation.
Paul
What does the code of ethics say about “malicious journalism”?
Lisa Van S
Paul,
Malicious Journalism?