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Friday, March 23, 2007

Ind. Decisions - More on "Judge Rules Drug Documents Must Be Returned to Eli Lilly"

The ILB has had a number of entries (see list here) on Lilly's drug Zyprexa. Most recently was this entry from Feb. 14th, 2007 on the 78-page ED NY decision , holding that, to quote the NY Times, "confidential marketing materials belonging to Eli Lilly & Company about its top-selling anti-psychotic drug Zyprexa must be returned to the company by a doctor and a lawyer who, the judge said, engaged in a scheme to leak them to the news media."

Julie Hilden, a FindLaw columnist, was disappointed with the decision, as she relates today in a column titled "A New York Times Reporter's First Amendment Civil Disobedience Claim: The Case of the Secret Eli Lilly Zyprexa Documents," which begins:

Last month, Judge Jack Weinstein of the U.S. District Court for the Eastern District of New York issued a decision in litigation that, as he noted in his opinion, "raises intriguing questions of when it is appropriate to conduct civil litigation in secrecy, and of what are appropriate limits on civil disobedience by newspaper reporters, forensic experts, and attorneys."

The litigation involved top-selling anti-psychotic drug Zyprexa. The plaintiffs claim that the drug's maker, Eli Lilly, gave inadequate warnings regarding the risk of obesity and diabetes in Zyprexa users.

During the litigation, a reporter, an expert, and an attorney who was not otherwise involved in the case decided to defy the court-imposed protective order that was issued to maintain the confidentiality of certain documents.

Their motivation was both urgent and understandable: They were concerned for the health and safety of those taking Zyprexa. But their tactics were questionable:

In order to circumvent the protective order, they concocted a deceptive ruse to ensure that the content of documents produced in the ongoing Zyprexa litigation became public.

Moreover, they failed to try legal means before they resorted to illegal ones, ignoring a specific procedure that would have allowed them to challenge the documents' secrecy vis-à-vis the public in court. As I will explain, this error complicated what would have otherwise been a simple case of justified civil disobedience.

Posted by Marcia Oddi on March 23, 2007 05:21 PM
Posted to Indiana Decisions