Eli Lilly pays Alaska hush funds (well, basically)

Eli Lilly Settles Alaska Suit Over Zyprexa

Eli Lilly has agreed to pay $15 million to the state of Alaska to settle a lawsuit claiming that the company’s schizophrenia drug Zyprexa caused patients to develop diabetes, Lilly and the state said Wednesday morning.

The settlement is something of a surprise, coming three weeks into a trial over the state’s claims in Anchorage. The state sued to recoup medical bills it said were generated by Medicaid patients who developed diabetes while taking Zyprexa. The case had not yet reached the jury, although closing arguments were expected this week.

Because Alaska is such a small state, with only 670,000 residents, the $15 million figure is a relatively large payment by Lilly. Many other states have sued Lilly with similar claims or are participating in settlement talks led by federal prosecutors in Pennsylvania.

There is no way of knowing whether the $15 million payment to Alaska will represent a benchmark for the broader talks, but if it does, Lilly might need to pay billions of dollars to resolve the bigger cases. Lilly and the prosecutors have already discussed an overall settlement of the state and federal investigations and suits that would require Lilly to pay $1 billion to $2 billion in fines and restitution, according to people who have been briefed on the talks.

In addition, Lilly has already paid $1.2 billion to settle 30,000 individual lawsuits from people who say they developed diabetes after taking Zyprexa.

Alaska and Lilly discussed a settlement before the trial began, and mediation efforts resumed last week, according to the statement announcing the settlement.

State court judge Mark Rindner, who was overseeing the case, may have put new pressure on Lilly to settle last week, when he flatly rejected Lilly’s arguments that he should dismiss the case because the Food and Drug Administration is responsible for regulating drug makers. Judge Rindner said the F.D.A. had done an inadequate job of overseeing the industry.

Zyprexa helps calm the hallucinations and delusions associated with schizophrenia and bipolar disorder. The drug is widely used, with sales of $4.8 billion last year, about half in the United States. More than 23 million people have taken Zyprexa since it was approved in 1996.

Zyprexa also can cause severe weight gain, blood sugar changes and cholesterol problems, and it has been linked to diabetes by the American Diabetes Association.

Internal Lilly documents show that Lilly played down Zyprexa’s risks to doctors and was concerned that any link between Zyprexa and diabetes would hurt the drug’s sales.

Documents also indicate that after Zyprexa’s approval the company encouraged doctors to prescribe Zyprexa to people who did not have schizophrenia or bipolar disorder. Drug companies are allowed to promote their medicines only for uses approved by the Food and Drug Administration, although doctors can prescribe drugs for any use.

In the statement Wednesday morning announcing the settlement, Lilly did not admit wrongdoing. The company said it believed the agreement would be in the best interests of the state, the company and patients.

“A settlement helps us get back to what we want to focus on as a company - developing important new medications through research and partnerships with doctors and patients,” Robert A. Armitage, Lilly’s general counsel, said in the statement.

In mid-afternoon stock trading Wednesday, Lilly shares were down 9 cents each, to $50.08.

Clinical Psych takes a look at Zyprexa

Zyprexa and Key Opinion Leaders

Since the Zyprexa trial is ongoing in Alaska, I thought I should return to the wonderful world of Zyprexa. I encourage readers to follow the Zyprexa coverage at Furious Seasons, Pharmalot, and PharmaGossip. Today, I will discuss the link between key opinion leaders and the marketing of Zyprexa. To preface, a coveted Golden Goblet Nomination could be handed out to several individuals based on their involvement in Zyprexa marketing...

In March 2000, Zyprexa received FDA approval for treatment of manic episodes. One document laid out the multipronged marketing maneuvers that Lilly utilized to move Zyprexa shortly after its approval. Some of the details of this document have been well-covered in a terrific piece of investigative journalism at Furious Seasons. This post will provide some coverage of the link between Zyprexa and the key opinion leaders who helped popularize the drug across the nation.

Once approved for bipolar disorder, Lilly utilized several tactics to market Zyprexa for bipolar disorder, including a satellite conference beamed to about 6000 physicians, and 8000 treatment team members in 1000 facilities. The faculty providing this educational service included many of the big names in academic psychiatry, including Paul Keck, Jan Fawcett, Hagop Akiskal, and Alan Schatzberg.

Alan Schatzberg, you say? Yes, the same Alan Schatzberg who is set to become president of the American Psychiatric Association. Some have been less than pleased with his election as APA president, considering his background as a physician-marketer, a key opinion leader with large conflicts of interest. The same Alan Schatzberg who has been involved in marketing passing itself off as continuing medical education.

Lilly also bankrolled dinner meetings, anticipated to draw 150-400 physicians per sitting. Dr. Schatzberg was also listed as a speaker for such dinners. One mental health service provider was impressed enough with receiving such excellent medical education that you can find it on his CV.

In the document outlining Zypexa's big marketing launch, Paul Keck's name appears in the following contexts:

• Satellite symposium provider
• Trainer of "local speakers." I believe this means he would train local physicians in various markets to then discuss Zyprexa with their colleagues.
• Faculty for bipolar weekend symposia
• Faculty for audio conferences
  
• Faculty for a satellite CME workshop
• Faculty for "dissemination of Bipolar information to 30,000 customers"
• Faculty on a "closed symposium" resulting in a CME newsletter and a CME audiotape, both of which were mailed to 30,000 individuals
• Author of two journal supplement articles

Paul Keck was also a member of a task force chartered by the American Psychiatric Association that served to revise the organization's guidelines to provide a more favorable view of atypical antipsychotics (including Zyprexa) in the treatment of bipolar disorder. No conflict of interest there, eh?

Keck said in a 2002 interview that:

"Often," Keck said, "patients with bipolar disorder require complex treatment regimens to manage all phases of their illness, creating a compliance challenge for patients and a management challenge for clinicians. These studies suggest that physicians may be able to use olanzapine as a foundation to simplify patients’ treatment regimens, and the combination of olanzapine and fluoxetine could be an effective treatment choice

It is likely that Keck was not performing all of his "educational" functions for Lilly in exchange for lollipops. He was likely receiving a healthy dose of cold, hard cash. Yet in the article, nothing is written about his financial links to Lilly. Keck has also appeared in press releases saying nice things about Symbyax (fluoxetine/olanzapine combination).

To be fair, Keck has also stumped for Pfizer's Geodon in press releases. Oh, and he also said nice things about Abilify in a press release. I suppose that if one is going to be a true key opinion leader, a real mover and shaker, one should be prepared to say nice things about whatever new drug is released, since each new drug naturally represents an "important" treatment option. Keck, like Alan Schatzberg and Charles Nemeroff, is also currently listed as a member of the clinical advisory board for Neuroscience CME, a for-profit entity awash in drug industry money. Dr. Daniel Carlat has previously written that the "educational" content produced by this organization is biased, and I find that easy to believe. It's not hard to find examples of poorly done industry-funded CME. In fact, you might be interested in reading about a CME activity in which Nemeroff seems to have pulled data out of thin air.

In sum, the usual fun and games were in play when Zyprexa was initially being pushed for bipolar disorder. Some of the biggest names in psychiatry left their fingerprints all over the marketing of Zyprexa and one of these key opinion leaders recently won the presidential election for the American Psychiatric Association. I suppose, then, that American psychiatrists are generally either unaware of conflicts of interest or don't care about them.

The beautiful thing about being a key opinion leader is that one's name recognition is huge. Among psychiatrists, I bet that Schatzberg's name is better known than that of Bill Clinton, since Schatzberg's byline appears on journal supplements and CME so frequently. That can't hurt when running for president of the national professional organization. I will be very interested to see how Schatzberg handles questions about conflicts of interest and drug industry influence on his profession. Don't be expecting any major efforts at reform in the near future.

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another round of anti Big Pharma notes as they do in the kidz

Teen screen

unscrupulous doctors

irresponsible parents

kids with no human rights or advocates

Adrenal system breakdown

Bush family profit$

Big Pharma lies

foster care

schools geared toward behaviour modification

breakdown in the RULE OF LAW
(which prevent child abuse to some degree)

MSM propaganda machine

Essay over

Ricky's diagnois based on mom's input

Jack Kresnak
Special to the State Journal

For nearly three years, Dr. Aurif Abedi, a child psychiatrist at Jackson's Foote Hospital, treated Ricky Holland's strange and reportedly violent behavior with drugs, adjusting them based on reports from Ricky's mom, Lisa Holland.

Abedi first diagnosed the boy with attention deficit-hyperactivity disorder, using assessments from a psychologist and a therapist, Lisa's accounts of Ricky's behavior and his own observations.

Abedi prescribed stimulants such as Ritalin for the ADHD and the antidepressant trazadone to help Ricky sleep.

"He had periods where he did better and then he had periods where he was not doing well," Abedi recalled recently. "When we started finally addressing it as a mood disorder, he did very well."

Abedi prescribed the anti-psychotic drug Zyprexa to help stabilize Ricky's moods. Some of the drugs given to him - trazadone and Zyprexa - are not FDA-approved for children, but their use is fairly common, said Dr. Sheila Marcus, a child psychiatrist and director of child and adolescent psychiatry at the University of Michigan Medical School. The "off-label" use of such medications may occur in children who have disruptive or aggressive behaviors, she said.

In the wake of Ricky's case, Abedi said, he and others working with children in Jackson meet regularly to communicate concerns about kids in the foster care or adoption system.

"Everybody is aware that you could be taken for a ride" by bad parents, he said. "Could this happen again? I hope not. Will it happen again? Unfortunately, I can see it happening again."

Post a Comment View All Comments

Reader Comment	Wed Dec 05, 2007 6:03 pm
OGIC, That's what ticked me off. The child is now an adult, who does not now or ever did have seizures or epilepsy. It was prescribed off label from the psychiatrist. THIS pyschiatrist. Not a medical doctor or neurologist. Brandy, Did you follow the controversy about the State of Maine prescribing birth control pills for children as young as 11 years old, through the school health clinics? They will not share medical information with parents without a release from the student. state law, which allows the students to decide whether to inform their parents about the SERVICES they receive. There are no national figures on how many middle schools provide such services. Most middle schoolers range in age from 11 to 13. http://www.cnn.com/2007/HEALTH/10/18/middleschool.contraception.ap/index.html Permission is needed by the parent to treat the child, but once you give your permission, all bets are off unless litte susie wants to include you. Most children would tell their parents that the school doctor wanted to prescribe them prozac for their depression after sally broke up with johnny, but not all of them. The schools don't have to tell you either. The schools in Illinois don't even have to tell you they are testing your children for depression or bipolar, they just do it. It's "MANDATORY". http://www.aapsonline.org/confiden/mhspaul.htm The state of Illinois has also approved a mental health screening program. The Illinois legislature passed the Children's Mental Health Act of 2003 which will provide screening for "all children ages 0-18" and "ensure appropriate and culturally relevant assessment of your children's social and emotional development with the use of standardized tools." In addition, all pregnant women in Illinois are to be screened for depression. Dr. Karen R. Effrem, another physician and leading opponent of mandatory screening recently stated, "Universal mental health screening and the drugging of children, as recommended by the New Freedom Comission [presidential commission], needs to be stopped so that many thousands if not millions of children will be saved from receiving stigmatizing diagnoses that would follow them for the rest of their lives. America's school children should not be medicated by expensive, ineffective, and dangerous medications based on vague and dubious diagnoses." Sounds nice. Check out all the people who collect a check for getting their hands in the cookie jar of the pharmaceutical industry. But it's all in the best interest of the children. Riiiiiiiiiight. http://www.ivpa.org/childrensmhtf/pdf/2007ICMHPAnnualReport.pdf For the sheep and constitutionalists alike. Don't miss this. Where else can you get NCLB being a portal for drugging children AND the FBI saying that people who defend the constitution are "mentally unstable" in one page? I knew some lawyers were pretty whacko, but all of them? http://edaction.org/2004/082704.htm
Reader Comment	Wed Dec 05, 2007 2:38 pm
I also think that children are prescribed far too much medication. I also think that children are diagnosed with ADD and ADHD when it really is not the case. However, there are times when children are in need of medication. Phenobarbital is prescribed for seizures. Epilepsy can be tested for, and if children who have seizures are denied medication to control their seizures, they can die or end up brain damaged. My oldest son is an epileptic and was prescribed Phenobarbital as a toddler. As he got older, the medications changed and he eventually was prescribed other medication. There aren't too many FDA approved medications for babies with epilepsy. nineball, if your friend’s child has seizures and doesn't give her child their medication, he could die, end up with brain damage and she could be charged with medical neglect. Dr's should not be so eager to prescribe non-lifesaving medications, however medication for children should not be automatically dismissed in accurately diagnosed conditions.
Reader Comment	Wed Dec 05, 2007 2:22 pm
Yep, I have to agree too. My husband and I are against it too. I told the school we would have to work together to achieve the goals we want my child to have.
medicating our children	Wed Dec 05, 2007 2:18 pm
My youngest in still in middle school and it has a Health Center and as far as I know Im still the parent to the minor child and they HAVE to tell me of his medical condition. He is a minor and I am his parent. HIPPA doesnt apply to a minor. I do agree with society/parents wanting to put our kids on drugs because they cannot control them, well lets start w/ a good butt whipping and see what happens. I bet they wisen up quickly. My son came home from 6th grade and told me not to tell anyone but his math teacher asked him if he was taking medication (ritalin) and if so had he taken it today. WTH! If he was on it which he's NOT its not of their business. He is a hyper kid but aren't all kids or shouldnt they be. My husband has refused to get him tested and says the teachers just want an easy way out. I have to agree w/ him.
Reader Comment	Wed Dec 05, 2007 12:43 pm
My son will tell me if they slip him anything. As long as they don't give it to him in a drink. but even then, he should be suspicious.

Zyprexa update!!

Time to revisit what is often a topic on this blog: lawsuits against Eli Lilly. And the best place to get that information is from Lawyers and Settlements. LOOK what is transpiring these days, as the Canadian case is still not being pursued in court . .YET.

And here is the wonderful Evelyn Pringle with the latest ..
and think about it; there are STILL people taking this POISON!!

Lilly Faces Mounting Legal Battles Over Zyprexa - Part I

November 8, 2007. By Evelyn Pringle

Washington, DC: Since August 2006, as part of an on-going, multistate investigative effort by approximately 30 states, Eli Lilly has received civil investigative demands or subpoenas seeking a broad range of documents relating to the company's marketing and promotion of the antipsychotic drug Zyprexa, and more states are expected to join the effort.

In addition, a total of ten states are now suing Lilly for Medicaid fraud to recover the cost of Zyprexa purchases for persons covered by the program, along with the past and future costs of treating Zyprexa-related illnesses. Alaska, Arkansas, Louisiana, Mississippi, Montana, New Mexico, Pennsylvania, Utah and West Virginia have filed cases thus far.

Zyprexa belongs to a new generation of antipsychotic drugs known as "atypicals" which arrived on the US market in 1994, beginning with Risperdal, marketed by Johnson and Johnson subsidiary Janssen. Other drugs in this class include Seroquel, sold by AstraZeneca; Geodon, by Pfizer; Abilify, from Bristol-Myers Squibb and Clozaril, marketed by Novartis.

For the first four years that Zyprexa was on the market in the US, it was only approved to treat adults with schizophrenia, and it was not until 2000 that the FDA approved the drug for adults in the manic phase of bipolar disorder.

However, in a matter of a few short years, Lilly turned Zyprexa into its best-selling product, despite the drug's extremely limited approved uses, by influencing doctors to prescribe the drug off-label.

In addition to prescribing a drug for unapproved uses, off-label can mean treating an approved condition for a longer duration of time, or prescribing a drug in combination with other drugs, or at a different dosage, or to a different patient population such children or the elderly, other than those specified on the FDA-approved label.

According to Lilly's SEC filings, the Office of the US Attorney for the Eastern District of Pennsylvania has also advised Lilly that it has commenced a civil investigation related to the company's marketing and promotion of Zyprexa, and a "number of State Medicaid Fraud Control Units are coordinating with the EDPA in its investigation of any Medicaid-related claims relating to Lilly's marketing and promotion of Zyprexa."

Lilly has also received subpoenas from the Office of the Attorney General of the State of Illinois, and the Florida Office of the Attorney General, Medicaid Fraud Control Unit, asking for documents relating to sales, marketing and promotion of Zyprexa.

Lilly's SEC filings also report that the company has received requests for information related to the company's marketing and promotion of Zyprexa from the offices of Representative Henry Waxman, Chairman of the House Committee on Oversight and Government Reform, and Senator Charles Grassley, the ranking Republican on the Senate Finance Committee.

Collectively, the Medicaid fraud lawsuits allege that Lilly illegally influenced doctors to prescribe Zyprexa off-label to patients, including children, for conditions such as behavior and mood disorders, eating disorders, anxiety, post traumatic stress disorder, insomnia, PMS, Alzheimer's, Tourette's syndrome, dementia and other unapproved indications.

The lawsuits also allege that Lilly concealed the adverse effects associated with Zyprexa, including drastic weight gain, high blood sugar levels, diabetes and pancreatitis.

Other serious adverse effects known to be associated with Zyprexa include Parkinson-like symptoms, akathisia, tardive dyskinesia, dystonia, hypotension, constipation, tachycardia, seizures, liver abnormalities, white blood cell disorders and death.

The Mississippi lawsuit alleges that about 10% of Zyprexa patients have developed diabetes, some of whom are children, even though Zyprexa "has never been approved for, nor found to be effective, in the treatment of children."

An estimated 1,500 Utah Medicaid patients who took Zyprexa have developed diabetes, according to the lawsuit filed on May 29, 2007, by state attorney general David Stallard.

Utah is seeking damages including $5,000-$10,000 for each prescription that was "not medically necessary."

Lilly recently attempted to get the Utah case dismissed, in part by arguing that the allegations of off-label promotion and failure to warn were preempted by FDA regulations under a new rule put in place by the Bush Administration, largely viewed as a gift to the pharmaceutical industry.

In 2006, the FDA published a preamble to new prescription drug labeling rules in which it asserted that its approval of the labeling would prevent the filing of lawsuits in state courts premised on a theory that a drug company should have provided additional warnings on a drug's label.

However, the Utah court ruled against Lilly on this issue and stated, in part: "In fields traditionally occupied by the states, such as health and safety regulation, there is a strong presumption against federal preemption," and Lilly "has not overcome this strong presumption."

Pennsylvania alleges that the state spent millions of dollars "for non-medically accepted indications and non-medically necessary uses of Zyprexa," as well as "significant sums of money for the care and treatment" of patients injured by the drug.

Montana's complaint charges that, "Lilly management participated, encouraged and authorized the unlawful payment of illegal kickbacks to physicians in order to continue generating sales of Zyprexa."

The Montana lawsuit is asking for reimbursement on behalf of all citizens who purchased Zyprexa, and not only patients covered by public health care programs, because under the law in that state, the attorney general can request treble damages and attorneys' fees on behalf of all consumers.

There are also several RICO class actions filed against Lilly on behalf of union insurance plans, pension funds, and other private health insurers, which accuse Lilly of violating racketeering laws and allege the drug maker engaged in illegal marketing schemes to promote the sale of Zyprexa for off-label uses and seek to recover the cost of purchasing the drug, as well as treble damages, punitive damages and attorneys' fees.

On June 28, 2007, Lilly lost a motion for a summary judgment dismissal of the RICO claims, based on the preemption argument, when District Court Judge Jack Weinstein for the Eastern District of New York ruled against the company, In re Zyprexa Products Liability Litigation, 2007 WL 1851161.

In a written ruling rejecting Lilly's argument that state law failure-to-warn claims are preempted, Judge Weinstein wrote that "the regulation of public health is an area traditionally occupied by the states, supporting a presumption against preemption."

"Under the present organization of the pharmaceutical industry, the official federal Food and Drug Administration (FDA), and the plaintiffs' bar," he stated, "the courts are arguably in the strongest position to effectively enforce appropriate standards protecting the public from fraudulent merchandising of drugs."

The Judge also noted that Congress had not stated an intent to preempt these claims. "The FDA cannot be allowed to usher in such a sweeping change in substantive law through the back door," he wrote.

The Medicaid fraud lawsuits allege that many children have been turned into customers for the off-label prescribing of Zyprexa. A recent October 7, 2007, report from the Florida Agency for Health Care Administration entitled, "The Use of Antipsychotic Medications with Children," found that pediatric use of antipsychotics increased in the late 1990's and early 2000's, largely due to the arrival of the atypicals on the market.

The report noted that one study documented a 75% increase with commercially insured children aged 0 to 17 from 1997 to 2001, and another study of the managed care population from 1996 to 2001 found a 127% increase among children aged 0 to 18.

The study also reported that antipsychotic use in the Medicaid populations was three to four times higher than commercial populations in the late 1990's, and in one program in the Midwest, the rate of prescriptions grew 304% between 1996 and 2001.

The authors said the analysis showed that the drugs are being used to treat a broad spectrum of disorders, and some of the disorders, such as attention deficit hyperactivity disorder and major depression, "clearly do not call for antipsychotic treatment."

In the 0 to 5 age group, the study found that more than 53% of the drugs were prescribed for ADHD, even though antipsychotic use with children under 6 "should be considered only in very rare circumstances."

A report in the May 10, 2007, New York Times revealed some of the known adverse events that occurred in children who were prescribed antipychotics in 2006 alone. The FDA received reports of 29 children dying, and at least 165 other serious side effects in children, where an antipsychotic was listed as the primary suspect, according to the Times.

The FDA acknowledges that its reporting system only picks up between one and ten percent of the adverse events that take place, which means the number of deaths and injuries above must be multiplied many times over to obtain an accurate estimation of how many children have been harmed by the drugs.

Zyprexa Legal Help

If you have or a loved on has taken Zyprexa and suffered from diabetes or hyperglycemia, please contact a lawyer involved in a possible [Zyprexa Lawsuit] who will review your case at no cost or obligation.

VOICE OF AMERICA

Some Anti-psychotic Drugs Stimulate Appetite, Lead to Weight Gain

By Rose Hoban Chapel Hill, NC
20 February 2007
Hoban report -- Download (MP3) 826k
Hoban report -- Download (Real) 297k

Listen to Hoban report
About a decade ago, drug companies introduced new medications to treat serious mental illnesses such as schizophrenia and mania. The drugs, called atypical anti-psychotics, had fewer serious side effects than older medications, which caused lethargy and facial tics. But these new drugs tend to cause people taking them to gain
Dr. Solomon Snyderweight - an astronomical amount of weight, according to Solomon Snyder. "For instance, a 63-kilo patient can end up weighing 108 kilos after only a period of a few months on the drug," he says.
The neuroscience researcher from the Johns Hopkins University in Baltimore, Maryland, wanted to find out why atypical anti-psychotics caused so much weight gain. So he exposed the brains of mice to the drugs and measured their effect on enzymes in a part of brain that controls appetite.
He ended up focusing on an enzyme called AMP kinase, which is known to regulate the desire for food. "We found that these drugs very potently stimulated this enzyme, which would explain why they cause an increase in appetite." Armed with this knowledge, Snyder explains, drug companies could work to alter the chemistry of atypical anti-psychotics so they don't have these effects on brain enzymes. He points to Zyprexa, the most effective and most widely used drug in this class. "Were this drug being developed today, it would be very easy for the drug company to custom design the drug."
Atypical anti-psychotics are widely used throughout the United States, Europe and Japan. Snyder's research is being published in the Proceedings of the National Academy of Sciences.

NEWS MEDIA UPDATE · SECOND CIRCUIT · Prior Restraints · Feb. 22, 2007
Wiki Web site no longer enjoined in Eli Lilly case
Other parties are still under an injunction to return confidential documents.
Feb. 22, 2007 · An anonymous Web poster who challenged a judge's order enjoining a wiki – a Web site that allows users to edit the content of a site – from posting a link to confidential documents about Eli Lilly's controversial drug Zyprexa has won his court battle.
A federal judge in New York ruled Feb. 13 that a previously issued preliminary injunction will no longer apply to the enjoined Web site.
However, U.S. District Judge Jack B. Weinstein ruled that the injunction still holds to some other parties, who must return and refrain from disseminating the documents.
Eli Lilly is being sued over Zyprexa in both federal and state courts by patients who say the pharmaceutical company deliberately downplayed the side effects of the drug, which is used to treat schizophrenia and bipolar disorder. The documents at the center of the controversy are materials about Zyprexa that Lilly submitted under seal during the discovery process.
Plaintiff's expert David Egilman had the documents, but was subject to a protective order to keep the documents confidential.
In his opinion, the judge accused New York Times reporter Alex Berenson of conspiring with Egilman and another attorney, James Gottstein, to obtain the documents. Gottstein got involved in a separate case in which he subpoenaed information about Zyprexa from Egilman, then sent copies to Berenson and more than a dozen others, including congressional staffers and mental health activists.
Times attorney George Freeman said in a statement that Weinstein's opinion "vastly overstates Alex's role in the release of the documents."
The Times published articles using the information contained in the confidential documents. Others posted the documents online and e-mailed the link to others. In response, Lilly asked the court for an injunction.
The court issued a preliminary injunction ordering most of the people who had received the documents directly from Gottstein to refrain from disseminating them, remove posted documents, and tell others to whom they had given the documents to do the same.
Lilly did not pursue an injunction against the Times or Berenson.
Web sites that posted or linked to the documents but did not receive them directly from Gottstein were also enjoined. In a Jan. 4 injunction, Weinstein wrote, "This temporary mandatory injunction further requires the removal of any such documents posted at any website."
The court specifically mentioned the wiki Web site zyprexa.pbwiki.com. An anonymous poster who uses the Web site, known in court papers as "John Doe," challenged the judge's order.
In the Feb. 13 permanent injunction, the judge lifted the injunction on the site zyprexa.pbwiki.com as well as other Web sites.
"Mindful of the role of the internet as a major modern tool of free speech, in the exercise of discretion the court refrains from permanently enjoining websites based on the insubstantial evidence of risk of irreparable harm," the judge wrote. "Restrictions on speech, even in the context of content neutrality, should be avoided if not essential to promoting an important government interest."
Fred von Lohmann, an attorney from the Electronic Frontier Foundation who represented John Doe, said in a press release, "This ruling makes it clear that Eli Lilly cannot invoke any court orders in its futile efforts to censor these documents off the Internet."
However, other parties are still enjoined in the permanent injunction. The judge ordered them to return all copies they have of the documents and prohibited further distribution of the documents. This means that they will not be able to post the documents to Web sites.
Most of the parties enjoined in the permanent injunction received the information firsthand from Gottstein. But at least one of them, David Oaks, received the information third hand.
The judge reasoned that the injunction was not a violation of the First Amendment, arguing that the documents were acquired unlawfully through the discovery process.
The judge distinguished the Zyprexa case from the noteworthy 1996 case Procter & Gamble v. Bankers Trust.
In Procter & Gamble, the Sixth Circuit held that an injunction prohibiting Business Week from publishing litigation filings that had been improperly sealed was unconstitutional.
The Zyprexa case is different, the judge opined, because the documents were discovery documents rather than litigation filings; the documents were never unsealed, unlike those in the Procter & Gamble case; and the enjoined parties are not members of the media.
Von Lohmann disagreed with the judge's interpretation of Procter & Gamble, arguing that the final injunction constituted an unconstitutional prior restraint.
"This is the first occasion to my knowledge where the court has granted a prior restraint against truthful information on a matter of public concern where the enjoined individuals were not involved in misappropriating the material in question," von Lohmann said.
(Zyprexa Litigation, Doe's Counsel: Fred von Lohmann, Electronic Frontier Foundation, San Francisco) -- CS
Related stories:
Times reporter refuses judge’s 'invitation' to testify (02/07/2007)
Judge's order preventing posting of documents challenged (01/19/2007)
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