Judges Delivers Mixed Decision on Formerly Secret Zyprexa Files
US District Court delivered a partial victory and a partial loss for the public right to know about Eli Lilly's documents regarding their psychiatric drug Zyprexa. [Update 33: 13 Feb. 2007 - 5 PM EST]
Jim Gottstein: Psychiatric survivor, attorney, founder of PsychRights and whistleblower on Elli Lilly fraudulent marking of Zyprexa.
Judge Jack Weinstein Issues a "Final Judgment" About Zyprexa Documents: Web Sites May Be Free to Distribute, But Some Individuals Are Enjoined From "Disseminating"
Jim Gottstein Permanently Enjoined From Disseminating Documents
BROOKLYN, NY: On 13 Feb. 2007, the US District Court issued a 78-page order that had good news and bad news for those concerned about the public health impacts of Zyprexa:
• Websites may become free to distribute "secret" Zyprexa files.
The judge ruled, "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. Restrictions on speech, even in the context of content-neutrality, should be avoided if not essential to promoting an important government interest. No website is enjoined from disseminating documents."
Further the judge wrote, "...it is unlikely that the court can now effectively enforce an injunction against the internet in its various manifestations, and it would constitute a dubious manifestation of public policy were it to attempt to do so. No internet site is enjoined."
Therefore, after a 10 day waiting period, pending potential appeal by Eli Lilly, web sites that did not receive the documents from Jim Gottstein may not be under any court order about the documents, and may apparently distribute them freely.
• The Zyprexa Eight: A few individuals may not disseminate
The following eight individuals are enjoined from disseminating the Zyprexa Files: " Judi Chamberlin, Dr. David Cohen, David Egilman, James Gottstein, David Oaks [MindFreedom Director], Vera Sharav [AHRP director], Eric Whalen, and Robert Whitaker."
• Gottstein & Egilman called "co-conspirators" and permanently enjoined
The judge was especially harsh in what he said about whistleblowing attorney Gottstein and the original source of the documents, Dr. David Egilman. Both, along with NY Times Berenson, were found by the judge to be "co-conspirators" who the judge considered to have harmed Eli Lilly by "stealing" their documents and "brazenly flouting" the court order. The judge permanently enjoined the lawyer and doctor from disseminating the Zyprexa files.
MindFreedom's attorney Ted Chabasinski had filed two legal briefs in U.S. District Court on behalf of MindFreedom: 1 Feb. 2007 and 6 Feb. 2007. Chabasinski had argued for MindFreedom's free speech on 16 and 17 Jan. 2007, during two days of court hearings about the public's right to know the contents of formerly-secret files about Eli Lilly's psychiatric drug Zyprexa.
MFI director David Oaks testified as the last witness in the court hearing, and he discusses the experience on the MindFreedom Blog.
The thousands of documents in the Zyprexa files prove that Eli Lilly executives knew that their psychiatric drug caused life-threatening metabolic problems such as severe weight gain and diabetes, but tried to keep this secret for a decade. The files also prove that Eli Lilly trained sales reps to mislead family doctors and other primary care physicians into prescribing the drug in ways never approved by the US Food & Drug Administration.
Zyprexa is one of the "neuroleptic" psychiatric drugs -- sometimes called "antipychotics" -- that is often administered against the clients' wishes using court orders without providing non-drug alternatives.
For a quick summary of this controversy, see an Overview of the "Secret Zyprexa Files" Controversy by John Ryan, chair of the MindFreedom Media Campaign.
Media Coverage of the Controversy
- The New York Times runs series about secret Eli Lilly Zyprexa files: Attorney Jim Gottstein (photo at top) originally leaked these documents to The NY Times journalist Alex Berenson and others resulting in more than a month of articles and an editorial (including five in a row and a front page article).
- 15 February 2007 - Eugene Register-Guard article on how judge names local activist David Oaks as part of permanent injunction on Zyprexa files.
- 8 February 2007 - LA Times runs commentary by a lawyer-ethicist about how Eli Lilly's obsession with secrecy about Zyprexa hazards harms the public interest: Secrecy's dangerous side effects.
- 28 January 2007 - The Register-Guard in Eugene, Oregon carried two articles about the Zyprexa controversy: Reconsidering psychiatric drugs profiles Zyprexa survivor Tracey Dumas and Advocates seek access to drug company documents which follows up on how Eli Lilly is targeting MindFreedom for censorship.
- 24 January 2007 - Journalist Philip Dawdy is one of the few who has said he is reading every page of the Zyprexa files that he can obtain. Here's one of his reports from his blog, "The Zyprexa Chronicles: "Good Selling!!!"
- 23 January 2007 - UK Times: "Eli Lilly was concerned by Zyprexa side-effects from 1998."
- 22 January 2007 - Hampshire Gazette-Times runs editorial "In Our Opinion: Eli Lilly's bitter medicine" critical of Eli Lilly seeking gag order to censor its critics, and supportive of activist Will Hall.
- 19 January 2007 - The Reporters Committee for Freedom of the Press (RCFP) reports on controversy: "Judge's order preventing posting of documents challenged."
- 18 January 2007 - "Leaking the Truth" by Valley Advocate; Easthampton, Mass,, USA spotlights how their local activist Will Hall has been named by Eli Lilly in an attempt to suppress their files about Zyprexa.
- 17 January 2007 - Is It News? David Snead Internet legal expert blogs about implications for web & wiki site owners.
15 January 2007 In "Documents Bourne by Winds of Free Speech," The New York Times reports that Eli Lilly's supposedly secret Zyprexa files are still readily available on the Internet, including on sites outside the USA. The Times article mentions that MindFreedom's web site one of those targeted by Eli Lilly for censorship.
- 10 January 2007 - The UK publication "The Register" covered news about how a wiki named in the court order was also ordered to remove links to the Zyprexa files.
- 9 January 2007 - Tech News reports about "Right to Link From Internet Wiki"
- 9 January 2007 - Information Week covers Electronic Frontier Foundation joining case.
Journalist Phillip Dawdy said he is reading every page of the secret Zyprexa files and reporting on the most outrageous violations he has found. Dawdy's web blog site is Furious Seasons. There is a blog "search" engine in the lower left hand corner to find his ongoing analyses of the Zyprexa controversy.
Journalist Evelyn Pringle is covering the controversy with a series of articles published by OpEdNews:
- 14 February 2007 - Zyprexa Postcards From the Edge
- 5 February 2007 - Nobody Buys Lilly's Innocence Routine About Zyprexa
- 1 February 2007 - Zyprexa Injury Clock Keeps Ticking Away
- 31 january 2007 - Zyprexa Judge Sends Invite to New York Times Reporter
- 25 January 2007 - Eli Lilly The Habitual Offender
- 15 January 2007 - Zyprexa Judge Decides Which Journalists Have First Amendment Rights
- 12 January 2007 - Public Has Right To Know Secrets Revealed In Zyprexa Documents
- 7 January 2007- Lilly's Legal Battle Over Zyprexa Documents Continues
- 4 January 2007 - Criminal Prosecution of Lilly Sought Over Zyprexa
Timeline on Eli Lilly's Secret Zyprexa Files
Details on the unfolding court case including many of the court documents can be found on PsychRights web site at http://www.psychrights.org.
Here are highlights of news events:
17 to 21 December 2006 - Attorney Jim Gottstein, founder of PsychRights, began the furor by
courageously making suppressed Zyprexa documents available to a number of journalists and others resulting in five straight days of coverage in the NY Times.
18 December 2006 - Eli Lilly sought and obtained its first court gag order, this one requiring Jim Gottstein to cease and desist from disseminating any of the files about Eli Lilly. The court also required Jim to save all copies of his email for possible examination by the courts. While Jim disputes the validity of the injunction against him to suppress the Eli Lilly files, he complies and asks everyone to return the documents as required by that first court order.
Lilly issued a "Dear Doctor" letter the same day to physicians who prescribe Zyprexa. In the letter Eli Lilly continuedtheir cover-up, claiming Zyprexa does not cause diabetes.
21 December 2006 - Jim Gottstein issues a certificate of compliance to the courts.
Last week of December -- A grassroots campaign began to successfully make these documents from Eli Lilly called "ZyprexaKills" widely available using multiple web sites, CD's, DVD's, e-mail (by breaking the files into pieces) and a sophisticated Internet privacy system called Tor created by the Electronic Freedom Foundation. It is estimated that thousands of individuals have downloaded or otherwise obtained the suppressed materials which in compressed form is said to be about 269 megs.
MindFreedom issued alerts notifying the public of this anonymous grassroots campaig, and how they could download the documents.
29 December 2006 - Eli Lilly expanded its list of targets in a second "temporary restraining order" naming several MindFreedom activists
including Eric Whalen. Eli Lilly apparently obtained some of the names for this second court gag order
from the "compliance certificate" by Gottstein in which he complied with Eli Lilly's first order to stop
disseminating the information.
Ted Chabasinksi, a human rights activist and psychiatric survivor on the MindFreedom board, commented, "I'm an attorney, and I think the reason Lilly is panicking is that these documents literally show a conspiracy to commit murder. People talk about how these documents show that Lilly committed fraud. They do. But more importantly, if someone deliberately does something that they know will cause the death of another person, they have committed a homicide -- murder. Lying about the effects of Zyprexa has led to the deaths of many people."
30 December 2006 - Eli Lilly tries to target web sites that directly offered downloads of their files. A copy of e-mail between Eli Lilly and MindFreedom member Eric Whalen (in which Eli Lilly mentions MindFreedom) is here. Eric said he complied with Eli Lilly's request. According to a reliable anonymous source, there are definitely other sites that are still available for download to this day.
"The genie is out of the bottle. But Eli Lilly is still paying their attorneys to try to cover-up evidence of their fraud," said David Oaks, director of MindFreedom International. "This is reminiscent of the way the Nixon administration tried to keep the Pentagon Papers secret even after the materials were in the hands of the NY Times."
2 January 2007 - If the Zyprexa documents are already so widely disseminated, then why is Eli Lilly still targeting critics? There may be something Eli Lilly fears worse than the approximately one billion dollar cash settlement Eli Lilly can afford: Mass publicity may mean public education and criminal prosecution of executive crimes. In a 2 Jan. 2007 letter to Judge Weinstein, MindFreedom attorney Ted Chabasinksi (photo on right) says this to the judge about Eli Lilly executives:
- "While the underlying case is civil, what these documents show is CRIMINAL behavior on the part of Lilly's executives. They have chosen a course of action, 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, I don't know what is."
3 January 2007 - Eli Lilly has claimed in the first two court hearings that it's not too late to keep their documents secret. In a transcript from the 3 January court hearing,
Eli Lilly's attorney told the judge, "The Internet is a very large
place, your Honor, but we can tell you that we see no evidence of
widespread dissemination." MindFreedom's attorney argues that
"thousands" of people already have the documents.
Since even the judge wondered if a court order to suppress these documents is "futile" Eli Lilly is apparently turning to a "fear factor" to target its critics.
4 January 2007 - Eli Lilly successfully adds MindFreedom's web site and several other organizations and names to a third Temporary Restraining Order. Judge Weinstein said he was taking "no position" about those who were not named in the court order who already have copies of the Eli Lilly files about Zyprexa, which may amount to thousands of people.
MindFreedom complies immediately and issues this disclaimer:
At the advice of MindFredom International's attorney Ted Chabasinski, MindFreedom is complying with the Temporary Restraining Order signed 4 Jan. 2007 by Judge Weinstein of U.S. District Court. MFI has not and is not disseminating Eli Lilly documents regarding its psychiatric drug Zyprexa. MindFreedom has never posted these documents on its web site. By this news alert, MindFreedom is providing a link to a copy of the 1/4/07 TRO to any and all who may have these documents. MFI is not posting information to websites to facilitate dissemination or downloading of Eli Lilly documents about Zyprexa.
In court documents and arguments, Eli Lilly attorneys named and quoted MindFreedom in correspondence and letters, including to Judge Weinstein. Even though the New York Times is known to have copies of the Zyprexa documents, and published information about the files to millions of people, Eli Lilly has never named The New York Times in any of its court filings. "This appears to be about Eli Lilly using its billions of dollars to try to intimidate grassroots critics," said MindFreedom director David Oaks.
"In compliance with the the court order, MindFreedom is not posting
information facilitating the dissemination of Eli Lilly documents on
our web site," said Director, David Oaks. "We never offered these
documents for download on our web site. We offer no links for download.
In court, Eli Lilly quoted from our web site about this fact to falsely
claim their secret files can still be kept secret. But the reality is
their documents are already widely disseminated to thousands and are
still available. Eli Lilly is trying to chill free speech by trying to
squash news coverage on the MindFreedom web site of details and scope
of the widespread dissemination of their documents."
"While MindFreedom is not encouraging any illegal activities, everyone is encouraged to challenge Eli Lilly's attempts at censorship by forwarding news alerts protected by the First Amendment both on and off the Internet," said Oaks. "Proving beyond any doubt that there is widespread dissemination of these Zyprexa documents may help end Eli Lilly's attempt to suppress free speech once and for all."
By coincidence, also on 4 January 2007 The New York Times reports that Eli Lilly recently settled 18,000 court cases about Zyprexa for up to $500 million, but argued that the court files ought to be kept sealed and secret. "Eli Lilly's decade of cover-up about Zyprexa inside doctors' offices and courtrooms continues to this day," said Mindfreedom director David Oaks, "But this time Eli Lilly wants to extend its cover-up into the court of public opinion. We applaud all who challenge Eli Lilly's pharma-censorship in nonviolent ways."
Eli Lilly also filed documents under the "Digital Millennium Copyright Act" to try to shut down a wiki, not owned by MindFreedom, that has been providing news and discussions about this controversy, even though copyright is irrelevant to this controversy: http://zyprexa.pbwiki.com.
9 January 2007 - An attorney from the Electronic Freedom Foundation representing an anonymous "John Doe" participant on the zyprexa.pbwiki.com web site joined the court battle. The wiki remained up. Fred von Lohmann, attorney for EFF, filed a Notice of Motion and Motion for Reconsideration with the court on behalf of an anonymous author on the wiki.
Chabasinski said, ""The new Electronic Freedom Frontier motion enlarges the original legal argument that to be named in the injunction the party must have a direct connection to the doctor who first provided the documents. All these people who have been named, beyond Jim, whatever they did, did not obtain the documents in violation of any court order. If the judge adopts the arguments of EFF, none of the names ought to be on the injunction. None have the connection the law requires. Several will be able to appear in court by teleconference this Tuesday."
12 January 2007 - Determining if there is widespread dissemination is an important
fact, because Eli Lilly recently claimed to the court, three times,
that they have successfully suppressed the spread on the Internet of
their documents about Zyprexa. Eli Lilly had told the judge several times that a
grassroots campaign to disseminate the documents on the web had "fallen
flat." In a Supplemental Brief
filed Electronic Frontier Foundation (EFF) said that Eli
Lilly "appears to have been incorrect." EFF says that two individuals
easily located and downloaded the supposedly secret Eli Lilly files,
one of them within 19 minutes.
16 and 17 January 2007 - Judge Weinstein holds two days of hearings where testimony is heard from Jim Gottstein, Vera Sherav, David Oaks and others. The hearing is closed and the judge sets a schedule to receive briefs from both sides over the next three weeks.
1 February 2007 - MindFreedom's attorney Ted Chabasinski filed a brief in U.S. District Court on behalf of MindFreedom, along with Judi Chamberlin and author Bob Whitaker.
7 February 2007 - MFI attorney Chabasinski filed a 2nd brief on behalf of MindFreedom.
13 February 2007 - A whistleblower from Food and Drug Administration calls upon Congress to investigate FDA handling of hazards related to Eli Lilly's psychiatric drug Zyprexa, reports a Reuters article.
13 February 2007 - US District Court Judge Weinstein issues 78-page "Final Judgment" on Zyprexa files controversy, available here as a PDF file.
3 April 2007 - Attorneys at Schiffrin Barroway Topaz & Kessler announce class action by shareholders against Eli Lilly fraud regarding Zyprexa in this forwarded news release.
History of Past Eli Lilly Zyprexa Abuse
August 2005 - Eli Lilly has a long history of cover-up, deception, and fraud involving deadly hazards related to their psychiatric drug Zyprexa. See Leonard Roy Frank's article in Street Spirit here.
Actions You May Take:
- Said Ted Chabasinski, "Since Lilly does business in almost all states, and since
people died as a result of Lilliy's behavior as evidenced by these
documents, if there were a courageous prosecutor somewhere who saw
these documents, conceivably Lilly's executives could go to jail." Please contact US state attorneys general, direct their attention to the NY Times articles and existence of the secret Zyprexa files, and ask for criminal prosecution of Eli Lilly executives. For a list of current Attorneys General see http://www.naag.org/attorneys_general.php
- You may join and open and public e-mail list, not sponsored by MFI, that is discussing this grassroots campaign: http://lists.acm.jhu.edu/mailman/listinfo/zyprexa-discuss
- Please spread the word about this controversy to all appropriate places on and off the Internet.
- You may sign up to receive occasional public e-mail news alerts from MindFreedom about this issue and campaigns for human rights and alternatives in the mental health system.