The Zyprexa Chronicles: Judge's Ruling On Zyprexa Documents Is Good, Bad And Ugly

As most of you know by now, yesterday US District Court Judge Jack Weinstein handed down his ruling in the Zyprexa documents case. It was a mixed decision--defending the rights of anyone who didn't illegally obtain the documents to publish them on a website, but backing Eli Lilly's claim that the court's seal had been illegally broken and that Lilly had been irreparably harmed, as well an enjoining innocent parties such as MindFreedom's David Oaks, who never laid a paw on the documents, from doing anything with them. And so on. A lot of legal analysis by people smarter than me is out there, so go here to see what wiser minds believe.

That said, I want to point out that I respect Judge Weinstein, who's enjoyed a storied career as a jurist and legal thinker. He was involved in Brown v. Board of Education and was the judge who basically created class action lawsuit procedures in his handling of the Agent Orange case back when. I think he made a good ruling in one respect, grossly screwed up in another, disrespected psych patients with some of his language, backed Eli Lilly in terms he shouldn't have--and, then, showed a complete lack of regard for how reporters operate in order to report the news to the public. Since I am a reporter, I have some thoughts about that, but will take them up in a moment.

The good bit was that the judge effectively declared that there was no way he could control the Internet and that any copies of the Zyprexa documents on the Web are not subject to his order (unless they were subject to his earlier injunction). Such as on this site.

"Prohibiting five of the internet’s millions of websites from posting the documents will not substantially lower the risk of harm posed to Lilly. Websites are primarily fora for speech. Limiting the fora available to would-be disseminators by such an infinitesimal percentage would be a fruitless exercise of the court’s equitable power....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."

Thanks, Your Honor. Much obliged.

But here's one bit of legal thinking that troubles me:

"The harm faced by Lilly is amplified by the fact that the protected documents which respondents seek to disseminate are segments of a large body of information, whose selective and out-of-context disclosure may lead to confusion in the patient community and undeserved reputational harm –– 'what appears damning may, in context after difficult proof, be shown to be neutral or even favorable to the defendant.'"

I am not sure what reputational harm the judge is talking about. As a reporter, I have had real live psychiatrists tell me that Zyprexa is the worst of all the atypical antipsychotics when it comes to bad effects on patients' bodies. They have also told me that Lilly has never squared up with them about that fact. In fact, to read these documents as a whole, it is clear that Lilly knew--and knows--full well that it enjoys a poor reputation amongst psychiatrists and other doctors for the way it markets its products, for how its sales reps will chase docs down the hall to get a sale (having been a pharma rep myself once, I smile at that one), and for how they responded without compassion when faced with news of untoward side effects of their drugs. It was blame the patient and blame the underlying illness, but don't blame the drug. I have read documents that indicate Lilly was congratulating itself internally for eventually improving its image somewhat amongst docs. They had marketing surveys to back this up as well.

So what reputation are you talking about, Judge Weinstein?

Second, as a patient myself, I am staggered that such a smart judge would write "out-of-context disclosure may lead to confusion in the patient community." What patient community would that be? People locked up in state hospitals, little kids being given Zyprexa, old ladies being given Zyprexa, high functioning bipolars being given Zyprexa? Apparently, the judge's notion of the patient community was shaped in the 1960s when President Lyndon Baines Johnson appointed him to the federal bench and anyone diagnosed with a mental illness was supposed to be locked away or coddled to death by their families or the state. For the most part, Your Honor, those days are long, long gone. And what would be the problem with patients having complete information about the drugs they take and how the company that makes said drugs has behaved, conducted research and marketed its products?

It's not clear to me that the Judge believes in a free market of ideas unless those ideas come from the utterances of either Big Pharma, the FDA or astroturfing groups such as NAMI. What is clear to me is that the patient community is going to hear a lot more about what's in these documents. Then they can make up their own minds. The truth is out there.

Finally, I take considerable umbrage at the Judge's characterization of New York Times reporter Alex Berenson. The Judge found that Berenson committed a "conspiracy" to get the documents into his hands, report on them and relay the news to the public. He also called Berenson's behavior "reprehensible." According to the Bloomberg wire service, Lucy Dalglish, executive director of Reporters Committee for Freedom of the Press, called the judge's order "troubling."

"'Any time you have a federal judge finding that a reporter participated in a conspiracy, that's a frightening notion,' she said."

More like maddening. So here's the deal: Berenson was not subject to any part of the Judge's seal on the Zyprexa documents and, though he apparently knew of the seal, he was not obligated to abide by it. Why? Because a federal judge is part of the government. The government is, last time I checked the First Amendment, not allowed to take any actions to abridge a free press. That means if someone wants to drop some documents on a reporter at the Times, the town Crier or me (oh, and it's happened), then the reporter's job is to get the documents and report the truth, regardless of what any branch of the government might think about it.

We are mad dogs like that. Give us some tasty documents--the Pentagon Papers, say--and off we go to tell the public what their government is up to, what Big Pharma is doing and so on. Sometimes, the public doesn't like what we dig up. Sometimes, the government doesn't either. Big Business never likes the results. Bummer. I can assure you that if the press took a month off, the public would be crying for us to come back in two days at twice the pay. The government probably would be, too. The way reporters work is a good deal for the public. We get paid like school teachers, think like lawyers and detectives, fight like Marines where necessary and write like...oh, nevermind.

If I had been in Berenson's shoes (and I have been with other sorts of documents), I would have done exactly the same thing.

In a way, I suppose I am.

Oh, a Times attorney, George Freeman, said:

"For the reasons set forth in our letter responding to Judge Weinstein’s invitation, we declined to testify voluntarily about our newsgathering methods. Unfortunately, that resulted in an opinion which vastly overstates Alex’s role in the release of the documents. We continue to believe that the articles we published were newsworthy and accurate, and we stand by them."

Newsworthy? yes. Accurate? Has anyone heard Eli Lilly dispute the facts in these documents?

Eli Lilly spokeswoman Marni Lemons told the paper:

"Our adversaries carefully selected the documents to tell a story that they wanted to tell. These cherry-picked documents in no way reflect the strategies or activities of Eli Lilly & Company. Lilly feels vindicated because the judge issued an injunction that prohibits future wrongdoing by those who took the law into their own hands."

Cherry-picked documents in no way reflect the strategies or activities of Eli Lilly? So, Ms. Lemons, what I reported on yesterday--that your company was talking about potentially downplaying glucose increases noted in studies used to approve Zyprexa for long-term use in bipolar disorder--was based on these documents and it sure looks to me like your employees were strategizing all over the Lilly email system. I contacted your press office on Monday and asked them to respond to several questions about that document. Your people never responded. I know I am a mere blogger these days, but since the Judge seems to be OK with Internet-based media, feel free to respond at any time. Maybe we can also talk about Traci Johnson.

The same goes for you people at the FDA. Stop telling me to file FOIAs in order to get basic public information that affects millions of people that should already be freely available on your website.

Don't worry. The patient community can handle the truth.

Posted by Philip Dawdy at February 14, 2007 12:01 AM
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