The Zyprexa Chronicles: Lawyers File Arguments On Zyprexa Documents

Last week, several of the parties to a federal court order pertaining to the release of the Zyprexa documents offered US District Court Judge Jack Weinstein their final briefs. In each the parties argue that they've done nothing wrong and that the documents, now that they are essentially in the public domain, should remain publicly available. Highlights are posted below.

Writing for MindFreedom, the Alliance for Human Research Protection and others, Fred von Lohmann of the Electronic Frontier Foundation argues:

"Eli Lilly's request to suppress public discourse about this important public health issue cannot be squared with the First Amendment."

Ted Chabasinski, for MindFreedom, makes a public interest argument and then drops this:

"[F]or most institutionalized psychiatric patients, there is no choice whether to take such toxic drugs as Zyprexa. More is needed to protect these people than some words on a package insert that they will never see....One protection could be an aroused public opinion. Another is the necessity of criminal prosecutions of those drug company leaders who promote their products by lying about and hiding the true effects of these drugs. But if the courts allow drug companies to keep their criminal activities secret, it makes it much more difficult to protect their victims."

Interestingly, John McKay, an Alaska attorney representing James Gottstein (yet another Alaska attorney who allegedly initially made the Zyprexa documents available to the New York Times) in a declaration he filed noted just how many legal resources Lilly has at work on this case and the larger class action settlement of 2005: 22 lawyers at Pepper Hamilton in Philadelphia and a few other law firms elsewhere. And they ain't no slackers neither:

"In my personal experience, counsel for Lilly in the Zyprexa matter work at all hours, and all days of the week, as they deem necessary. When they have wanted something from me or my client, I have had frequent, and insistent communications. (I would hasten to add that Lilly’s counsel have been cordial, professional, and generally responsive.) For example, in the first week I was involved in this case, I received over a dozen e-mails from one Lilly lawyer over four days....These included e-mails sent by Lilly counsel to me at 1:29 am, 2:10 a.m., 3:00 am and 3:04 a.m., as well as all hours of the day and evening."

And, in a further development, last week several doctors and consumer groups including Consumers Union, Mental Health America and the US Psychiatric Rehabilitation Association filed a brief as intervenors in the case. They assert that the documents that have already been out in public do not contain trade secrets and, therefore, weren't truly sealable in the first place.

Lilly's time to reply was extended until today. I look forward to soon obtaining their filing and learning what their arguments are in favor of keeping the documents secret. Although the judge in the case, Jack Weinstein, is under no time clock, one assumes he'll rule fairly quickly. And that whomever loses will be off to a court of appeals.

Stay tuned.