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News for the week of 02-14-2007

Judge Rules Drug Documents Must Be Returned to Eli Lilly
The New York Times, 2-14-07

Editor's Notes:

After running a front page series of articles bashing Eli Lilly's drug Zyprexa—based on selective information provided by plaintiffs' attorneys—the New York Times notes (buried, in Section C, page 7) that a federal district judge has ordered the documents be returned to the company because their disclosure violated a confidentiality agreement.

In the 78–page decision, Judge Jack B. Weinstein of Federal District Court ordered Dr. David Egilman, a special expert for the plaintiffs, and James B. Gottstein, a lawyer in Alaska, to return the documents to Lilly.

A New York Times reporter, Alex Berenson, was given a copy of the documents, which showed that Lilly executives had kept information from doctors about Zyprexa's links to obesity and higher blood sugar, a claim Lilly has denied. He wrote front–page articles based on the information.

Eli Lilly has now paid $1.2 billion to settle more than 28,000 cases from individuals who contended that they developed diabetes or other diseases from taking Zyprexa.

In the ruling, Judge Weinstein said Mr. Berenson obtained the documents after he discussed with Dr. Egilman ways to circumvent a protective order. Mr. Berenson put Dr. Egilman in touch with Mr. Gottstein, the judge said, so that they might "employ a pretense to subpoena the documents." According to Judge Weinstein, the documents were sent to Mr. Gottstein via an expedited subpoena, which Lilly was unaware of. Mr. Gottstein then sent the papers to Mr. Berenson and others.

No other news organizations received the documents, the judge said, because Mr. Berenson told Mr. Gottstein that if the material was not delivered exclusively to him, the newspaper would not publish an article.

Mr. Berenson did not appear at an earlier hearing on the matter, where he was invited to testify. George Freeman, a lawyer for The New York Times Company, said that as a matter of "long–held principle," the company believed it would be "inappropriate for any of our journalists voluntarily to testify about newsgathering methods."

The question is not whether there are serious issues to be raised about Zyprexa—they are being raised in a court of law, and the drug is tightly regulated by the FDA.

It is highly disturbing, however, that—no matter how you paint this picture—the Times allowed itself to be the vehicle for the selective leaking of documents from a source (a doctor in the employ of a plaintiff's attorney) that it knew to be highly biased. Unfortunately, this process happens all too often in the media, skewing public debate over important public policy issues.

Adding insult to injury in this case, the Times now refuses to let its reporter testify about exactly what his agreement with the plaintiff's sources was. If a company, or a government agency, engaged in this kind of selective leaking and subsequent stonewalling, the Times would excoriate them for it—and with good reason.

This is definitely a matter that the Times' public Ombudsman should look into.

[permanent link]



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