Mixed Outcome on Eli Lilly’s Zyprexa Gag Bid
Judge says Internet documents fall outside injunctions’ reach
By Michael Muskal, Times Staff Writer
3:58 PM PST, February 13, 2007
A federal judge in New York gave websites a partial victory by acknowledging today that when documents are published on the Internet they take on a life of their own, an existence that cannot be reversed by a court.
Senior U.S. District Court Judge Jack B. Weinstein issued a mixed decision in the closely watched case involving documents relating to the drug Zyprexa. The case pitted opponents of the drug against its manufacturer, Eli Lilly & Co., and both sides claimed at least part of a victory.
——————————————————————————–
FOR THE RECORD:
Documents: This story stated that the Zyprexa documents were published on the Wikipedia website. In fact, the entry in Wikipedia provided a link to the documents, which were on another website. —
——————————————————————————–
The Brooklyn jurist ordered that the documents be returned to the proper officials and enjoined eight parties from further distributing the documents, which are part of civil liability cases. But Weinstein noted that the wave of modern communication made it all but impossible to extend a traditional legal remedy such as an injunction to the Internet.
“To extend the reach of the injunction further might involve the court in attempting to control a constantly expanding universe of those who might have, or will have, access by reason of the original breach,” Weinstein wrote.
“That such an amplified injunction could be enforced effectively is doubtful. Even if enforcement were possible, on policy grounds the risk of unlimited inhibitions on free speech should be avoided when practicable,” he said.
Fred von Lohmann, a staff attorney for the Electronic Frontier Foundation, a San Francisco-based group that works for digital rights, praised what he agreed was a split decision. The foundation represented an anonymous individual who was earlier barred by Weinstein from posting web links to the Zyprexa documents.
“My client is pleased because he is no longer part of the injunction,” Von Lohmann said in a telephone interview. “The bad news is that others still are restrained and that the judge didn’t decide this based on the 1st Amendment.”
Lilly also claimed victory, though the company didn’t know whether it would appeal. Weinstein delayed implementing the order for 10 days to allow an appeal.
“We are very pleased the judge reaffirmed the validity of the protective order so that the litigation can proceed according to the law,” Marni Lemons, a spokesperson for Lilly, said in a telephone interview. “The judge acknowledged that [the documents] got out in a reprehensible and illegal manner. Lilly certainly feels vindicated.”
But “there is a certain element of the genie being out of the bottle,” she added.
The case deals with documents relating to Zyprexa, also known as olanzapine, which is used to treat schizophrenia and bipolar disorder. The drug accounted for an estimated 28% of Eli Lilly & Co.’s $14 billion a year in revenue.
Critics have sued Lilly, contending that the company failed to adequately warn Zyprexa users that the drug could heighten the danger of weight gain and raise the level of blood sugar, possibly leading to diabetes. The company has denied that Zyprexa causes diabetes.
Lilly has announced that it had settled 18,000 lawsuits involving Zyprexa and would take a maximum charge of $500 million. In June 2005, the company agreed to pay about $700 million to settle 8,000 Zyprexa-related suits.
About 1,200 cases are still pending, Lemons said.
In such product liability litigation, the company is usually required to make internal documents available to the opposition lawyers. Lilly gave thousands of pages of e-mails, studies and research.
The documents, which were confidential by court order, were eventually given to several news organizations, including the New York Times. The drug company contends that the documents were selectively leaked to support the critics’ arguments.
The Times published stories based on the leaked documents, which the paper said showed that Lilly had tried for a decade to minimize the risks of taking Zyprexa.
In addition to the Times, the documents were published on a variety of websites, including Wikipedia.
On Dec. 18, Lilly obtained a temporary court order to get its documents back. The New York Times refused, but other Web links were ordered shut down.
Weinstein was asked to give the websites the broadest constitutional protection, but the jurist stopped well short of that and kept his ruling narrow. “No newspaper or website is directed to do anything or to refrain from doing anything,” he said.
mailto:michael.muskal@latimes.com
