TortsProf Blog

Editor: Christopher J. Robinette
Southwestern Law School

Tuesday, February 13, 2007

A Zyprexa Update

Some new documents of note are noted below.  More are available on the PsychRights website; I haven't, for example, gone through all of the battling proposed findings of fact.

  • MindFreedom et al.'s brief [PDF] opposing the extension of the injunction as to them;
  • David Egilman's brief [PDF] about...something.  There hasn't actually been a request to hold him in contempt or to otherwise sanction him that I've seen, though one is no doubt coming.  But he instead (and I think wisely) is challenging Lilly's proposed findings of fact that would, if adopted, prejudice his defense of the expected contempt motion. 

    Among other things, he argues that since the civil findings here would likely impact a criminal contempt proceeding against him, his decision to invoke his Fifth Amendment rights should not be used to create a negative inference (as it could in a civil setting).  He also contends that his silence should not be held against the third parties involved in the injunction setting.

    Probably the core issue is and will be what a "reasonable opportunity" meant in the CMO and whether Dr. Egilman provided Lilly with that opportunity to object to the production of documents.  The problem as I see it is the change in subpoena date - a change that Lilly was never notified of - and the (in my view reasonable) inference that the date was changed to prevent an objection from being made.  (As a reminder, the original subpoena for the documents had one date; the date was moved up substantially, but that new date was not given to Lilly.)

    And then he also argues that Lilly overdesignated documents (which looks probable from news coverage anyway) and that its potential violation of the CMO should prevent it from invoking its protections now.
  • The EFF's brief [PDF] on behalf of various third parties objecting to the extension of the injunction as to them.
  • Various third parties brief [PDF] seeking to intervene to challenge confidentiality and the Court's Order [PDF] denying that motion without prejudice, essentially delaying it until after the injunction matters are resolved.
  • Terrie Gottstein's opposition [PDF] to extension of the injunction as to her, contending among other things that an e-mail used by Lilly falls within the marital privilege.
  • Jim Gottstein's opposition [PDF] to extension of the injunction.  He argues, among other things, that the CMO should be voided as being far too easy to abuse through overdesignation of documents.  He also makes the argument that Lilly failed to establish that, even if the CMO were valid, that it was violated (much the same argument as Egilman presents).

    It also presents for the first time that I've seen an allegation that third-party payors challenged the confidentiality of various Zyprexa documents back in 2005, and that Lilly failed to timely respond, contending that the documents were made non-confidential then.  Lilly's reply brief (cited below) seems to deal with this allegation fairly convincingly; the parties involved continue to be dealing with that challenge and nobody involved in it contends that Lilly waived the challenge.

    He also presents his arguments that Alex Berenson's involvement was just good old-fashioned reporting, and that finding a case just to use to subpoena the documents was proper public interest litigation.
  • Lilly's reply brief.

Documents, Experts & Science, MDLs and Class Actions, Products Liability | Permalink

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