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By Tom Perrotta
New York Law Journal
02-14-2007

A federal judge Tuesday rebuked an attorney, an expert witness and a reporter for The New York Times for violating a protective order in a mass-tort action concerning the health risks of Zyprexa, an anti-psychotic drug manufactured by Eli Lilly.

Eastern District of New York Judge Jack B. Weinstein, said the men -- Alaska attorney James Gottstein; Dr. David Egilman, an expert hired by plaintiffs; and Alex Berenson, of the Times -- had "conspired to obtain and publish documents in knowing violation of a court order not to do so, and that they executed the conspiracy using other people as their agents in crime."

The documents in question were among millions of internal e-mails and files given to attorneys representing 30,000 plaintiffs who sued Eli Lilly over Zyprexa, a schizophrenia drug that patients alleged caused obesity and diabetes. Most of the suits involving Zyprexa have been settled for a total of $750 million, according to reports.

The documents were covered by a protective order, and Weinstein said all three men knew about the order.

The judge alleged, based on testimony from Gottstein, that Berenson and Egilman had devised a way to circumvent the order: Have Gottstein subpoena Egilman for a case in Alaska, and then send the documents to Berenson for an exclusive story.

Berenson relied on the documents for several articles he wrote in December alleging that Lilly played down data that found Zyprexa increased the risk of obesity and diabetes in patients.

In a 78-page ruling Tuesday, Zyprexa Litigation, 07-CV-0504, Weinstein further described the actions of the men as "illegal," "stealing," a "brazen flouting" of his order and, in the case of Berenson, "reprehensible." He took occasion to quote from a 2004 version of the Times' handbook on ethical journalism: "Staff members must obey the law in pursuit of news."

But despite the strong words for Berenson, only Gottstein and Egilman were subject to the injunction the judge issued Tuesday to prevent further dissemination of the documents.

Weinstein also admitted that the court could no longer control the documents, now that various Web sites had posted them. He rescinded a prior injunction against five Web sites and said he was reluctant to restrain "fora of speech."

Eli Lilly did not seek an injunction against Berenson, nor is it seeking sanctions against him. It is seeking sanctions against Gottstein and Egilman, including criminal contempt against Egilman.

Nina M. Gussack, a partner at Pepper Hamilton in Philadelphia who represents Eli Lilly, said her client was "very pleased" with the ruling. Asked why the company did not seek an injunction or sanctions against Berenson, she said, "I believe the judge has really spoken on the issue. We share the view that the conduct was reprehensible."

In a statement, the Times said that because it had declined to allow Berenson to testify, the judge came to a conclusion that "vastly overstates Alex's role in the release of the documents."

The statement added: "We continue to believe that the articles we published were newsworthy and accurate and we stand by the reporting."

Stephen Gillers, a professor of legal ethics at New York University School of Law, said that while lawyers are constrained by ethics rules of their profession, journalists need only obey the law in reporting a story.

"But the bottom line is, there is no First Amendment right to violate a judge's order," he said.

Although Berenson might not face sanctions, Gillers said he might yet be called to testify about the case.

"It could come to pass that his testimony is sought in conjunction with any penalty against the other two," Gillers said. "He may not be a party to anything but he may be a witness."

At the time the articles were published, most of the suits involving Zyprexa had been settled.

But Berenson's articles shed light on internal documents and e-mails that suggested the company had, as he wrote, "engaged in a decade-long effort to play down the health risks of Zyprexa."

Weinstein has since ordered several parties to return the documents and has questioned Gottstein. Egilman declined to testify, citing his rights under the Fifth Amendment. Berenson declined an "invitation" to answer questions about the case; he was not subpoenaed.

According to the judge's ruling, Berenson was aware of the protective order and spoke to Egilman about a way to work around it, possibly via subpoena.

The judge said Berenson suggested that Egilman contact Gottstein, who runs the Law Project for Psychiatric Rights. Egilman and Gottstein spoke, and Gottstein later subpoenaed the documents and said he wanted to depose Egilman for an unrelated case in Alaska. (In a previous letter to the special master assigned to the case, dated Dec. 17, 2006, Gottstein recounted his conversation with Egilman, but said Egilman called him "out of the blue" and made no mention of Berenson; he spoke of Berenson's alleged connection in subsequent testimony.)

The judge said Egilman notified Eli Lilly of the initial subpoena, but not an amended, "forthwith" subpoena, obtained ex parte in Alaska, that asked Egilman to turn over the documents more quickly. He did so before Eli Lilly responded to the first subpoena in three business days.

Weinstein described the reason given for the second subpoena -- that Gottstein needed to study the documents before interviewing Egilman via telephone -- as a "subterfuge."

He also said such conduct could not be condoned by courts, even if the actions were done for what was perceived as a greater good.

"Even if one believes, as apparently did the conspirators, that their ends justified their means, courts may not ignore such illegal conduct without dangerously attenuating their power to conduct necessary litigation effectively on behalf of all the people," the judge wrote. "Such unprincipled revelation of sealed documents seriously compromises the ability of litigants to speak and reveal information candidly to each other; these illegalities impede private and peaceful resolution of disputes."