by Robert Ambrogi - Editor
BullsEye Newsletter: March 2007
Call it the case of the renegade expert. A federal judge's
78-page order enjoining an expert involved in Zyprexa mass-tort
litigation from releasing documents serves as a cautionary
tale for any lawyer operating under a judicial gag order.
U.S. District Judge Jack B. Weinstein issued the injunction Feb. 13 after an
expert retained by plaintiffs in the litigation against drug manufacturer Eli
Lilly & Company leaked documents concerning the anti-psychotic drug to the
news media and others.
Despite having agreed in writing to be bound by the protective order, the expert
conspired with a lawyer unconnected to the litigation to come up with a scheme
for providing the documents to a New York Times reporter and others,
Weinstein found.
The expert and the lawyer "deliberately thwarted a federal court's power
to effectively conduct civil litigation under the rule of law," the judge
said, and therefore "should be enjoined to deter further violations of this
and other courts' orders."
The Alaska Connection
The complex series of events leading up to the order began in October 2006, when
the Houston-based Lanier Law Firm, which represents plaintiffs in the litigation,
retained Dr. David Egilman to serve as a medical expert.
Earlier, Judge Weinstein, with the consent of the parties, ordered internal Lilly
documents sealed in what was designated Case Management Order No. 3, or CMO-3.
The order permitted parties to share confidential materials with their expert
witnesses, provided the experts agreed in writing to adhere to the order.
At the Lanier firm's request, Egilman signed the written agreement to adhere
to the protective order. Almost immediately, however, he began speaking with New
York Times reporter Alex Berenson about how he could provide him with certain
protected documents.
At Berenson's suggestion, Weinstein found, Egilman contacted James Gottstein,
a lawyer in Alaska unconnected to the Zyprexa litigation. Agreeing to help Egilman
release the documents, Gottstein intervened in an unrelated Alaska case and immediately
subpoenaed Egilman to appear for a telephonic deposition and to bring with him
all documents in his possession relating to 15 drugs, including Zyprexa.
Egilman notified Lilly of the subpoena but not the Lanier lawyers who retained
him. Before Lilly could respond, however, the Alaska lawyer obtained an ex
parte order amending the subpoena to direct Egilman to provide the documents
in advance of the deposition. Egilman informed neither Lilly nor Lanier of this
amended order. (Upon learning of these events, the Lanier firm immediately discharged
the expert.)
Plugging the Leak
On Dec. 13, Egilman began sending the documents to Gottstein electronically.
Lilly learned of this two days later, but by then the lawyer had already started
to forward them to Berenson and others. Lilly immediately informed the special
master overseeing discovery in the Zyprexa litigation. He ordered Gottstein to
return the documents. Gottstein replied that he had voluntarily stopped disseminating
the documents after having been contacted by Lilly.
On Dec. 17, a series of articles based on the documents began to appear in the New
York Times. Lilly and the Plaintiffs' Steering Committee jointly petitioned
the court for an injunction. After a preliminary injunction was issued on Dec.
29, Judge Weinstein initiated a hearing on a permanent injunction.
In his order following that hearing, Weinstein made the injunction permanent
against Egilman and Gottstein. He declined to enjoin any media outlet or Web
site.
Weinstein was particularly harsh in his discussion of the expert.
"Here, an expert hired by plaintiffs agreed in writing not
to distribute documents sealed by court order," he wrote. "He
was given access to those documents so that he could assist plaintiffs
– people suffering from serious disabilities, mental and
physical
– in pressing their civil suit against defendant, a major
pharmaceutical company."
In violation of his legal obligations, Weinstein wrote, the expert
"deliberately violated this court's protective order and published
sealed documents, intending that they be widely distributed."
The judge noted that the expert "took particular pains to
deny Lilly an opportunity to prevent the breach" by making
the documents public before Lilly could act.
"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,"
Weinstein 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."
The
full text of Judge Weinstein's order can be viewed in PDF format
here
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