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."