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Lilly's legal strategy
disarmed Prozac lawyers
Secret deals,
hardball tactics limited drugmaker's liability for top-selling
antidepressant.
By Jeff
Swiatek
The
Indianapolis Star
Saturday,
April 22, 2000
Eli Lilly and Co. has all but staved off
a product-liability crisis that could have crippled the
company.
Just 5 1/2 years ago, the Indianapolis drugmaker faced a
barrage of more than 150 U.S. lawsuits over its best-selling
antidepressant, Prozac.
Today, fewer than 10 cases
remain.
Even opposing attorneys give grudging respect to Lilly for
defusing what one of its executives called "a deadly serious" threat to
the company and its star drug.
"It's a stunning example of
corporate management of litigation. It kind of came unfrayed a little bit,
but it was largely successful," said Andy Vickery, a Houston trial lawyer
who's pursued 14 Prozac lawsuits against Lilly.
In an era of
spectacular judgments in product-liability cases, from cigarettes to
breast implants, Lilly's success in limiting damage from Prozac claims is
a corporate coup that's gone little-noticed.
"I think our legal
department did a superb job. The dog that doesn't bite sometimes escapes
attention," said Mitchell E. Daniels Jr., Lilly senior vice president for
corporate strategy and policy.
Which isn't to say that the
decadelong battle over Prozac in dozens of county and federal courts has
been waged without controversy over tactics.
Critics charge Lilly
became adept at lawsuit-quashing through aggressive and sometimes
unethical legal tactics. They earned the rebuke of three courts, spurred
at least three separate lawsuits and gave rise to charges of trial-fixing,
conspiracy and document-hiding.
That's not the way Lilly sees
it.
The company credits its courtroom defense of Prozac to a legal
strategy that's been vigorous but fair, and says science also was on its
side.
In the past five years, plaintiffs' attorneys have dropped
lawsuits in droves as they realized medical evidence didn't support their
claims that Prozac causes violent behavior and suicidal feelings, said
Lilly's director of public relations, Edward A. West.
At the same
time, Daniels notes, Lilly fought off trial attorneys who jumped into
Prozac litigation like it was "a gold rush."
"Most of them hoped we
would cut and run, pay them something. We didn't do that," he
said.
What Lilly did do was combine hardball legal tactics with a
classic carrot-and-stick legal strategy, according to a four-month
Indianapolis Star review of court documents, plus interviews with lawyers
and others.
The carrot: payouts by Lilly estimated to be over $50
million to quietly settle more than 30 of those Prozac lawsuits.
The stick: a policy of blaming patients for any violent acts they
committed on Prozac, while working to get other lawsuits dismissed,
dropped or bottled up in court.
Lilly's Prozac defense also
benefited from divisions among opposing trial lawyers, who couldn't act in
any concerted way, squabbled among themselves and even sued one another.
Some mistrust among plaintiffs' lawyers arose from the fact that
two of the leading Prozac trial lawyers during most of the 1990s were
members of the Church of Scientology, the sect that has waged a
well-financed crusade against Prozac and other psychiatric
drugs.
The story of Prozac litigation "would be a great movie.
About intrigue and all kinds of stuff," said Richard Zitrin, who co-wrote
a 1999 book on legal ethics, The Moral Compass of the American
Lawyer.
RELATIVELY TRIVIAL
Estimated $50 million a
small price to pay
Controversial though Lilly's Prozac legal
strategy has been, it's tough to fault the results.
Not only has
Lilly managed to get most Prozac cases dropped or dismissed, it has won
jury verdicts in the only two Prozac civil cases to come to
trial.
As for the settlement payouts, by most measures they've come
cheap. Lilly has never divulged how much money it has paid to plaintiffs
and their lawyers, but the total runs over $50 million, according to court
documents and other reliable evidence reviewed by The Indianapolis
Star.
Compare that to potential product-liability claims that hung
over Prozac in the mid-1990s of perhaps $500 million to $1 billion, said
Bob Kirby, health care analyst for the Edward Jones investment firm of St.
Louis.
Or perhaps much more.
American Home Products Corp.
offered $3.75 billion last year to settle lawsuits over its fen-phen diet
pills, which it yanked from the market in 1997 over health
concerns.
The settlement payments by Lilly also pale in comparison
to the revenue Prozac generates: some $7 million a day, or about 26
percent of total company sales last year.
Lilly's Daniels terms the
settlement payments "relatively trivial."
"The cost of lost product
sales was massively more . . . as patients were frightened away" from
using Prozac by the negative publicity spawned by the lawsuits, he
said.
Today, Prozac liability warrants only a brief mention in
Lilly's latest annual report. The fine-print note reassures shareholders
that "the company has accrued for its estimated exposure" to Prozac
lawsuits.
MUM'S THE WORD
Plaintiffs won't comment
about their settlement
There's one other key part of Lilly's
Prozac legal strategy: keeping quiet about it.
"They don't want the
whole world to know they are paying out money on these," said Indianapolis
attorney Vernon J. Petri, who settled a Prozac lawsuit in January that was
especially touchy for Lilly.
The lawsuit was filed in 1998 by a
former Lilly marketing assistant, Patricia M. Roberts, who helped sell
Prozac. Roberts charged that after she took Prozac herself, she suffered
from suicidal ideas, confusion and debilitating headaches. The problems
drove her to seek psychiatric treatment at Methodist Hospital in
Indianapolis.
"I just dared them to go to court on this one," Petri
said. "She just knows too much."
Petri never got the
chance.
Lilly settled with Roberts, and the court dismissed the
case against Lilly four months ago.
"They were smart to settle this
one," said Petri, who, like his client, won't comment on the
terms.
For this story, Lilly officials opened up more than usual,
after West initially said, "We're not going to go into those sort of
things. We feel these are old issues."
West went on to say Lilly
has settled Prozac lawsuits "always for business reasons and never because
we thought the product was responsible."
Daniels said he didn't
appreciate The Star writing about Prozac litigation, even if the outcome
does favor Lilly.
"I'll grant you," he said, "it is a success
story."
PRETRIAL MANEUVERS
Texas case was favored
by attorneys suing Lilly
It's a story that began with one of
the most horrific of shooting sprees.
In 1989, Joseph Wesbecker
walked into the Standard Gravure printing plant in Louisville, Ky., shot
seven co-workers to death and wounded 12 others, and then turned the gun
on himself.
A year later, Leonard Finz, a flamboyant ex-New York
state judge, filed suit for 28 of Wesbecker's victims and their family
members. The lawsuit blamed Lilly for the shootings because Wesbecker was
taking Prozac when he carried out his rampage.
At the time, Prozac
had been on the market only two years. Lawsuits such as Finz's began
popping up all over the country, spurred by a few studies and much
anecdotal evidence linking Prozac to violent acts or suicidal
thoughts.
Lilly may have opened the door to the litigation by
refusing to put an explicit warning on Prozac's U.S. label about the
drug's alleged potential to cause violent behavior and suicidal
feelings.
The trial lawyers thought they had the evidence and legal
wherewithal to "take Lilly down," as Dallas trial lawyer Paul L. Smith
candidly put it to one reporter.
Smith would later stand accused of
doing just the opposite, with one lawsuit calling him "Lilly's
puppet."
It was Smith who led the early charge against Lilly in
1992-93.
While Finz moved slowly on the Wesbecker case and finally
withdrew altogether, Smith was winning pretrial motions against Lilly on a
Prozac case in Texas.
"He was ahead of other lawyers as far as
combat with Lilly was concerned," said Houston lawyer Vickery.
At
the time, lawyers for plaintiffs and Lilly were plotting over which Prozac
lawsuit to try to nudge to trial.
The strategy on first-to-trial
was critical for each side. The first jury verdict in any multistate
product-liability case often sets a precedent that influences all
litigation to follow.
Lilly wanted a case in which factors other
than Prozac seemed clearly at fault. Wesbecker fit the bill. The
gun-loving pressman had been a troubled soul who'd bragged about workplace
violence long before he took Prozac.
Trial lawyers, on the other
hand, didn't like Wesbecker. They preferred Smith's case in
Texas.
Smith had sued Lilly on behalf of the family of a man named
Michael Biffle, who committed suicide six days after starting a
prescription for Prozac. No other drugs were found in his body, and
Biffle's doctor was ready to testify that he wasn't suicidal before taking
Prozac.
In April 1993, Smith wrote to fellow Prozac trial lawyers,
urging them to help him move Biffle to trial first and get Wesbecker
delayed.
"That case is the weaker case," Smith wrote of Wesbecker.
If tried first, he warned, "we are going to be hard pressed to
prevail."
Other lawyers agreed.
"We were all pushing that
case (Biffle)," said Los Angeles attorney Skip Murgatroyd. "Everything was
going well in that case. Lilly was getting pounded."
SETTLEMENTS IN SECRET
Lawyer's lack of candor
helps to sow distrust
No one who's talking publicly knows what
happened in the summer of 1993 between Smith and Lilly. But this much is
certain:
By September 1993, Smith was no longer "pounding" Lilly in
the Biffle case. He'd settled it, just five months after plugging Biffle
as the ideal lead-off case against Lilly.
The Biffle case, plus
another that Smith had in the same court, were likely the first
significant settlements by Lilly of Prozac lawsuits, said Houston attorney
Richard W. Ewing, who has tracked Prozac litigation for nine
years.
It's also clear that Lilly and Smith took pains to make sure
outsiders didn't find out about the settlements.
The two sides got
the Texas judge to agree to keep the two cases on his docket for 16 months
after they were settled, instead of dismissing them within weeks or a few
months as is normal.
The effect was significant. It made it seem
like Smith and Lilly still had a "live controversy" in what actually were
settled cases, said Vickery. And it hid Lilly's willingness to settle
Prozac cases from dozens of other attorneys anxious to have Lilly ante up
in their cases.
Vickery, who's still pursuing Smith for breach of
fiduciary duty and other charges on behalf of a Prozac plaintiff,
estimated in a court document that Smith received more than $2 million in
fees in the two 1993 settlements with Lilly.
Murgatroyd said he and
other trial lawyers don't fault Smith for settling lawsuits for his
clients but felt betrayed because he didn't clue them
in.
Murgatroyd recalled asking Smith if he'd settled Biffle,
sometime after September 1993.
"He told me point-blank he did not,"
Murgatroyd said. "If Paul had said, 'Well, Skip, I just can't discuss that
case,' that would have allowed me to know what was going
on."
Smith, now in his mid-50s, is retired or semiretired from law
practice, living as a wealthy man in Dallas, say people who know him. He
did not respond to requests for an interview.
The Scientology issue
also seemed to create mistrust among trial lawyers. Murgatroyd is a
Scientologist, as was his partner at the same Los Angeles firm, the late
William Downey III, who handled early Prozac lawsuits.
Chicago
attorney Nancy Zettler remembered Downey trying to tape-record a meeting
of Prozac trial lawyers in the early 1990s. Other attorneys, knowing of
Downey's Scientology connection, told him to switch off the recorder, she
said.
Murgatroyd, who's less active in Prozac cases today, denies
any direct link between the litigation and Scientology.
"The church
never called me and asked, 'Skip, how are your cases going?' I'm not aware
of any involvement the church had in any of the
litigation."
SMITH STEPS UP
Lead counsel fills
void in Wesbecker case
Lilly's early secret settlements of
Prozac lawsuits kept plaintiffs' attorneys in the dark and off-balance.
Their position would soon get worse.
Late in 1993, Smith was named
lead counsel for the 75 federal Prozac lawsuits that were consolidated in
Indianapolis in the court of U.S. District Judge S. Hugh Dillin. Smith's
leading role in Prozac litigation earned him the support of fellow trial
lawyers for the job.
Essentially, that put Smith in charge of most
Prozac trial discovery in the nation. The work included subpoenaing Lilly
to get it to release internal documents and taking depositions from
company scientists and others.
Meanwhile, the Wesbecker case was
moving toward a March 1994 trial date in a Louisville courtroom. A month
before trial, however, the veteran Chicago lawyer who'd taken over the
case, Leonard Ring, died of heart failure.
Ring left behind a
knowledgeable associate, Zettler. But she was only two years out of law
school, unable to try a case of such import.
The natural choice to
step into the void was Smith.
He agreed to go for it.
The
man who had a secret working relationship with Lilly was about to try the
one Prozac case that he and other plaintiffs' attorneys didn't want to see
go to trial first.
"UNPRECEDENTED" DEAL
Drugmaker
hedges bet in midst of jury trial
The legal maneuverings set
the stage for one of the most controversial behind-the-scenes deals in a
U.S. courtroom.
It became a cornerstone of Lilly's strategy to
defend Prozac.
The deal came during the Wesbecker trial, which
started in September 1994 after a six-month delay received by
Smith.
It was a trial Lilly had to win, or risk costly settlements
of dozens or even hundreds of other Prozac lawsuits.
Lilly spent
enormous time and money in preparations. Its attorneys did nearly 400
depositions, or legal interviews. That amounted to "one of the most
detailed files ever amassed on a spree killer," wrote British journalist
John Cornwell, who covered the trial for the London Sunday Times Magazine
and later turned it into a book.
What continues to reverberate from
the Wesbecker trial, however, isn't the 11-week court fight, full of
sensational testimony and evidence.
It's the deal to essentially
buy off the plaintiffs with a huge cash payment, secretly negotiated even
as the trial went on.
The deal was "arguably unprecedented in a
Western court," wrote Cornwell.
Lilly "kind of raised the art of
settling cases secretly to a new high, or low," said Zitrin, who teaches
ethics at the University of San Francisco School of Law. "People's jaws
drop open when they hear that story. It's an outrageous example of abusing
what the (legal) system is supposed to be about."
Zitrin's book
uses the secret deal, many details of which are now known, as a case study
of unethical legal behavior.
Daniels calls the deal "a hedge"
against a jury decision that could have absolved Lilly but also left the
company partly liable for damages.
The deal, worked out during a
stay in the trial in December 1994, was so secret that it wasn't put in
writing until months later. Participants had to agree to not acknowledge
its existence even to the trial judge, John Potter of Jefferson County
Circuit Court.
EVIDENCE WITHELD
Jury never gets to
hear of deaths from Oraflex
Zitrin views the deal as an attempt
by Lilly to "create a situation where the trial was fixed." The deal
required Smith to withhold key negative evidence about Lilly from the jury
in the end stage of the trial.
The evidence concerned Lilly's 1985
guilty plea to 25 criminal counts for failing to tell the U.S. Food and
Drug Administration about deaths and illnesses of patients taking a Lilly
arthritis drug called Oraflex, plus related charges.
The deal also
required a bit more:
Smith and his clients weren't to seek punitive
damages or to appeal if Lilly won. And if the jury failed to return a
verdict, the deal was off.
After the delay, the two sides went back
to trial as if nothing had happened.
They quickly wrapped up their
arguments and, after five hours of deliberations, the jury voted 9-3 on
Dec. 12 to acquit Lilly and its best-selling drug of fault in Wesbecker's
slaughter.
Concluded the American Lawyer newspaper in a 1995
article: "Interviews with four jurors suggest that Lilly barely escaped
with a victory -- and that the omission of the Oraflex evidence may have
been key."
Later lawsuits have revealed details of the deal, but
the amount of money that changed hands has never been
divulged.
However, evidence obtained by The Star indicates Lilly
paid more than $20 million to Wesbecker plaintiffs and their attorneys
under the secret deal, along with about $5 million to the workers'
compensation carrier. The money to plaintiffs was paid out over three
years from 1995-1997.
Eye-popping though they were, the payments
may have been a bargain, considering Lilly officials got just what they
wanted: a jury acquittal in the first Prozac case to come to
trial.
"Lilly made the verdict the centerpiece of a national
publicity campaign, touting the safety of Prozac," said a 1997 ruling by
the 7th U.S. Circuit Court of Appeals.
The gains were immediate
for Lilly. Many pending Prozac cases disappeared, withdrawn by discouraged
attorneys convinced they couldn't whip Lilly in court.
Within two
years, the number of newly filed Prozac cases fell "almost to the point of
nonexistence," Lilly's chief in-house Prozac attorney, James T. Burns,
told an Oklahoma court later.
Daniels defends Lilly's conduct in
the trial as "100 percent ethical," though he thinks the deal backfired on
Lilly and was unneeded.
"I wish we had that one back. We were two
days from a slam-dunk, unequivocal, thunderous victory," he said. "But the
outside lawyers proposed (the deal) just out of prudence against a
surprising outcome, so we could limit our exposure."
The deal was
"distorted" by critics, he said.
Lilly went to the extent of giving
the Jefferson County Circuit Court affidavits from four leading legal
experts who defended the propriety of the deal.
One defender,
former U.S. Attorney General Griffin B. Bell, said that even though Smith
didn't present the Oraflex evidence in court, he properly used it on
behalf of his clients to "leverage" the secret deal from
Lilly.
ANGRY AFTERMATH
Judge makes attempt to
amend trial outcome
Proper or not, the secret deal provoked
outrage.
First to object was Judge Potter, a Harvard-educated
Louisville native who favored bow ties and homespun talk. On hearing
rumors of the secret deal in the early spring of 1995, the judge ordered
counsel from both sides to submit to questioning about the
terms.
Potter said he needed to know if the official judgment for
the Wesbecker trial, which ended with a jury's acquittal, should be
amended to dismissed "as settled."
Such a change, of course,
wouldn't allow Lilly to boast publicly about a jury verdict in its favor
for Prozac.
Lilly would have none of it. In the spring of 1995,
Lilly and Smith, now suddenly allies, filed an objection to block the
judge from inquiring into their deal. The case went all the way to the
Kentucky Supreme Court, which in 1996 found lawyers for Lilly and
plaintiffs showed "a serious lack of candor with the trial court and there
may have been deception, bad faith conduct, abuse of the judicial process
or perhaps even fraud."
Potter could go ahead with his hearing, the
Supreme Court ruled.
But it wasn't to be.
Faced with fully
disclosing the deal, Lilly officials had a change of heart. They agreed in
1997 that Potter could change the official judgment in the case to
dismissed "as settled."
That made the hearing unnecessary and ended
the dispute, ruled Kentucky Judge Edwin Schroering, who replaced Potter
when he stepped aside. Schroering's January 1998 ruling said Lilly and
other parties to the secret deal did "nothing improper."
By then,
losing the dispute over wording may hardly have mattered for
Lilly.
The drugmaker already had squeezed most of the public
relations value out of the 1994 jury verdict, and Prozac lawsuits were on
the wane.
Potter, who's still a judge in the same court, later
filed an ethics complaint against Smith with the Kentucky Bar Association.
The association took no disciplinary action against Smith, a spokeswoman
said.
Potter remains irked about Lilly's secret deal.
"Even
if you did it squeaky clean . . . it's still awful because it was trying
to turn the trial into a spin doctor contest."
LEGAL
ENTANGLEMENTS
Conflict charges leveled in handling of
cases
Lilly and Smith found themselves ensnared in an
ever-more-tangled legal web as word leaked out about the secret
deal.
Bound by the strict secrecy provision in the deal -- those
who as much as revealed its existence would lose their settlement money --
Smith had to pretend he had lost the trial and won no
settlement.
That required equivocating with people who claimed they
were entitled to a share of any settlement money. They included one of his
law associates and the estate of Ring, who'd worked on the Wesbecker case
up to his death.
Smith also faced conflict-of-interest charges by
continuing as lead counsel in the consolidated federal lawsuits against
Prozac. Smith didn't step down from that post until July
1995.
Those charges took on more weight when it later came out
that, even as Smith went head-to-head with Lilly during the Wesbecker
trial, he negotiated to settle the 14 or so other Prozac lawsuits he had
against Lilly.
At least two lawsuits filed against Smith accused
him of breaking his fiduciary duties to plaintiffs in the federal cases by
not revealing his deal-making with Lilly.
"Lilly . . . bought the
loyalty, silence and cooperation of the chief spokesman/lawyer for the
Prozac plaintiffs across the country," said a still-pending lawsuit filed
by Vickery against Smith and Lilly.
Smith "was on a very short
leash and . . . Lilly held the other end," Vickery wrote in the lawsuit,
filed by the family of a Texas rancher who shot himself while on
Prozac.
Moreover, having agreed to settle all of his other Prozac
cases, Smith had little personal incentive to do any work as lead counsel
for the dozens of other attorneys' federal cases, Vickery noted.
CENTER OF THE STORM
Smith grilled by lawyer in
suit over settlements
The amount Lilly paid Smith to
collectively settle his other cases hasn't been divulged.
However,
in a contentious deposition last year in a Dallas lawsuit, Smith was
grilled by an opposing attorney who asked at least seven times about a
Lilly offer of $25 million to settle Smith's 14 other lawsuits, not
including Wesbecker. Only parts of the confidential deposition transcript
are available in court files; but in his answers, Smith doesn't call the
$25 million figure inaccurate.
The Dallas lawsuit was filed in 1996
against Smith by his former law associate, Kimberly A. Stovall. She
charged he didn't pay her the share of Prozac settlement money she was
owed from Wesbecker and other cases.
Stovall finally settled her
long-running suit with Smith and Lilly last October. Neither she nor her
Houston attorneys would comment on the terms.
One document in the
case reveals without question the large sums of money at stake. Stovall
got Smith to belatedly pay her $119,379.81 in 1997. That apparently is her
2 percent to 5 percent share, plus interest, in the two Prozac Texas cases
Smith settled in 1993. Smith's letter to Stovall detailing the payment
doesn't say where the money came from.
Smith argued in the lawsuit
that he didn't owe Stovall money from later settlements, including the
Wesbecker case, because he fired her in January 1995 before money from
those settlements came in.
Zettler, who worked with Smith for about
a year, defends Smith's actions in the Prozac cases, calling him "one of
the most honorable people I know."
She accuses other plaintiffs'
attorneys of turning on Smith because "they got caught with their pants
down" when Smith withdrew as lead Prozac attorney in 1995.
"They
hadn't done jack on any of their cases. And Lilly people knew they didn't
know jack about their cases. To cover their a - - - - with their clients,
they had to get p - - - - - off at Paul," said Zettler, who still has one
Prozac case left, involving a man who leaped off a Chicago office
building.
As for charges by Vickery and others that Smith sold out
to Lilly and left fellow lawyers and their clients in the lurch, Zettler
doesn't buy it. "He (Vickery) is worse than Oliver Stone," she said. "He's
just trying to construct something out of this which wasn't
there."
If not for Smith pushing his Prozac lawsuits and taking
over the Wesbecker case, "there would be nothing as far Prozac litigation
goes. He carried the ball," Zettler said.
Smith himself told Judge
Dillin, during a tense hearing the day he resigned as lead counsel for the
federal cases, that he was disgusted with his colleagues.
"These
guys have stood here and let me invest my life, risk my law practice, risk
my family and risk my health to pursue this litigation . . . which none of
them would touch. And they come up here and start harping at
me."
Smith never requested repayment for his work as lead counsel
on the federal cases.
With his fees from the secret settlements
with Lilly running into the millions of dollars, say other trial
attorneys, he hardly needed to.
A LITIGATION
"MANAGER"
Court sanctions Lilly for leak of
testimony
The legal entanglements tightened as Lilly strove to
keep its settlements secret and plaintiffs' attorneys sued for disclosure
and a share of the Lilly loot.
Lilly had brought new counsel on
board: the Kansas City law firm of Shook, Hardy & Bacon, perhaps best
known for representing tobacco companies in their product-liability
fights.
Shook, Hardy specializes in "managing" complex litigation,
and Prozac lawsuits certainly provided fodder to work with.
In
early 1997, lawsuits turned up evidence that the Wesbecker deal required
Smith to return to Lilly 28 boxes of Prozac documents from the Wesbecker
trial.
Under terms agreed to by Lilly, most documents in the
Wesbecker case were to be shared with attorneys in the consolidated
federal cases. That saved both sides time, so separate discovery wouldn't
be needed in dozens of cases. Documents in the federal Prozac repository
were stored in Chicago, first in the garage and basement of Zettler's
house and later in a warehouse.
Smith returned the 28 boxes of
documents to Lilly in the summer of 1995, but Lilly didn't put them in the
federal repository until about 11/2 years later, Lilly attorney Burns
admitted in an Oklahoma Prozac lawsuit.
That left a long period of
time during which those thousands of pages of Prozac documents were
unavailable for plaintiffs' attorneys to use.
In a convoluted
explanation of what happened, which had even the judge confused, Burns
said the 28 boxes of documents were among those Lilly wasn't required to
put into the federal repository.
Nonetheless, he said, Lilly
decided to ship them there in November 1996, "when this whole thing became
an issue. Out of an abundance of caution we said, 'We are sending them
back.' "
No sanctions were imposed on Lilly for that.
But
Lilly was sanctioned in 1997 by U.S. District Judge Michael Burrage of the
Northern District of Oklahoma for violating a court order in the same
Prozac case, brought by Vickery.
The judge ruled Lilly "willfully
violated" an order not to disclose pretrial testimony by its own attorney,
Burns.
As a sanction, the judge unsealed the transcript, in which
Burns revealed some details of the secret deal in the Wesbecker
trial.
In a withering brief, Vickery described Lilly's attorneys
using fax and overnight mail to send the confidential transcript at "mach
speed" to Paul Smith, who wasn't entitled to see it because he wasn't part
of the lawsuit.
Vickery charged that Burns leaked his own sworn
testimony because he wanted to let Smith "sneak a peak" at what Burns had
to say about the secret deal. Smith was being interviewed by a Kentucky
court investigator on the same matter and Burns wanted the two men to get
their stories straight, Vickery said.
Lilly counsel Andrew See, a
partner at the Shook, Hardy firm, told the judge that sending the document
was "a mistake."
Lilly later settled the Oklahoma case out of
court.
A SECOND TRIAL
Hawaii case is heard after
plaintiffs won't settle
In the late 1990s, Lilly ran up against
a Prozac plaintiff who wouldn't settle.
It came in another case of
appalling killings by a Prozac user.
In 1993, Hawaii retiree
William Forsyth Sr. stabbed his wife, June, and then himself to death in
their home.
The Forsyths' children, Susan and William Forsyth Jr.,
sued Lilly in 1995, making the familiar charge that Prozac had turned
their father over an 11-day time span from a mild-mannered retiree into a
murderer.
What was unusual was the Forsyths' refusal to accept a
settlement from Lilly, though one certainly was dangled before them, said
William Forsyth Jr., a Hawaii Realtor.
"They have a lot of money,
let's put it that way," Forsyth said, when asked how much Lilly offered
him and his sister to drop their lawsuit.
The Forsyths, who are
financially well-off, didn't need settlement cash and didn't want it, he
said.
"We couldn't take money for that. I couldn't sleep at night,"
said Forsyth. "We just felt God would honor us if we hung in
there."
The Forsyths wanted to use the lawsuit as a way to go
public about what they saw as Prozac's potential to turn some people
violent. Forsyth even flew to Indianapolis and put fliers about his
concerns on the windshields of cars of Lilly
employees.
Surprisingly, he said, Lilly attorneys seemed to take
seriously the Forsyths' demand that the company warn doctors and patients
about what Forsyth called "the dark side" of Prozac, in return for the
Forsyths walking away from their suit.
Negotiations went on for
more than a year, Forsyth said.
But then the talks faltered, and
Forsyth now believes Lilly officials had no intention of ever agreeing to
issue any sort of warning that Prozac could cause suicidal thoughts or
violent acts.
"I feel they were totally leading us on. I think it
was tactical," he said.
The case went to trial in Hawaii on March 3
last year, with at least one eerie similarity to the Wesbecker
trial.
The lead attorney for the Forsyths, William Downey, was
felled by cancer and couldn't try the case. He died a few months later.
Vickery, an experienced trial attorney, took Downey's
place.
Vickery recycled much evidence from the Wesbecker case, with
new twists. His two expert witnesses included a British psychiatrist, Dr.
David Healy, who believes Lilly has failed to warn doctors and the public
of what he sees as Prozac's potentially devastating side effects for some
users.
Lilly wheeled out its own expert witnesses, as well as a
female "Lilly representative," who sat alongside Lilly's lawyers for the
whole trial but never spoke up. Murgatroyd, who assisted Vickery, called
the woman a "showpiece Polynesian" with "a great smile" who was apparently
strategically placed for display in the Hawaiian courtroom.
This
time, there was no secret deal. And Oraflex never came up. Vickery decided
not to tell the jury about Lilly's 14-year-old criminal guilt for the
withdrawn drug because it could create an appealable issue, in effect
tossing "a skunk in the jury box," he said. On April 7, the verdict came
down: The jury acquitted Lilly 11-0.
CONTROVERSY
REMAINS
Lilly steadfastly refuses to include warning
label
Where does that leave Prozac litigation?
Some
trial attorneys think Lilly will go on as before, trying to string out in
court the smattering of remaining cases and any new ones, and settling the
ticklish cases before they reach trial.
"Eventually someone is
going to win one. If I were Lilly, I'd get rid of the rest of the cases,"
Zettler said.
Murgatroyd is surprised that after a decade of
litigation, Lilly still hasn't put an explicit warning on Prozac's label
about suicidal thoughts and violent behavior.
"I think it
(litigation) is just going to continue until Lilly gets smart and makes
proper warnings. People are still killing themselves. It blows my mind
they keep paying out in death claims when all they have to do is
adequately warn."
Healy, the British psychiatrist, predicts an
increase in Prozac lawsuits because in his view, the medical evidence is
growing that Prozac can cause violent compulsions in some
patients.
"I think the evidence base has gotten a lot stronger now.
I think it will be easier now to make a case" that Prozac can harm, said
Healy, who said he may agree to be a witness for other Prozac
plaintiffs.
Daniels disagrees.
He said "mountains" of
medical studies that testify to Prozac's safety have now become
"Himalayas."
"There's no reason to expect" Prozac lawsuits will
increase, he said.
And as for Lilly putting an explicit warning
about suicide and violence on Prozac's package label, there's "no way,"
Daniels said. "It'd be inaccurate and it'd be misunderstood."
Even
so, the stakes are now decidedly lower for Lilly,
Prozac's
marketing life nears an end with the expiration of the principal U.S.
patent in 2003. As generic versions of the drug come on the market, the
drug's importance to Lilly will wane.
The course of litigation over
the world's most popular antidepressant may well be decided in
Hawaii.
Vickery has appealed the Forsyth verdict in U.S. District
Court in Hawaii. Among grounds for the appeal: lack of juror unanimity.
One juror told Vickery she "caved in" to "considerable pressure" from
other jurors to acquit Lilly and that "unpressured, (it) would have been
my vote to find in favor of the Forsyths."
Vickery also has filed a
new lawsuit in Hawaii.
It's on behalf of the parents of a boy named
Hugh Blowers, a depressed 17-year-old who hung himself in a bedroom at
home last year after taking Prozac for a week.
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