Legal Battle Over Controversial Prescription Drug Zyprexa
San Francisco - The Electronic Frontier Foundation (EFF) today defended the First Amendment rights of a citizen-journalist to link from a public "wiki" to electronic copies of damaging internal Eli Lilly documents relating to the controversial prescription drug Zyprexa.
At today's hearing, federal district Judge Jack B. Weinstein refused to change his order blocking publication of material that would "facilitate dissemination" of the Lilly documents. A further hearing on the issue is set for Tuesday, January 16.
EFF's client, an anonymous citizen-journalist, posted the links on the wiki located at http://zyprexa.pbwiki.com. Eli Lilly complained, and Judge Weinstein issued his order on January 4. EFF went to court today to challenge this order as an unconstitutional prior restraint on free speech in violation of the First Amendment and to ensure that the right of nonparties in the litigation to link to publicly important information remains protected.
"Preventing a citizen-journalist from posting links to important health information on a public wiki violates the First Amendment," said EFF Senior Staff Attorney Fred von Lohmann. "Eli Lilly's efforts to censor these documents off the Internet are particularly outrageous in light of the information reported by The New York Times, which suggests that doctors and patients who use Zyprexa need to know the information contained in those documents."
According to The New York Times reports, the Eli Lilly documents show that the company intentionally downplayed the drug's side effects, including weight gain, high blood sugar, and diabetes, and marketed the drug for "off-label" uses not approved by the Food and Drug Administration (FDA). The documents were leaked from the ongoing Zyprexa products liability lawsuit, where Weinstein is the presiding judge.
Copies of the leaked Eli Lilly documents have appeared on a variety of websites and other Internet sources. The links to the documents that were posted on the wiki at http://zyprexa.pbwiki.com were part of extensive, in-depth analysis from a number of citizen journalists. A wiki is a website that allows many users to collaborate on its content, creating a kind of simple database for collecting information -- in this case, about the controversy surrounding Zyprexa.
Zyprexa is Eli Lilly's best selling drug, used to treat schizophrenia and bipolar disorder. Last week, Eli Lilly agreed to pay up to $500 million to settle claims relating to Zyprexa. This latest settlement brings the total paid by Eli Lilly to resolve lawsuits involving Zyprexa to more than $1.2 billion.
For the full motion filed in the Zyprexa products liability litigation:
For the court's order of January 4:
Fred von Lohmann
Senior Intellectual Property Attorney
Electronic Frontier Foundation