PsychRights: Third Party Payors De-Designation

PsychRights^®
Law Project for
Psychiatric Rights

The Zyprexa Papers:
Third Party Payors De-Designation

In Judge Weinstein's February 13, 2007, Memorandum, Final Judgment, Order & Injunction, he stated that instead of using the subpoena provision of ¶14 of Case Management Order No. 3 (CMO-3), Mr. Gottstein should have used the declassification procedure in ¶ 9. However, it turns out that exactly that procedure had been used approximately a year before Mr. Gottstein received the Zyprexa Papers, and substantively the same documents had automatically lost their protection under ¶9 of CMO-3. Since then, Judge Weinstein has allowed Eli Lilly to continue to keep them suppressed through protracted legal proceedings.

On November 7, 2005, in a related case known as the "Third Party Payors (TPP)," plaintiffs' counsel gave notice pursuant to ¶9 of CMO-3 that certain documents were not properly designated as confidential.
These documents "are of similar nature, and indeed, there is a substantial overlap in the documents" subject to the November 7, 2005, de-designation notice and the Zyprexa Papers released by Mr. Gottstein. See, Declaration of D. John McKay, ¶2. It is understood that substantively, there is essentially complete overlap.
This means many, if not most, and substantively all, of the Zyprexa Papers had already lost their confidential status under CMO-3 by the time of their release by Mr. Gottstein. To that extent, Mr. Gottstein could not have violated CMO-3 when he released them. This was brought to Judge Weinstein's attention in Mr. Gottstein's February 9, 2007, Brief, pages 6-7, but was not addressed by Judge Weinstein.
Instead, Judge Weinstein had ordered that that a decision on this issue would not be made until after the injunction proceedings and contempt proceedings, if any, had concluded.
This was all recently confirmed in a March 23, 2007, letter from the TPP counsel to Judge Weinstein.
On April 3, 2007, Judge Weinstein issued an Order, which seems to indicate he does not intend to rule on the issue of whether these documents had lost their protection under CMO-3 due to Lilly's failure to file the requisite motion within 45 days of November 7, 2005.
Starting at page 289 of a 294 page order mainly dealing with class certification, the Court ordered some 350 documents unsealed, many, if not most of them believed to be the same as the Zyprexa Papers. However the court stayed the unsealing for the special master to redact the documents "so as to avoid unnecessary embarrassment or damage to any party." As of February 6, 2009, it is believed the documents remain sealed.

That the Zyprexa Papers were not confidential at the time of their release is one of the issues raised in the appeal of Judge Weinstein's February 13, 2007, Memorandum, Final Judgment, Order & Injunction.

Much has been made of Mr. Gottstein's statement that he wanted to get the Zyprexa Documents out in a way that would make it impossible to get them back. See, page 49 of the January 16, 2007, Transcript. However, the situation described here vindicates his thinking on this. He anticipated that if he didn't get them out, Lilly might be able to prevent him from getting them out even though they had lost all protection. This is exactly what has happened for a year and a half as described here when the TPP plaintiffs followed exactly the procedure Judge Weinstein said should be followed.