Judge Says ‘NYT’ Reporter Conspired With Lawyer in Zyprexa Case

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A U.S. judge has stopped further disclosure of confidential documents that became the basis for a series of critical stories in The New York Times last year about the antipyschotic drug Zyprexa.

Ruling Tuesday in federal court, U.S. District Judge Jack B. Weinstein found that Times reporter Alex Berenson conspired with a lawyer, James Gottstein, to obtain and illegally distribute the internal documents from Eli Lilly and Co., the maker of Zyprexa. The judge had sealed the material while a settlement in a consumer lawsuit was pursued.

Though he labeled Berenson’s conduct “reprehensible,” the judge said his final order does not apply to the reporter.

Berenson’s articles said the drug maker had downplayed Zyprexa’s risks and marketed it for unapproved uses ? charges Lilly has denied. The documents also turned up on Web sites before the judge granted the company’s request for a preliminary injunction.

The reporter “was deeply involved” in a scheme to subvert the sealing order by having Gottstein subpoena the documents from Dr. David Egilman, an expert for the plaintiffs, the judge wrote while granting a permanent injunction.

The judge said his final order, though, also did not apply to the newspaper or Web sites.

“No newspaper or Web site is directed to do anything or to refrain from doing anything,” he wrote. “No person is being enjoined from expressing an opinion or writing about the documents.”

Instead, the injunction bars Gottstein, Egilman and six other people from further distributing copies of the documents. It also orders them to turn over any papers still in their possession to a special master overseeing evidence in the case.

Egilman’s attorney, Edward Hayes, said: The judge has “told us not to do certain things, and our response is, ‘We’re sorry, and we’ll never do it again.'”

In a statement, Gottstein insisted that his only concern was patient safety and that he never meant to defy the court.

“This was not a conspiracy to harm Eli Lilly,” he said.

Eli Lilly spokeswoman Marni Lemons said the company felt vindicated and hoped the ruling would put a stop to “those who took the law into their own hands.”

Earlier this month, Berenson declined to appear voluntarily in court for questioning on how he obtained the documents. A spokeswoman for the Times, Diane McNulty, said Tuesday’s decision “vastly overstates” his role.

“We continue to believe that the articles we published were newsworthy and accurate, and we stand by the reporting,” she said.

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