Court Secrecy's Drug Connection

Secret settlements used to suppress information on public health and safety hazards.

In recent months new light has been shed on a connection between secrecy practices in the courts and the antidepressant Prozac, manufactured by Eli Lilly & Co. Like defective Firestone tires, infant furniture that can strangle babies, and clergy engaged in child abuse, this is yet another recent example of secret settlements that are used to suppress information on public health and safety hazards.

Eli Lilly Used Secrecy Agreements to Hide Prozac's Dangers

On January 1, 2005, the British Medical Journal published a news article stating that it had received documents from an anonymous sender that suggested a failure by Eli Lilly to disclose to the FDA adverse events from use of Prozac. The documents are said to have "gone missing" from a Kentucky case called Fentress v. Eli Lilly & Co., which arose from a murderous rampage by a man who was taking Prozac. The story was reported widely around the world, including by CNN, whose report stated that the papers were stamped "CONFIDENTIAL --- FENTRESS."¹

Company Also Hid Dangers of Other Drug

In defending the Fentress case, Lilly had claimed that it was always meticulous about reporting problems with its drugs to the FDA. However, plaintiffs' attorneys uncovered evidence that Lilly had failed to report to the FDA numerous adverse reactions to another of its drugs, Oraflex. Oraflex was withdrawn from the market in 1982 after patients taking the drug developed liver and kidney problems. Over 100 Oraflex patients died worldwide, more than 25 of them in the U.S. Lilly pleaded guilty in 1985 to 25 criminal counts of failing to inform the FDA of the adverse reactions to Oraflex.

A Promise to "Lose"

A court decision in the Fentress case indicates that Lilly's attorneys made a secret deal that they would settle the case if the plaintiff agreed not to attempt to introduce the Oraflex evidence at trial. The Oraflex evidence—critical to the plaintiffs' case—was in fact not introduced, and the jury brought back a verdict for Lilly. The deal, essentially, had the plaintiffs publicly "lose" the case but privately settle, the secret settlement thereby added credence to Lilly's public assertions that its drug was safe.

Judge Fought Company's Deal to Hide Evidence from Jury...

The trial judge in the Fentress case, John W. Potter, smelled a rat and quizzed all the attorneys as to whether there had been a settlement. They lied to the judge, saying that there was none. However, the judge insisted that the court's docket entry show the case "dismissed as settled."

... And Was Sued for His Trouble

For his trouble, Judge Potter was sued by Lilly. The Kentucky Supreme Court later exonerated him.²

1. Papers Indicate Firm Knew Possible Prozac Suicide Risk. See also Sara Schaefer-Muñoz, Eli Lilly Documents Are Linked to Prozac Concerns, Wall St. J., Dec. 31, 2004.

2. Potter v. Eli Lilly & Co., 926 S.W.2d 449 (Ky. 1996). The story of the Fentress case was featured prominently in a popular book on legal ethics: Richard A. Zitrin And Carol M. Langford, The Moral Compass of The American Lawyer 193-201 (Ballantine 1999). An article based on the book's coverage of the case, "Hide and Secrets in Louisville," is reprinted at www.lectlaw.com/filesh/zbk03.htm (last visited Feb, 23, 2005).

February 23, 2005