Response to Paustenbach

Abstract

Dr. Paustenbach's letter begins with an ad hominem attack, "Given his (Dr. Egilman's) history in the courtroom, it seems that the editor would be especially cautious." 1 The citations for this sentence refer first to my release of previously secret documents and information on pharmaceutical giant Ely Lilly's marketing practices, which were causing deaths in elderly dementia patients. 2 The release of these documents resulted in three front-page New York Times stories and spurred a Justice Department investigation of Lilly's practices. 3-5 Dr. Paustenbach is not a physician and appears not to care that physicians' have an ethical obligation to release information that critically affects the public's health, even if it means risking prison or fines. As a result of my release of this information, Eli Lilly and company agreed to pay $1.415 billion to resolve allegations of off-label promotion of Zyprexa. The $615 million criminal fine was the largest individual corporate criminal fine in history; the civil settlement was $800 million. 6 Much more importantly, lives were saved. In the second case, Dr. Paustenbach cites misleading half-truths. Dr. Paustenbach omits the fact that on appeal, the Colorado Court of Appeals reversed the trial Judge's sanction against me. 7 Dr. Paustenbach also omitted the fact that the trial Judge's order resulted from illegal and unethical conduct by the defense lawyers in the case who had hacked my computer, downloaded corporate documents, and then falsely alleged in a motion to the trial Judge that I had released the documents in violation of a prior general "gag order" by the court. a Pursuant to my complaint the Texas Bar sanctioned the lawyer whose misconduct resulted in the original decision. aAlthough the court sanction based on this fabrication was reversed on appeal, 7 the sanction still impaired the ability of over 90 workers to recover damages because I was struck as an expert witness. a In addition, many workers were unable to file cases. 8 I do not believe this "courtroom history" is anything but ethical conduct on my part. Furthermore, it is certainly not related to my scientific qualifications.Complaint 1: Dr. Paustenbach states: "Kelsh did not fail to disclose that the information might be used in litigation." 1 He is partly correct-the authors refer to past activities rather than the work at hand-but I did not criticize this omission.My criticism was different. I said: "The project included an EGILMAN …technical strategy development, providing scientific advice, expert testimony, selection and preparation of expert witnesses, assistance in cross-examining opponent's expert witnesses." 41