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Paula Joan Caplan's Authors Guild Blog

Big Pharma meets Big Diagnosis, Big Courts, and Big Psychiatric Hospitals

First published January 31, 2020, at https://www.madinamerica.com/2020/01/zyprexa-papers/

 

If you think the truth can set us free, and you care about harm done to suffering souls who seek help from the traditional mental health system, only to discover too often and too late that that system exponentially adds to their burdens, Jim Gottstein's blockbuster new book, The Zyprexa Papers, is essential reading. It should be required reading for every well-meaning friend or family member of someone who suffers emotionally, as well as for legislators who genuinely want to weed out corruption and harm.

 

The book is focused on the neuroleptic drug Zyprexa and two cases related to it — one in which Gottstein represented a client and one in which he became the accused — but importantly, it exemplifies problems throughout the systems of not only Big Pharma but also what could be called Big Diagnosis, Big Psychiatric Hospitals, and Big Mental Health-related Courts. It's a book about how the tsunami fed by the profit motive and the vast systems involved in the politics of mental health, including the so-called justice system, swamps what ought to be primary: the alleviation of emotional pain.

 

Gottstein's book is The Pentagon Papers of the traditional mental health system, because he exposes a mind-blowing number and variety of cold-blooded, calculating actions on the part of Eli Lilly in trying to hide what it knew to be the devastating effects of its hugely profitable Zyprexa, from its lies of both omission and commission about relevant data to what can only be called its persecution of Gottstein himself for trying to sound the alarm. Gottstein, a courageous and brilliant lawyer and tireless activist trying through strategic litigation to prevent people from being harmed by psychiatric drugs and electroshock through his nonprofit Law Project for Psychiatric Rights (PsychRights), also takes us day by day through his attempts to prevent one particular client, Bill Bigley (to whom the book is dedicated), from being involuntarily committed to a psychiatric facility and forcibly drugged. In doing so, he exposes the staggering number of ways the court system that handles such cases amounts way too frequently to a kind of Kangaroo Court, where the odds are so stacked against the person labeled mentally ill that it's almost inevitable they will be deprived of their rights. The hurdles the client and lawyer have to jump are so numerous and various that this part of The Zyprexa Papers will be a revelation to those who have not themselves been through it.

 

Where does Big Diagnosis come in? Without the hundreds of psychiatric categories in the Diagnostic and Statistical Manual of Mental Disorders (DSM), none of this could have happened, because giving a person even one DSM label — even one that sounds relatively innocuous — is what enables therapists, drug companies, and judges (not to mention others) to make a wide array of recommendations and even impose courses of action that they can call "treatment." And when the "treatments," including drugs, cause harm or fail to help, the labeled person's reports are easily ignored, minimized, or used as further "proof" that they are "mentally ill." Equally appalling is that calling psychiatric drugging, electroshock, involuntary commitment, and other intrusions "treatment" allows those who suggest, impose, or enforce them to escape culpability. In a lawsuit in which I was an expert witness, three therapists who nearly destroyed someone's life were not held in the least negligent, on the grounds that they had just been following the mental health system's standard of care.

 

The Zyprexa Papers is a hard book to put down, and it's so worth reading, because we need to know what goes on largely in secret, and as we read, we see clearly the many points where changes for the better must be made… and how each of us can help to change them.

 

Gottstein had had personal experience in the mental health system. In 1982, at age 29, he had become terribly disoriented from lack of sleep and as a result had been locked up in the Alaska Psychiatric Institute (API) — the very entity that had repeatedly hospitalized and forcibly drugged Bill Bigley. At API, Gottstein reports:

 

"I was told I would have to take mind-numbing Thorazine-like drugs for the rest of my life. When I told them I had graduated from Harvard Law School (which I had), I was considered delusional. Those who believed I was a lawyer said I would never practice law again. However, my mother, who was the Executive Director of the Alaska Mental Health Association, steered me to a terrific psychiatrist, Robert Alberts, who said that anyone who doesn't get enough sleep will become psychotic, and I just needed to learn how to keep from getting into trouble. … was lucky not to have been made into a permanent mental patient by the mental illness system. These experiences started my advocacy for people diagnosed with serious mental illness."

 

Gottstein describes having been inspired by Robert Whitaker's classic investigative book, Mad in America, which he describes as both "a terrific read" and "a litigation roadmap for challenging forced psychiatric drugging on the basis that it isn't in the patient's best interest." He explains that drugs like Zyprexa "have been marketed as 'antipsychotic'" when in fact what they do is "suppress people's brain activity so much they can no longer be much trouble—at least temporarily." For this reason, he uses the term "neuroleptic," which means "seize the brain" — it was "one of the first names given to this class of drugs, and is the most accurate description." To call them "antipsychotic," he says, is "marketing hype."

 

Readers discover the ghastly lengths to which Lilly, aiming solely to maximize its profits, went from the outset to conceal the fact that Zyprexa caused, among many other serious problems, high rates of diabetes, rapid and enormous weight gain (in some cases, more than 100 pounds after a year on the drug), and even death. How much money was at stake? In 2005, the year before the book's saga begins, Zyprexa's reported sales were $4.2 billion, with about two million people across the world taking the drug.

 

Gottstein describes his triple efforts, starting in 2006, to help one person protect his right to refuse psychiatric drugs, to help in other strategic litigation, and to publicize widely the truth about Zyprexa's dangers. The incriminating evidence about those dangers had been discovered by an expert witness for a number of plaintiffs in the 8,000-person, multi-district litigation who charged they were harmed by the drug, and Gottstein obtained that evidence by subpoenaing the expert for the documents to be used for Bill Bigley's case against forced drugging. In the multi-district litigation, the large number of lawsuits had been consolidated, and the documentation about Zyprexa's concealed dangers became subject to an order that they be kept secret. Fortunately, however, the information could be produced if it was subpoenaed for another court action and if Lilly was first given "notice and a reasonable opportunity to object."

 

The amount of time that "reasonable opportunity to object" required was unspecified, so when Gottstein subpoenaed the documents from the expert witness, Dr. David Egilman, whom he describes as a man of conscience, Egilman sent them to Gottstein not immediately but before Lilly objected. Egilman had told Gottstein he hoped Gottstein would subpoena him and then, after receiving Egilman's documentation, would turn it over to New York Times writer Alex Berenson for his reporting about Zyprexa. However, to Gottstein's personal detriment, when Egilman only showed Gottstein part of the entire secrecy order, he acknowledges that he "motored past that red flag" and relied on Egilman to indicate when he thought a "reasonable" amount of time had passed since Egilman had notified Lilly of Gottstein's subpoena and thus Gottstein was free to send the documents to Berenson, as well as to many others who would help disseminate the truth.

 

The interpretation of "reasonable" became a major weapon in what can legitimately be called Lilly's persecution of Gottstein for making the information public. On December 6, 2006, Egilman notified Lilly's top attorney that Gottstein had subpoenaed him for a deposition by telephone for December 20. On December 11, Gottstein sent Egilman an amended subpoena, because the original one had included the order for the doctor to bring his documents with him, but since the deposition was going to be by telephone, Gottstein needed the documents sent to him before the deposition. He asked Egilman to notify Lilly of the amendment, but Egilman did not do so. Egilman said that five days had passed since his notification to Lilly, and he believed that that constituted "reasonable" notice, so on December 12, he went ahead and uploaded the material to an internet domain Gottstein had created for that purpose. Gottstein had received a voicemail message from a Lilly lawyer the night before and had left a voicemail for him the next morning. In the meantime, as he said, "feeling Lilly's breath on my neck," he proceeded to give the Times reporter access to the documents, and he sent them in various ways to many other people.

 

Gottstein's courage in doing this is stunning. He knew that he could end up going to prison, given Lilly's power and money, but "thousands upon thousands of people had already been killed by the drug, and we [he and Egilman] were hoping to keep that from happening to thousands upon thousands more."

 

What followed showed both Lilly and the courts at their worst. Lilly's ability to bring in judges to try to intimidate Gottstein was astonishing. Readers will be alarmed to learn in the pages of The Zyprexa Papers how vulnerable truthtellers can be, even when their aim is utterly selfless and when they try to prevent massive harm like that which had already come to huge numbers of people. Lilly demanded that Gottstein not reveal the documents to anyone and that he immediately retrieve them from everyone to whom he had sent them and take them down from anywhere he had posted them. By then, some of his recipients had sent them on to still other people, and in various ways they had been further publicized. In fact, in an article Berenson wrote around that time, the following appeared: "Mr. Gottstein said yesterday that the information in the documents should be available to patients and doctors, as well as judges who oversee the hearings that are required before people can be forced to take psychiatric drugs. 'The courts should have this information before they order this stuff injected into people's unwilling bodies,' Mr. Gottstein said."

 

As media coverage about the matter increased, Lilly, clearly incensed, threatened Gottstein that he would lose his law license and that it would "seek sanctions" against him for having violated the secrecy order from that case that had been settled with the 8,000 plaintiffs. A court order included the instruction to him to "Preserve all documents, voice mails, e-mails, material and information relating to Dr. Egilman or any other efforts to obtain documents produced by Lilly." I recall that around that time, I had called Jim's office about some other matter and was stunned to hear his outgoing message, in which he instructed callers not to leave a message of any kind on his answering machine. It felt Orwellian.

 

The ways that Lilly and the courts conspired against Gottstein must be read to be believed. And it is poignant to read Gottstein kicking himself for the very human mistakes he made when called to testify under circumstances of extreme sleep deprivation, but these errors should never have justified the outcomes. Gottstein had spent vast amounts of money trying to defend himself and was facing even more legal fees beyond the huge ones he had already incurred. In addition, threats of losing his law license and contempt of court charges were hanging over his head. The story of why and how the case ended for him makes one rail at the so-called justice system and the overwhelming power of Big Pharma, as well as how they work together.

 

Gottstein speculates that the judges' decisions were due to their view that Gottstein flouted their authority by sending out the material covered by the secrecy order, and it looks to this reader as though they jumped at the chance to interpret or misinterpret anything in Gottstein's favor so as to allow them to protect Lilly. This impression is strengthened by the fact that vast numbers of the documents covered by the secrecy order had always been public knowledge, including media reports, yet all were subsumed in that order.

 

Bending over backward to understand the court's alarm about exposure of the documents, one might ask what benefit comes to the plaintiffs in settlements like the one that included the secrecy order. Gottstein tells us that the Zyprexa settlement with 8,000 victims averaged a little less than $90,000 per victim and says:

 

"This doesn't seem like a lot for giving someone diabetes, but it is even worse when you consider that the lawyers took 40% and then Medicaid and Medicare were reimbursed another 30%. At that point, even the approximately $27,000 individual victims received, on average, put those who were on Medicaid and disability over the asset limit for eligibility. This meant they had to spend the money from the settlement to treat their diabetes and otherwise spend it over the course of a year or two to maintain or get back their Medicaid and disability payments"

.

Furthermore, Gottstein writes, "judges are supposed to allow the secrecy only if it is in the public interest, but in practice, they don't. The secrecy greases the wheels of settlement as well as litigation, and judges want to have cases resolved and off their docket. … Normally, no one is representing the public interest." He continues:

I think it is fair to say by issuing the secrecy order the … Court was complicit with Lilly in hiding the great harm being done to people as a result of Zyprexa. If this information had become public earlier, thousands of additional lives could have been saved, and hundreds of thousands of people would probably not have taken Zyprexa.

 

Gottstein describes where the Court erred in considering the subpoena he issued and his release of the Zyprexa Papers:

 

"It felt I had violated its secrecy order, and never gave serious consideration to the possibility I had not. Protecting its authority was really the court's only consideration. It did not give fair consideration to PsychRights' legitimate interest in the Zyprexa Papers. It did not give fair consideration to the fact that PsychRights followed the secrecy order's rules in obtaining the Zyprexa Papers. … I had my independent and proper reasons for subpoenaing them, including alerting the public to the great harm caused by Zyprexa. … I believed I received them under the secrecy order's rules and once I had them in that way, they lost their secrecy."

 

The second story in the book, interwoven throughout with the Lilly case, is about the way that Bill Bigley, whom Gottstein brings to life with warmth and respect, experienced tragic losses that understandably made him sad. His deeply human reaction was then pathologized: He was diagnosed with psychiatric labels that formed the foundation for starting him on a cycle of involuntary hospitalizations that grew to number around 70 and of forced drugging that caused him so many problems that he understandably resisted those chemicals. All of this predictably led to his deterioration in many ways, and he began sometimes to act in ways that annoyed some people, but he was never violent. Gottstein writes: "In reality, it wasn't about Bill's quality of life at all but about reducing other people's annoyance with him."

 

In spite of this, the mental health system destroyed this man, whose suffering, like that of so many, led to diagnosis that was then used to justify depriving him of his rights on the utterly unsupported grounds that he must have an incurable chemical imbalance and needed "treatment." As Gottstein describes trying to help Bigley so many times, he shows point by point how the system in Alaska — typical of those across the U.S. — was used to order involuntary commitment and forced drugging was rigged against him.

 

The very fact that someone has been given any psychiatric label is used in a staggering variety of ways to deprive them of self-respect, dignity, self-confidence, employment, custody of their children, the right to make decisions about their medical and legal affairs, and even their lives. Just as Gottstein's accurate statement that he had graduated from Harvard Law School had been construed as evidence of his "mental illness," so when Bigley accurately stated that he had been quoted in the New York Times, that was construed as proof of his "psychiatric disorder." And as so often happens, Bigley's refusal of psychiatric drugs was alleged to be proof that he was too "ill" to know how to take care of himself.

 

Flagrantly ignoring proof of the harm caused by psychiatric drugs, the judge ordered that Bigley could be drugged against his will. The judge's "reasoning" belongs in Alice in Wonderland rather than a court order. Try to find the logic in what the judge held, as Gottstein cites it:

 

"The Court is willing to assume that past medications have damaged Bigley's brain. It is further willing to assume that additional brain damage will result if API is allowed to administer more psychotropics. But that does not end the analysis.

"The Court finds that the danger of additional (but uncertain) damage is outweighed by the positive benefits of the administration of medication and the emotional and behavioral problems that will escalate if Bigley is not medicated. Even if the medication shortens Bigley's lifespan, the Court would authorize the administration of the medication because Bigley is not well now and he is getting worse."

 

Given that Zyprexa and similar medications such as Risperdal have been shown to cause early death, Gottstein is reasonable in concluding: "I guess judges decide who shall live and who shall die all the time, although the death penalty is not even allowed against murderers in Alaska."

 

Bill Bigley's hearings were usually held in a room at the Alaska Psychiatric Institute rather than in a courtroom and were usually not open to the public, as most similar court proceedings are supposed to be in order to help ensure due process and protect the person's rights. When hearings are held within such hospitals, they tend to become Kafkaesque, throwing due process and legal procedures out the window, so that coercive orders are made in the absence of evidence that the criteria for coercion (danger to self or others, gravely disabled, least restrictive alternative) are met. Bill Bigley therefore wanted his hearings to take place in a real courtroom and to be public.

 

Anyone in danger of losing their human rights — or their life — through a court proceeding should have someone like Gottstein advocating for them, because he is a tireless advocate, knows the law inside out, and never loses sight of what is true, what is right, and what is humane in its respect for his clients' dignity. He uses a combination of legal principles and procedures with analysis of whether those principles hold water within legal traditions but also outside of those traditions. Not feeling constrained by precedent in court and practice in the mental health system, he is consistently creative and resourceful in trying to find solutions. For instance, pursuing the principle that the "least restrictive alternative" should be tried, and knowing that court orders in cases like Bigley's were usually based on consideration of only two alternatives — drug the person or don't drug them, period — he makes this commonsense, caring proposal that includes a third option:

 

"…when someone is having a meltdown, they can be approached and told, 'Listen, we can't have you doing these things, because of ______________ [e.g., you annoy people or you scare people], so if you don't calm down, we are going to have to inject you with Haldol or put you in restraints or seclusion (solitary confinement). Which would you prefer?' I think some people would prefer the restraints or seclusion over the drug, but I also think there is some chance simply giving them the choice would allow them to calm down."

 

Of course, since this proposal is based on respect for the person and the assumption that they can use reason, consider options, and have agency, it's not the kind of thing that judges tend to accept. Their dual concerns — that they will be blamed if they don't order hospitalization and/or drugs and "something happens," and their tendency to believe the claims of the powerful, well-funded entities like Big Pharma and Big Psychiatric Hospitals — get in the way.

 

As for the psychiatric hospital's representatives, as Gottstein writes, what their continual pushing for forced drugging "demonstrates clearly is API was incapable of treating people without using drugs. This was and remains basically true of psychiatric 'hospitals' around the country."

 

Gottstein wrote this book in part to try to prescribe a roadmap for approaching these kinds of cases, which, he said in an email message to me, includes the need "to treat these cases like the big-stakes litigation they are." His compelling descriptions of his clashes with Lilly and his advocacy for Bigley make clear how high are the stakes and how dangerous to the brave souls who engage in the struggles. But as he poignantly notes, Zyprexa "is still being used on hundreds of thousands of people, including being forced on many. The same is true of the other neuroleptics." Indeed, even many who advocate for victims of the traditional mental health system in their writings and films legitimize and even valorize former DSM-IV Task Force head Allen Frances, despite knowing that he and two colleagues earned just under a million dollars for creating the fraudulent foundation that allowed Johnson & Johnson subsidiary Janssen Pharmaceuticals to deceptively market the dangerous neuroleptic drug Risperdal for an astonishing variety of "conditions" in people from childhood to old age. (For more on this, see my articles "Diagnosisgate: Conflict of Interest at the Top of the Psychiatric Apparatus" and "Diagnosisgate: A Major Media Blackout Mystery.")

 

Gottstein believes, finally, that:

 

"inadequate legal representation is the lynch pin for the massive harm being done to people through psychiatry. If people were being represented adequately the current system would be unable to lock the legions of people up and drug them against their will and would have to find some other way to deal with people diagnosed with mental illness and being disturbing. If PsychRights had the resources to employ just two or three lawyers full time in Anchorage, Alaska for such representations and funds for expert witnesses, I believe PsychRights could break the system and force provision of different approaches that have been shown to work and help people get through the problems they are having."

 

The book's Kindle edition is available for order starting today, January 31. The paperback is now also available for ordering on Amazon.

 

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