A drug manufacturer can't keep documents about the sleeping pill Halcion secret without proving that the publication of those documents would reveal vital company secrets, a U.S. District judge ruled Friday.
Ilo Marie Grundberg wanted the public to see 8,200 pages of Upjohn documents detailing reports of murders, attempted murders, threats of attacks, suicides and attempted suicides associated with Halcion use. Her attorneys asked the court to authorize the release of those documents.Grundberg shot and killed her 83-year-old mother, Lucille Coats, on June 19, 1988. Grundberg sued Upjohn for approximately $10 million, saying she killed her mother because she was on Halcion.
U.S. District Judge Thomas Greene previously sealed thousands of pages of Upjohn documents.
Upjohn wanted those documents to stay sealed. Upjohn attorney Stephen Scheve argued if the documents were made public the "lay media" would report on them - probably inaccurately - and damage Upjohn's chance to get a fair trial.
Scheve said documents Grundberg wanted to make public paint only a partial picture of Halcion, and the media was likely to reflect that partial picture, thus "poisoning the jury pool."
"Can't we take care of that by carefully screening the jury pool?" Greene asked.
Grundberg's attorneys say that the public and medical and pharmaceutical companies have an urgent need to know the contents of the 8,200 pages of Upjohn documents and must be given those documents "at the earliest possible moment." The documents will alert the public to the dangers of Halcion, they said.
The attorneys also say Upjohn defrauded the Food and Drug Administration and the public by withholding critical data on Halcion, submitting inaccurate summaries of the data to the FDA instead of the supporting research.
Grundberg's attorney, Steven W. Saccoccia, said Upjohn abused the court's protective order by throwing a blanket of secrecy over thousands of documents, including published articles not written by Upjohn.
Upjohn conceded it may have "goofed" by labeling already published articles as confidential.
Labeling published documents as confidential was no oversight, Saccoccia countered. "There is not a single piece of paper they have produced for us that does not bear the confidentiality designation," he said.
Upjohn contended that Grundberg's attorneys violated Utah standards of ethical conduct for attorneys that practice in the state by talking to the media and seeking to make the documents public.
"We learned early on that (Grundberg's attorneys) have established a relationship with the media," Scheve said. He cited information the attorneys sent to the Deseret News and Salt Lake Tribune, including a copy of the suit before it was filed.
Greene pointed out to Scheve that the preface to the standards of ethical conduct adopted by the Utah Supreme Court clearly stated those standards cannot be used as cause for action in court. Greene suggested Scheve make his complaints about professional conduct before the Utah State Bar.
Grundberg's attorneys noted that Upjohn people have also talked to the media, including comments on a national news show. But it was Upjohn's copyright efforts that angered Greene. He told Upjohn that its submission of sealed documents for copyright certification "after litigation has started and in the face of a protective order" is a decision he expects the company to justify later.
Upjohn also said the publication of the sealed documents would spark more complaints about adverse effects from Halcion. A study shows that if the public learns of adverse side effects associated with a drug, people are more likely to report those side effects, Scheve said. Complaints about Halcion doubled in the months after Grundberg was interviewed on a national news show, he said.
"We know media coverage causes more side effects," he said.
Upjohn failed to convince Greene. The company said that since the documents were already under protective order, Grundberg had the responsibility to prove why the order must be lifted. Greene disagreed. Noting that Upjohn had never been required to prove why the documents must remain confidential, he said the company must do so now.
"I'm telling you this court regards that as your burden. I only want to know if you want to try to shoulder that burden," Greene said.