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June 29, 2004|
By Glenn Singer, Business Writer
A Holy Cross Medical Group doctor, sued for allegedly participating in a marketing effort that included mailing the antidepressant Prozac to patients without their prior knowledge, asked a judge through his attorney on Monday to seal the transcript of a key deposition along with sworn statements from other doctors in the practice.
“The press does not have a First Amendment right to pretrial discovery,” attorney Michael Petruccelli told Broward Circuit Judge Robert Andrews, insisting that sealing the deposition by Dr. Ken Burke would help ensure a fair trial “free from media publicity.” A deposition can be used by either side at trial.
The 2002 case, brought on behalf of two Prozac recipients by attorney Gary Farmer of Weston, contends that Eli Lilly & Co., Walgreens Inc. and several doctors violated patients’ privacy rights when the companies and physicians collaborated to send a free month’s supply of once-a-week Prozac to patients who had been taking the medication daily.
Just like many drug companies do when a medication is about to lose patent protection, Lilly at the time was trying to prevent Prozac users from buying generic versions by switching them to a new, patent-protected Prozac.
Petruccelli and other lawyers for the defendants said they were concerned that Farmer would, by filing the depositions with the court, use publicity generated by news stories to draw other clients into the suit. Farmer denied that, adding that the defendants could point to only one newspaper article that appeared the day after he filed the first deposition, that of Dr. Lise Lambert from Holy Cross.
Media attorney Dana McElroy of Fort Lauderdale, representing the Sun-Sentinel, argued strongly against sealing the depositions, saying, “What the defendant seems to be wanting in this case is a secret trial. But the public is entitled to know what is happening.”
Judge Andrews seemed to concur, asking Petruccelli: “Assume there has been a lot of publicity. How have you been hurt?”
The defendants’ lawyer didn’t answer directly, saying, “I have no problem with the press coming to trial on this case. I would welcome that.”
Andrews did not indicate when he would issue his ruling.
Glenn Singer can be reached at email@example.com or 561-243-6612 .