Imagine this cinematic scenario: Superman, America's most famous
superhero, saves a helpless baby in a perilous situation. Flying
in at the last moment, our hero swoops up the helpless, adorable
baby and places him safely in his anxious mother's arms.
Scene Two: Trial lawyers sue
Superman, saying his rescue of the baby at the last minute caused
the baby's mother unnecessary emotional distress. Superman, they
argue, was negligent. He should have rescued the baby sooner.
Unbelievable? Not in Kansas
City, where trial lawyers are setting a new standard for the saying
"no good deed goes unpunished."
In the summer of 2001, Robert
Courtney, a Kansas City, Missouri pharmacist, was charged with
"tampering, misbranding and adulterating" Gemzol, a
cancer drug manufactured by Eli Lilly and Company. Courtney thought
that it would be more profitable if he bought smaller quantities
of the anti-cancer drug and diluted it to sell higher quantities.
Diluted, the drug is far less effective. Courtney's unsuspecting
customers - cancer patients - now were in peril. The drugs sold
by Courtney's Research Medical Tower Pharmacy reduced the potency
from 39 percent to less than one percent of the recommended prescription
Were it not for the intrepid
actions of Eli Lilly salesman Darryl Ashley, Courtney's reckless
and dangerous actions may have gone unnoticed until the death
counts started to mount. Fortunately, Ashley noticed a discrepancy
between the amounts of the cancer drug that the Research Medical
Tower Pharmacy was purchasing and the amount it was selling. As
the Indianapolis Star reports, Ashley "used his intuition
and his sense of responsibility to patients" to unravel the
terrible truth - the Research Medical Tower Pharmacy was selling
Gemzol to patients at dangerously low concentrations. After testing
showed the drugs were diluted, the FBI arrested Courtney, charging
him with "reckless disregard for and extreme indifference
to the risk that another person would be placed in danger of death
or bodily injury."
Eli Lilly might have thought
that its company and Darryl Ashley would receive accolades for
cracking the case and stopping this misuse of Gemzol. But it was
wrong. Instead of applause, it has been slapped with lawsuits
alleging that it knew that the illicit drug diluting was taking
place. Recognizing that Courtney's income stream has diminished
dramatically - FBI arrests tend to do that - trial lawyers have
advised the victims of Courtney's perfidy to go after Eli Lilly.
After all, if Eli Lilly didn't know - it should have. And Eli
Lilly has deep pockets.
While such logic makes sense
to trial lawyers, it exacts a cruel injustice by equating the
actions of the saints and the sinners.
Eli Lilly employee Darryl Ashley
was pivotal to Courtney's apprehension early on in his scheme.
And Eli Lilly's anti-cancer drug has provided hope and assistance
to thousands of seriously ill patients. But the real irony is
that Eli Lilly doesn't even sell this drug to pharmacies. It acts
as a wholesaler to retailers that in turn sell to pharmacies.
Therefore, there's no easy basis through which Eli Lilly can track
usage since there are no prescriptions to monitor.
But, apparently, the trial lawyers
don't care - the dollar signs from a potential judgment must just
be so dazzling they can't comprehend the injustice inherent in
lawsuits like these.
What lesson is taught when a
company employee decides to go the extra mile and catches a dangerous
criminal but instead of being recognized as a hero, actually becomes
the target of a lawsuit? What incentive does Eli Lilly have to
bring new miracle drugs to marketplace if it will be held responsible
for intentional criminal misuse? What does it mean when the FBI
itself acknowledges the role that Eli Lilly and its star employee
Darryl Ashley played in discovering a "very serious public
safety issue?" The U.S. Attorney's office says that the "no.
1 priority is to identify the patients. We are beginning to go
through records now, but it's like looking for needles in haystacks."
Maybe the trial lawyers should sue the FBI and the U.S. Attorney,
too, since their efforts to investigate Courtney's vile actions
are reminiscent of Eli Lilly's.
There is no doubt many people
have been hurt by Courtney. No one denies them their day in court
and no one belittles their desire to see justice done. But what
is happening to Eli Lilly is a gross injustice. Eli Lilly and
salesman Darryl Ashley were on the patients' side. They did the
right thing. Unfortunately, it seems, in the world of trial lawyers,
no good deed goes unpunished.
Clark Kent, call your office.
Horace Cooper is a senior fellow
of The National Center for Public Policy Research, a Washington,
D.C. think tank. Comments may be sent to [email protected].