GSK Gag Dr David Healy - letter from Andy Vickery

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Vickery & Waldner, llp




ATTORNEYS AND COUNSELORS





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May 13, 2001





Honorable William C. Beaman

United States Magistrate Judge

P.O. Box 268

Cheyenne, Wyoming 82003-0268

FAX to 307-772-2898



Re: Civil No. 00-CV-025D; Tobin and Schell v. SmithKline Beecham

United States District Court, District of Wyoming

Report on Contact and Heads Up Regarding Foreign Journalists



Dear Judge Beaman:



Please forgive the informality of this letter communication. However, it has been prompted by a phone conversation between myself and Mr. Zvoleff1 late Friday afternoon, and is sent in anticipation of a request by SKB on Monday morning for a phone conference with the Court, at which time it is my understanding that SKB will ask the Court to broaden its oral gag order to include a prohibition against a citizen of the United Kingdom talking to British and Canadian journalists about issues of intentional importance, which also are extremely germane to his own career. Before that conversation takes place, I would like the Court to be aware of the background, and of our perspectives. I would also like to report to the Court on my own compliance with the Court’s Order, in a manner which, I hope, will de-emphasize rather than intensify publicity about the trial of this specific case.



As the Court is aware, the question of SSRI induced violence and suicide has, from time to time, generated significant journalistic interest. Over the last year, that interest has increased. Both the Boston Globe and the Indianapolis Star have run series of articles. The Guardian and other papers in the UK have also run a series of stories. The BBC did an excellent radio documentary, and television stories have also run on 20/20 and elsewhere. A specific 60 Minutes segment focusing on the Miller case is slated to run sometime in the future (although I do not now believe that it will air before or during this trial).



As one of the very few lawyers who are litigating these cases against the SSRI manufacturers, I have been frequently contacted by media representatives. Because one of my clients’ goals is to educate the public and protect other families from similar tragedies, because I personally believe that there is a small minority of vulnerable patients who are at increased risk of violence and suicide as a result of these drugs, and because I am an unabashed and unapologetic advocate for First Amendment rights, I have generally cooperated with media representatives regarding these matters. My partner and I also make certain public documents available on our website, www.justiceseekers.com. 2



As the Court might well expect, with over $7 billion in annual sales at stake, the SSRI manufacturers have generally done everything within their power to discourage publicity, to “pooh-pooh” plaintiffs’ allegations and to decry the opinions of folks like David Healy as “junk science”, in public as well as in the courtroom. On one occasion, i.e. in the Miller case, they sought court intervention in the form of a “gag order”. A copy of Judge Vratil’s order denying Pfizer’s motion for such a “presumptively unconstitutional” order is attached to this letter.



With the exception of the forthcoming trial of this case, one of the most newsworthy events in recent months has been the public revelation that David Healy lost a prestigious job in Toronto because of his outspoken stance on these issues and his participation as an expert witness on behalf of victim/families. It has been front page news in Toronto within the last month, and, as the Court well knows, a Canadian news documentary on “academic freedom”, focusing specifically on the Healy case, is under production. Other news stories are being written about this matter, and it is entirely possible that comments given by me before this Court’s Order will be quoted in those stories.



SKB will file its motion in limine on Monday morning, seeking to exclude any reference in this trial to Dr. Healy’s loss of job in Toronto. I have discussed the matter thoroughly with local counsel, Mr. Fitzgerald, and he and I both believe that, once the Court sees our reply on Tuesday or Wednesday (when due), you will understand and appreciate why these matters are extremely relevant to the trial of this case.



In the meantime, we all have a case to try, and the Court has made its position regarding public comments by officers of the Court abundantly clear. In light of your Order, in as nice a way as humanly possible, I canceled my scheduled interview with the Canadian television crew. I did not tell them that the Court had issued a “gag order” because, in my experience, saying something like that to a member of the Fourth Estate is like tossing bloody meat into shark infested waters.3



Protection of First Amendment rights was one of my main responsibilities as a lawyer for the Secretary of the Army in the mid-70's, and I frequently wrote that, although military men have such rights, the exercise of those rights may be reasonably restricted as to “time, place and manner”. As an officer of this Court, I accept the Court’s imposition of such restrictions on me and my comments as the Court deems appropriate.



Yesterday morning I received a telephone call from a man who identified himself as a London reporter. He asked me a couple of times about the status of the Tobin trial and other pending Paxil cases, and, other than telling him that the pleadings were a matter of public record and the case was going to trial on May 21st, I simply responded that I had chosen to focus my energies on the trial and would have no public comments to make about the case until after the verdict. After that call was put through, I advised my staff to screen all calls, and, if they come from journalists interested in SSRI matters to tell them that I will have no public comments on these cases until the Tobin verdict.



Yesterday afternoon Mr. Zvoleff advised me that SKB officials in London had received a media inquiry there. Presumably it came from the same journalist who called my office. There are a number of media angles and interests, separate and apart from the trial of this case. For example, there is a particular interest in Paxil in the UK because (1) it is the best selling SSRI in the UK, (2) it is produced by a British company, (3) there is considerable evidence tending to indicate that it causes dependence (always a big thing for the Brits I am told), and (4) the most outspoken critic of the SSRI oligopoly, Dr. Healy, is a prominent member of the British psychopharmacologic community.



Another issue of journalistic interest in the UK is the fact that SKB’s former director of safety, Dr. Ian Hudson, who will testify via deposition in this case, is now a government regulator. Mr. Zvoleff expressed concern that, perhaps, this call came as a result of some action on Dr. Healy’s part. He indicated that SKB would seek an order from this Court on Monday, extending its “gag” restrictions to Dr. Healy.



Although we would have grave reservations about the constitutionality of any gag order which extended beyond the parties and their counsel, we will, of course, comply with any instructions the Court gives us, including an instruction to advise a British subject, designated as a witness in this case, from discussing these matters in public. However, for the record, we believe that it would be, not only inappropriate, but also unconstitutional, for the Court to enjoin the free speech rights of an Irish citizen, living in Wales, and talking to Canadian or London journalists about matters of public interest, inter alia, in Toronto. As Judge Vratil noted in the Miller opinion, there is little reason to believe that news articles in foreign countries will pollute the jury pool in Cheyenne. And there are less restrictive means of dealing with that issue.



I hope that this letter will put some of these matters into perspective for the Court. I will be available for a conference call at anytime on Monday that the Court deems appropriate.



Respectfully,





Andy Vickery



Enclosure as stated



cc:



Charles F. Preuss, Esq.

Vern Zvoleff, Esq.

Preuss Shanagher Zvoleff & Zimmer

225 Bush Street, 15th Floor

San Francisco, California 94104

FAX to (415) 397-1735



Thomas G. Gorman, Esq.

Ms. Misha Westby

Hirst & Applegate, PC

1720 Carey Avenue, Suite 200

PO Box 1083

Cheyenne, Wy 82003-1083

FAX to 307-632-4999



James E. Fitzgerald, Esq.

2108 Warren Ave.

Cheyenne, Wyoming 82001

FAX to 307-635-2391