Lilly files to dismiss suits

Wednesday, October 24, 2001

KANSAS CITY, Mo. -- Drug-maker Eli Lilly has filed motions to dismiss seven of the lawsuits that claim the company knew pharmacist Robert Courtney was diluting drugs but did nothing to stop him.

"We believe there are no valid legal complaints against the company arising out of this tragic situation," Eli Lilly spokeswoman Judy Kay Moore said Tuesday.

The company filed the seven motions to dismiss late Monday afternoon. Moore said Eli Lilly would respond to each of the other 47 complaints against it at another time.

Courtney is charged with diluting chemotherapy medicine for cancer patients to pocket hundreds of dollars per dose. He has pleaded innocent to 20 felony counts of altering the drugs Gemzar and Taxol, which Eli Lilly makes. Courtney is being held without bond. His trial is scheduled for Feb. 4.

154 lawsuits

A total of 154 civil lawsuits have been filed against Courtney. The 54 that also name Eli Lilly as a defendant claim the Indianapolis-based company knew about the dilutions in early 2000, but did nothing.

"In its papers Eli Lilly claims that there was no way for them to do anything. But they had every ability to do something because they knew about a problem," said attorney Michael Ketchmark, who represents plaintiffs in five of the cases Eli Lilly asked to have thrown out.

In its motions, the company claims the plaintiffs have shown no evidence that the company knew about the alleged dilutions. Eli Lilly also claims it did not have a legal duty to protect the plaintiffs from Courtney's allege actions.

"Requiring a pharmaceutical company to insure that pharmacists dispensing medication have not illegally or criminally tampered with pharmaceutical products is far beyond the reasonable purview, qualifications or legal authority of any pharmaceutical manufacturer or its sales staff," read one motion.

The company said its sales representative, Darryl Ashley, first noticed discrepancies between the amount of Gemzar Courtney ordered and how much he distributed in early 2000, but it was not clear that the data was accurate.

"If plaintiff's theory is adopted, pharmaceutical manufacturer would have unlimited liability. Every hunch, suspicion, conjecture, and in this case, non-suspicious would conceivably trigger an endless, unmanageable series of duties," the company said in court papers.

Eli Lilly said Ashley did not start suspecting Courtney might be diluting drugs until May 15, after meeting with nurses at Dr. Verda Hunter's office, who told him they had not seen common side effects of chemotherapy drugs in Hunter's patients.

Ketchmark said his office was preparing a response to the motions.

"Eli Lilly is apparently arguing that it should have a legal right to turn a blind eye to criminal conduct that it's aware of," he said.

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