Drugmaker learned about dilutions as far back as 1998

KANSAS CITY, Mo. -- Drugmaker Eli Lilly and Co. learned about Robert R. Courtney's drug-dilution scheme as far back as 1998, lawyers for the pharmacist's victims claim in a letter to their clients.

Lilly discovered that Courtney was selling more cancer drugs to doctors than he was buying from Lilly when the company's sales representative complained that he was not getting appropriate commission payments, The Kansas City Star reported in a copyrighted story for its Sunday editions.

Lilly supplied drugs to Courtney, who then sold them to doctors.

The drugmaker asked a company called IMS Health, which records drug sales by pharmacists to doctors nationwide and sells the data to drug companies, to look into where Courtney was getting the chemotherapy drugs he was selling, according to the letter.

"Eli Lilly's internal documents show that this investigation, which was done in early 1999, failed to reveal any legitimate source for the drugs," the lawyers' letter states.

Once the investigation was completed in early 1999, the letter claims, a senior Lilly sales official directed employees "to put the matter on the 'back burner."'

Lilly officials and attorneys declined to comment on the specifics of the letter, but a spokeswoman for the company said the plaintiffs' lawyers were mischaracterizing "what Lilly knew and when it knew it."

The pharmaceutical company has denied previous allegations of a cover-up made by the plaintiffs' lawyers. Lilly has said it was unaware of Courtney's scheme and, in any event, cannot be held liable for the misuse of its drugs once they leave its hands.

No reason to suspect

Lilly has repeatedly said it had no reason to suspect Courtney was adulterating drugs before May 2001, when its sales representative, Darryl Ashley, approached oncologist Verda Hunter about Courtney's sales numbers. Hunter bought chemotherapy drugs from Courtney, who mixed them for her.

The Star obtained a copy of the lawyers' letter, which was dated May 21 and signed by Grant L. Davis, one of a team of lawyers representing the plaintiffs. The letter was sent to the plaintiffs in more than 300 lawsuits against Lilly and another drugmaker, Bristol-Myers Squibb Co. The lawsuits claim the companies knew or should have known of Courtney's drug-dilution scheme but didn't notify authorities or take steps to prevent it.

Lilly makes Gemzar, while Bristol-Myers Squibb makes Taxol, Carboplatin and Cisplatin. All are chemotherapy drugs.

Bristol-Myers Squibb, like Lilly, has denied that it knew or should have known of Courtney's dilution scheme before May 2001. The letter says the lawyers had not yet received documents from Bristol-Myers Squibb.

The documents are under seal as part of a protective order obtained by Lilly and Bristol-Myers Squibb. The protective order allows the lawyers to talk to their clients about the documents but prohibits them from discussing them "with anyone not associated with this litigation."

Senior Jackson County Circuit Judge Lee Wells on Saturday lifted an order he issued the day before barring The Star from publishing the contents of the letter.