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In the case of the diluting druggist, no good deed goes unpunished

By Horace Cooper
web posted October 7, 2002

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."

Robert Courtney
Courtney

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 strength.

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 HCooper@nationalcenter.org.

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