The Power to Harm: Mind, Medicine, and Murder on Trial.

John Cornwell Viking 345 Hudson St. New York, NY 10014 352pp., $24.95

Whatever happened to the Prozac litigation --the dozens of cases in multidistrict litigation against Eli Lilly & Co. for homicides and suicides attributed to the effects of this popular antidepressant? Did the litigation dry up because the pharmaceutical. giant won the first big case in Louisville, Kentucky, in 1994?

John Cornwell, the author of this book gives a much more nefarious explanation for the sudden disappearance of the litigation. He suggests that the plaintiffs in the Louisville case (those injured and estate representatives) entered into a secret settlement with Lilly during the trial, yet submitted the case to the jury, lost, and did not appeal. He also suggests that other pending Prozac cases were settled at the same time.

The trial Cornwell covered as a reporter for the London Sunday Times Magazine involved the 1989 shooting rampage by Joseph Wesbecker, an employee of a printing plant in Louisville. He killed 8 people, wounded 12 others, and killed himself.

The plaintiffs alleged that Wesbecker acted under the influence of Prozac, which his psychiatrist had prescribed for him shortly before the shootings. Lilly asserted alternatively that the cause of the shootings was Wesbecker's job stress or his mental illness that, the company asserted, was not aggravated by his use of Prozac.

Cornwell and others evidently felt that a secret deal might have been made when plaintiffs' counsel Paul Smith of Dallas did not offer evidence about Lilly's wrongdoing regarding another drug, Oraflex, even though Smith had won a hard-fought battle to get that evidence admitted. The trial judge, John Potter, became suspicious about whether the case had in fact been settled, but his doubts arose only after judgment had been entered and no appeal taken.

Potter sought to rewrite the judgment for the defendant as a settlement, but counsel for both sides refused to agree and continued to deny there was a settlement. In an extraordinary development in 1995, Potter hired his own lawyer and appealed.

While the intermediate Kentucky court held that he did not have the power to revise the verdict, the Supreme Court of Kentucky held that he did have the inherent power to reopen the verdict and hold a hearing. The court found that "there was a serious lack of candor with the trial court and there may have been deception, bad faith conduct, abuse of judicial process, or perhaps even fraud." (Potter v. Eli Lilly & Co., 926 S.W.2d 449 (1995).) This aspect of the book will likely be most interesting to the trial bar.

Cornwell's book is also an informative work on a number of interrelated issues the Wesbecker trial raised. The trial itself, known as Fentress v. Lilly, is covered in great detail with transcript extracts. It was a typical David v. Goliath trial, with a plaintiffs' lawyer thrown into the litigation only shortly before trial against an impressive team of well-prepared defense counsel.

The book also focuses on Prozac and its ramifications: the huge market for antidepressants and the chemical effects they have on the brain and behavior. Cornwell sees these issues against the larger field of neuroscience, an area of special interest to him as a researcher at Cambridge University where he directs the Science and Human Dimensions Project.

It is from this very broad interest that he studies Wesbecker's behavior. To what extent could the plaintiffs argue that Prozac actually was the cause of the shooting? What strengths did the defense have in arguing that Wesbecker was a product of his upbringing, society, and the especially hostile work environment?

After the trial, Cornwell went to Texas to interview Smith. Both Smith and his wife were driving new Mercedes cars, he reports. He observes that Smith does not appear to be a man who lost the $700,000 he put into the case. Divorce proceedings iA Louisville brought out that one victim of the shooting had in fact obtained a substantial settlement, payable over three years, suggesting a reason to keep silent about it.

There is clearly more to come. Potter's hearing was set for January 17, 1997. As TRIAL goes to press, the judge has not made any decisions or rulings based on the hearing the supreme court permitted him to hold. However, the Seventh Circuit held in December that the federal judge supervising the remaining MDL proceedings for Prozac had improperly refused to allow discovery by certain plaintiffs into the terms of the secret settlement.

Paul D. Rheingold practices with Rheingold, Valet & Rheingold in New York City. He is the author of Mass Tort Litigation (1996).