doctrine of collateral estoppel was exclusively reserved to the court at the end of the case by withdrawing the question of privity from the jury, the testimony of Shanley and Gulledge, say the claimants, stuck out like a sore thumb. In a case of long duration involving contested issues of legal and factual complexity, it was impossible to foresee the exact boundaries of the case to be submitted. The members of the jury were told they were not to concern themselves with the question of privity; they were told that the question of misbranding did not depend on the intention or motives of those distributing the drugs and that the diagnostic abilities of the staff of the clinic were not in question. Under the circumstances, this was sufficient.
The evidence revealing the deaths of Crescens Klemmer, James Barger and Nicolei Lupanov. These persons were cancer victims who were treated according to the Hoxsey method. The account of their medical history, illness and death by relatives and physicians was pertinent in showing whether they had been thus effectively treated for their disease. It was not suggested to the jury that their deaths were conclusive on the question. Similar testimony was admitted in United States v. Kaadt, 7 Cir., 1948, 171 F.2d 600, 603, a case involving a claimed cure for diabetes.
The cross-examination of Doctor West. On direct examination, West (employed as director of research at the Hoxsey institution in Dallas, Texas) supported the claim of merit for potassium iodide, the principal ingredient of the Hoxsey medicines, which, according to his statement, had produced good results in a large number of cases by a process of strangulation or asphyxiation of abnormal tissue. The testimony of the government's expert medical witnesses and researchers had indicated that potassium iodide was either of no effect or harmful in the treatment of cancer. Without first interrogating West as to a past criminal record, government counsel placed in evidence a certified copy of a complaint and record
revealing that on May 14, 1953, the witness pleaded guilty to a charge of practicing medicine without a license in the City of Los Angeles. This procedure did not amount to a reversible error. 3 Wigmore on Evidence (3rd Ed.) § 980. In addition it was shown through official records of the State of New York
that West had been denied permission in 1951 to practice medicine in New York because of insufficient training. Both matters affected the qualifications of the witness, which were directly in issue, and were properly received.
In their motion for a new trial, claimants renew their argument relating to the holding for sale of the tablets in question, this time contending that whether the tablets were held for sale within the meaning of the statute should have been determined by the jury and not by the court as a matter of law. The court has adverted to and discussed the 'held for sale' requirement of § 304(a) extensively and has pointed out that there was no substantial dispute as to the important factors for determining whether there was a statutory holding for sale: a substantial charge was made for the course of treatment by the Hoxsey method and the treatment included prescription of the tablets as its essential part. The tablets at the time of the seizure had not yet reached the hands of the ultimate consumers and were therefore held for sale. United States v. Kocmond, supra, 200 F.2d at page 373. Nothing remained for the jury.
Claimants take the view that the court erred in telling the jury to consider in determining whether the Hoxsey medications were misbranded the impression which the various articles of literature would have upon the minds of victims of internal cancer who came to the clinic as patients. Although exception was taken to this point in the charge, claimants did not either before or afterwards suggest to the court what other standard they thought proper. However, the given instruction was appropriate. Claimants designedly or at least willingly made the labeling available for the use of unfortunate persons who were afflicted with cancer or who thought they were and who had come to the clinic for help. The literature would naturally appeal to those persons as it was undoubtedly intended to. They were the persons upon whom it would have its greatest effect because they were likely to be less critical, and less apt to question the representations by laymen and others reported in the leaflets. It is therefore only fitting that the truth or falsity of the literature or its misleading nature be measured by its significance to them and not to persons who for one reason or another would be likely to form a more critical judgment. In this conclusion, the court is supported by plentiful authority. United States v. Vitamin Industries, Inc., D.C.Neb.1955, 130 F.Supp. 755, 767; United States v. 23 More or Less Articles, 2 Cir., 1951, 192 F.2d 308, 310; United States v. Kaadt, supra, 171 F.2d at page 603; United States v. Hoxsey Cancer Clinic, 5 Cir., 1952, 198 F.2d 273, 276, certiorari denied 344 U.S. 928, 73 S. Ct. 496, 97 L. Ed. 714, rehearing denied 345 U.S. 914, 73 S. Ct. 642, 97 L. Ed. 1348.
The next argument is that it was a reversible error to tell the jury that the question whether one suffering from internal cancer has received adequate and effective treatment was 'essentially a medical question.' A new trial will not be awarded for this reason. Claimants argue that the statement required the jury to give more credence to the doctors who testified than to the patients themselves who were called by claimants to testify as to their physical conditions before and after receiving the Hoxsey treatment. Assuming this would have been improper, claimants' assignment is merely an instance of the long discountenanced practice of leveling attacks at an isolated portion of the charge without regard to what was said before and after. The issues to be decided were made clear to a jury which after many weeks of trial was well aware of the contentions and proofs of both parties and equipped with more knowledge about the disease of cancer than most laymen would ever acquire. They were told to evaluate claimants' evidence in light of all the testimony, including that of the doctors offered on both sides. There is no just cause for complaint.
There remains to be considered only the assignments raising the propriety of the submission to the jury of certain statements in the printed matter as separate instances of misbranding. The first of these
set forth a summary of a report by Dr. George Hiley, described as medical director of the Gotham Hospital, New York, and having impressive qualifications, to a Congressional Committee relating to a survey of cancer patients in Pennsylvania allegedly conducted by Dr. Stanley Reimann. The substance of the report, as summarized, was that Reimann's survey 'over a long period of time' had established that cancer patients fared better if they did not receive treatment by radium, X-ray or ordinary surgery. All of this, including the making of such a survey, was denied by Dr. Reimann who was called as a witness for the government and who also testified that he had notified the committee that Miley's report was inaccurate. The literature did not note his protest. See 21 U.S.C.A. § 321(n). Claimants urge that no instance of misbranding was shown because the report had in fact been made as set forth in the literature. However, at least by indirection the printed matter created an impression that it was a fact that such a survey had been made and that the survey justified the conclusions asserted. It would naturally tend to have greater effect upon a susceptible reader not only because the author of the report was a member of the medical profession but also because of the dignity of the forum to which the report was addressed. On the evidence the jury could have found that the facts implied in claimants' literature were untrue. It is not possible for claimants to escape responsibility for those implications now. Drawn as they were, the statements made a more persuasive appeal to cancer sufferers than if the representations implied had been made directly by claimants alone and for that reason, it has been said, they are not less but more obnoxious to the law. United States v. John J. Fulton, Co., 9 Cir., 1929, 33 F.2d 506; cf. United States v. Dr. David Roberts Veterinary Co., Inc., 7 Cir., 1939, 104 F.2d 785, 789; cf. Moretrench Corporation v. Federal Trade Commission, 2 Cir., 1942, 127 F.2d 792, 795. In submitting the issue to the jury, the court merely followed the explicit canon of construction of the act which the Supreme Court long ago set forth in United States v. 95 Barrels More or Less, Alleged Apple Cider Vinegar, 265 U.S. 438, 442, 44 S. Ct. 529, 531, 68 L. Ed. 1094:
'The statute is plain and direct. Its comprehensive terms condemn every statement, design and device which may mislead or deceive. Deception may result from the use of statements not technically false or which may be literally true. The aim of the statute is to prevent that resulting from indirection and ambiguity, as well as from statements which are false. It is not difficult to choose statements, designs and devices which will not deceive. Those which are ambiguous and liable to mislead should be read favorably to the accomplishment of the purpose of the act * * *.'
The second challenged statement is found in the printed matter
under the heading 'Court Rulings.' In the text appears a discussion of proceedings instituted by the United States against the Hoxsey Cancer Clinic of Dallas, Texas, and Harry M. Hoxsey in the District Court for the Northern District of Texas. Then follows the statement that the District Court in obedience to the mandate of the Court of Appeals (5 Cir., 198 F.2d 273), on June 29, 1953, entered a decree of injunction restraining the distribution in interstate commerce of the Hoxsey medications containing labeling representing that the substances were effective or of value in the treatment of cancer 'without appropriate qualifying statements revealing the conflict of medical opinion as to the truth of such representations.' What the printed matter failed to mention was that in mandamus proceedings instituted against the District Judge, the Court of Appeals determined that its mandate had not been obeyed and required the lower court to expunge from its decree the qualifying phrase quoted above. 5 Cir., 207 F.2d 567. This was done on October 26, 1953.
Claimants do not deny the false or misleading character of the representations made in the literature but simply suggest that the omissions were not material. This contention boils down to an argument that the misrepresentations could not possibly be 'labeling' -- i.e., printed matter accompanying the drug in the sense of explaining its use or usefulness. Kordel v. United States, supra. The Court of Appeals for the Fifth Circuit after carefully weighing the evidence in the case had actually concluded as a fact that the drugs, substantially identical to those involved here, were of no value in the treatment of cancer, but the literature created the impression that the Court had taken an indecisive stand. It is the view of this court that the considered judgment of such a tribunal of the United States with respect to the merits of the very substances in question would necessarily be of significance to any person interested enough to read about the Hoxsey remedy and particularly to those who were confronted with the choice of accepting or declining the Hoxsey treatment. By implying that a court of the United States had sanctioned the making of claims of effectiveness for the drugs, the literature gave the impression that the Hoxsey remedy in fact had merit and in this sense directly explained its usefulness. At most, the question is one upon which reasonable persons could differ.
The vital issue in this case was the efficacy of the Hoxsey treatment for internal cancer in humans. No claim is made that the question of the adequacy and effectiveness of the tablets was improperly submitted to the jury. Claimants were given the fullest opportunity to state their case for the drugs but their evidence was rejected by the jury. The court is not called upon in this opinion to discuss the sufficiency of the government's expert and lay testimony showing that the drugs were without merit in the treatment of cancer and observes only that the verdict of the jury is supported by persuasive and overwhelming evidence. The Hoxsey medications have again been weighed and found wanting.
The motions for judgment and a new trial will be denied.