# Appendix Record — Kidd v. Merck & Co. (No. 135) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386418_1301%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix Record - **Published:** January 1, 1957 ## Text a 10a €, Answer: OLS Lise ase from) aay plasma warali wctured Dy Laue deene rat Defendant would burthe 4 show Uhat is without intor- MaetON, O} knowledg a stifcient to for a belie! ‘as to the truth of all the other #llegations contained in Par, agraph 7 i al the comp Laine and tor this reason all ol the remaining al- logations are denied: i | . 8. De fendant denies the llegittions ot Paragr: aph 8 ol thse complaint, ' ‘ . ae" . 0. De feridant denies the alleggtions Contained in Para- graph 9 of the compl Aint, Defendant would show that there were no’ Warranties and that there was ho privity oF congract between the plainull and the defendant. 10, Detendant denies the allegations contained in Para- . -graph LO of the complaint. 9 | ‘ Defendant denics the allegations contained in Para- graph ii of the complaint, a = \li othe allege ttions ef the complaint not herein demied, -ynodified or explained, are here and now denied as fully and ‘comple: rely ay it specifically denied. \nd now having tubly answered said compl: aint. defendant bees to be hence dismissed Trom ad] liability in the premises with its reasonable costs. 7... ‘ . JOSE PH A. Me \E EF, ee oe ates “Attorney for Deiendant, | | 312 Park National Bank Blde.. Knoxville, Pennessee. ()} Counsel: LG FRTON, Mc \PER, ARMISTE AD & DAVIS. 2. Park National Bank Buik hing, Rnoxville b NIESsee. a lla = “Answer : ne I hereby certify that | have this day mailed a copy ot the lorcgoing answeg to Frank N. Marsh and: PooreGox- Baker & MK Aulcy, attorneys for plaintiff, this the Oth day af Marche, 1955. ° ; | JOSEPHA McABBEL Attorney tor Defendant. ORDER: ALLOWING SUBSTITUTION OF : COMPLAINT ¥ (Filed November 14, 1955). . ie Lo pou ap »plic ation of the plaintiff ‘ond by agreement of the partres i 1s ordered that the complaimt he retotore filed in this cause be withdrawn and. that the plaintdtt may sub- y situte in Heu thereof his “Amerided Complaint. ‘Atois further orddred- that the Answer ol the defendant - heretolore filed to the complains will stand filed as an an- siver tO the Amenile: 41 Complaint, : _ ENTE R: Robert L. ‘LPaylor,! Judge. AP Re Pose,” ie Frank H. Warsh, Jr. Attorney for Plainull. ba sau . McAfee, : Attorney for Delendant. AMENDED COMPLAINT ‘ (Filed, November 14, 1955) ° ~ Gomes the plaintiff, Floyd E. Kidd, and sues the defend- amt. Merck &-Company. Inc.. fer damages in the sum of $50.006.00, and for his cause of action, says:- : 12a Amended Complaint "4. Plamiitf is a ciuzen and resident of the State of ‘Pen- nessee, resuling in Knox County, and the defendant is 4 foreign corporation organized and existing under the daws of the State of New Jersey. [tis qualified to do and is doing business in the State of Tennessee. and its agent for the ser. vice ot process in the State of Pennessce ty the Corporation Company, Hamilon National Bank Building, Knoxville, Pennessee. Phe matter in controversy exceeds the sum o! $3.000:00, exclusive of interest and*costs. “he jurisdiction of this Court depends upon the diversity of citizenship be- tween the parties, and the amount in gpntroversy. 2 “The defendanty Merck & Company, Inc., through one of its divisions known as Sharp & Dohme, among its many’ other activities. collects hunijan blood trom professional donors, processes it in various lorms, places iton the markct and, sells it forea profit through the various channels of the ‘trade. ‘Among its many customers.throughout the word ts the Sisters of Mercy of Nashville, “Tennessee, Inc., doing business as Si. Mary's Memorial Hospital, located in. Knox- ville, Tennessee. One of the detendant’s products bears the trade naure “ “Lyovac’ Normal Human Plasma (Irradiated)’, and the defendant processes, packages and sells the same in interstate commerce and within the State of ‘Tennessee to be administered! natravenously to injured persons as a substi: cute for whole blood, especially in cases of shock and: hem- _orrhage, for the purpose of restoration and maintenance of body proteins, ancl for the purpose of re- -establishing blood volume following hemorrhage. 5. ‘The said plasma is supplied by the defendant manu- facturer in a sealed package containing one bottle, with a vacuum-tight closure, of pooled or iginal plasma in dry form . which is restored to full volume prior to administration by adding an equal amount of diluent (citric acid solution) con- tained in an accompanying bottle, both bottles being equip- and SOTCLIMES ¢ 18a Amended C omplainit ped with outer aluminum closures, ane eboth being pack Lg- ed together in the sealed package referred to. f° On or about March &. 1954, the plainutl was ad- mitted as a patient to St. Mary's Meynorial Hospit. tl. suffer- ing from the loss Gf blood due-to'a leg wound, and tor the atoresaid purposes v was adininistered mitravencusly by ages and emplovecs -ol said hospital ~“Lyovec Normal Human Plasma (Prradiated)”. which had been processed, packaged and sold tor the aforesaid purposes by the detendant to St. Mary's Memorial Hospital and in turn sold for those pur- poses by St. Mary's Memorial Hospital to the planntitt. 5. Whe said: plasma thus manulac tured and distributed by: the de fendant contfined a filthy, inherently dangerous adly substance knowiy as scrum hepatitis SH) virus at the tye it wes placed uportt the market by the deterdant and thus 4dministered to the plainulf. 6. About two iNonths after being administered said plasnya, and as the direct result thereol, the plainutl de- veloped’ a very serious liver disease known as yellow jaun- dice, transfusion jaundice or serum hepatitis. ~The disease was. caused by the presence ol the said SH virus in the said plasma. Asa resuli thereof the plainuff suffered. much pain, nausea, and discomfort. was bedtast for a long period of time, and was required to incur substantial medical and hospital bills in an effort to be c ured of the disease. He lost substantial sums of money by reason of. his inability: to: work, and he charges that lais Capacity for work and labor arid for the enjoyment of lite has been permanently im- “paired. Many Iniportant functions of the liver have been: > greatly impaired and the liver reserve depleted. Het is sub- ject to recurrences of the dlisease.i In ACUIC STages accompanied by further pain, anxiety, nausea, and monetary losses. “Phe original disease, as well as relapses, ‘often results in death. Th e plaintiff ‘is laced with this ever present possi bilits bad . Aaa Amended C omplaint throughout his uncertain future, and ag\ane sult thereot | he suffers constant tear anc apprehe nsion. : 7. In marketing said. piesma as aforesaid the defendant was guilty of negligence which broximately resulted in the plaintill’s contraction of said liver disease with the said losses and damages resulting to him, and in inarketing said plasima the defendant violated the following sections of the Supple ment to the C ode of Tennessee, the same being a part of the “Fennessee Food, Drug and Cosmetia Act: fe. ay. “6580.3. Prohibited Acts. ‘The follow ties acts and the caus? ww thereol within ae State of Tennessee are prohibited: 1 ‘a) ‘Vhe manatacture, sale. or aelivery, holding or offering for sale of any food, ‘drug, device, or cosmenic that is ‘adulterated or ciikeeaek eee. “6580.5 | Violations made misdemeanor. _, (a. . Any person who violates any .of the provisions 0! section 6580.3 shall be guilty of a misdemeanor and shall on conviction thereof be subject to lanprison- ment for not more than thirty (30) days ora fine of not “mere than fifty ($50.00) ¢ tollars, or both such imprisén- “ment and fine; * * * “6580.15. .Drugs or Devices net Adulterated. * A drug or device shall be de emed to be adulterated: “¢ay (1) Tf it consists in whole’ or in‘part of any filthy putrid, or decomposed: substance; * Coe 4 Plaintiff therefore avers that a cause .of action has ac- crued to hiin, and hence he sues the defendant for the afore: said sum of $50,000.00, and demands a jury to try the cause : FRANK _H. MARSH. JR., or es Attorney for Plaintiff, . — Hamilton National Bank Bldg., Knoxville. ‘Tennessee. POORE, COX, BAKER & McAULEY, 301 Fidelity Bankers ‘Tryst Bldg., Knoxville, (Pennessee, | 7 } Of Gounsel. | ] ij si Oe se Las ee a ee ew eee er oe eee PS ee . . ~ had. to-wit: ; ‘a TRANSCRIPT OF TESTIMONY 1) APPEARANCES: ; For the Plamuilt: POORE, COX. BAKER © McAUL rk ¥ Ben E."McAuley, Esq. . FRANK H. MARSH, jR., Esq For the Defendant: EGERTON, McAtEE. ARMIS PEKAD % DAVIS Joseph A. MeAlee., me HAYWARD H. COBU Philadelphia, peau, I his cause came on to be he ard before the Honorable Robert L. T aylor, Judge, of the United States District Court - ‘for the Eastern Distict of Pennessee. Northern Division, at Knoxville, Pennessee, and a jury, on November 15, 1955.. én succeeding days, when hie lollow! ng Proceedings were . THE CLERK: Floyd E. Kidd. iinet. versus Merck \ Company, defendant. “THE COURT: Are the @frues ready? VIR. McAULEY: We have one witness under subpoena who is not here, but L assume he will be here. 6s ae MR. McAFEE: - The defendant is ready, your Honor. (2) Tf your. Hanor please. you have heard of Phila delphia lawyers, what fine lawyers they are. “This 1s my first i aaiscavon of having a fine Philadelphia lawyer with me. thave Mr. Hay ward. H. Cobur n here who would like to par- ticipate in this case. THE COURT: We are glad to have him. VIR. McAFEE: -One other thing, your,Honor. We have My. Barclay: who is the director of the biological pri duction ot Merck & Company, Sharp-Dohme Division, which we de- sie to remain in the courtroom as.a representative of the. ° defendant: P) } : loa ; oa, ae ‘ : . Proce edings ry MR. McAULEY: No objection, your }Tonor. THECOURT:. Allright. Call the jury. (Whereupon, the jury was » qualified, selected and impan- cled.) 3 . ; ww hereupon. the witnesses were sworn aad the rule hav- ing been reque&ed were exc used from the courtroom.) JHE COURT: Allright. Now, Mr. McXuley, you may make your explani ALOry statement qn behalf of the plaintiff, MR. McAULEY: Very well, your Honer. Ladies arid gentlemen @f the jury, F believe we have. for the most part already acquainted you with the nature of this action, but a litthe more detail might be see sii (3) > Mr. Kidd.on ‘March 8, 1954 — he, in identally, ASL. building and painting contractor and he was working ona house he was building for sale. He had an-electric power - saw there and it jumped, bucked, or did something, but it cut his right leg ACYOSS the top His wite was across the street and his son was on the job with him, and so they car- ried him’ in the autemobile to the St. Mary's Hospital where he’ walked into the hospital arid was urere admitted -and while there in the ‘receiving ward was given certain inyec- tions, tetanus and various other shots that they give you in a -hospiti i, including. an injection or transfusion of this bios: plasma. Now, it might be ii.order to say that blood plasma is cis- tinguishgd {rom whole blood. We all know what trans: fusions are and we have heard of plasma but we may cor fuse the two. [know I did until I got interested in this case. _ Blood plasma.is prepared by collecting into a pool from a number of donors — I believe Merck & Company used 125 donors. ‘That blood is all put together in one pool and is processed and reduced to powder form and 1s irradiated with ultraviolet light and put into .a bottie with a sealed aluminum inclosiire in a powder form, and accompanied by c Pa er ere ee, oe Proceedings — another bottle of solution, and these two bottles in the pack- age are placed on the market. When it is ready for use the bottle containing (4) the diluent is put on top of the bottle containing the plasma by way of a needle and it is mixed together and shaken up and - a plastic tube connected with the end of the restored plasma ~ hung'on a rack, and ordinarily a needle inserted in the other ‘end of this tube and 1 insep ted in the patient s arm and it dri ips into the patient Ss veIDs. ; ‘ In this partic ular case that transpired. Doctor Gunn, and he is now in Louisville, Kentucky, at the veterans facility, and we have his deposition, here... He testified that, that pro-~— _cess was carried out and “that it was “the Sharp & S & Dohme’ S plasma, or the Sharp & Dohme Division of Merck & :.Com- pany, and that this ‘ore was administered as | have indi- cated. Tae Noid: there are two kinds of hepatitis. One is eben hepatius which can be ‘contracted by contaminated food, « the hands of people, or-from. water, and that sort of sea ) ee __ trouble. : | 3 3 Now here is another-thing. ‘here is absolutely no différ-_, __ ence between the virus that you get in infectious hepatitis ) than the virus that you get from serum hepatitis. It capt be — told, there is no diffe cence. 3 We say that it is not a filthy substance within the meaning of the’ Ténnessee Pure Food & Drug Act, and, ladies and gentlemen, it has got to be a filthy substance within the meaning of that Act, otherwise the plaintiff cannot prevail — eee ~ N ( in this lawsuit. The Tennessée Pure Food & Drug Act provides this, ladies and gentlemen: ; ‘ ‘a 7 - a 2a 6 Proceedings “The term ‘contaminated with filth’ applies to any food: drug, device or cosmetic not securely protected from: dust. dirt and, as far-as possible” — remember those (11) words — “and, as far as possible frou all foreign or injurious sub-: stances. oye We say that even though it ‘coe ‘be possible for this plaintifl to have contracted hepatitis from this plasma, still itis not a filthy substance within the meaning of that, Act. because we took every Pace to protect it from it.” The truth, about the ‘matter is," that there is no “way under the sun that you could ret it cut, And we say, ladies and gentlemen. of the jury, that: all of those will be our defenses iin this case. : | MLR. McAU LEY: May I make one explanatory. state- ment as to the statute: , es : MR. McAFEF: Wait just a minute, I did want to add thi8 — all right, that will be all. MR. McAULEY: You.were reading the definition ot contaminated with filth. Bhat is not a part of this law- suit. ‘Phe charge in te complaint: “6580.3. . Prohibited Acts. — ‘The following acts and causing thereof within the State of ‘LPennessee are prohibited: ° ve “(ay ‘The manufacture, sale, or delivery, holding or offering for sale ol wny food, drug, device, or cosmetic that is adulterated or inusbranded.” We have covered what ituteecuticn meins. “O580.15. Drugs or Devices Deemed Adulterated: rh ye eed erm @ 3 eae se consists -in whole or in part o! any filthy. putrid, or decomposed substance, * * *.” ‘That is what we rest our case on, ees The next “get of this statute, which we are not con- cerned with is: “Hit had been produced, prepared, packed sor held under unsanitary conditions whereby it might he ‘contaminated with filth.” \ . 23a i. oF ; ° Proceedings We are not after that part, but over here is the germ contaminated with filth.” | 3 ; THE COURT: “then, if I understand you, Mr. Mec-* “Auley, plaintitl agrees that this plasma was manufactured | under sanitary conditions? = VIR. McAU LEY: We do, your Honor. | THE COURT: All right. Call your first witness.» 7 “Floyd E. Kidd, 9 called as a witness by and on his own behalf, after ,having been first duly sworn,’ was exam ined and testified as follows: . DIREC EXAMINATION iy Mr. Me Auley: ae % You are Mr. Floyd E. Kidd? * A Yes, sir. : A Powers Street. ‘ (13) Q How old are you, sir ; A Forty. ? : ) What is your occupation? “A Tam a carpenter ‘and painter, O How long have you followed that trade: \ Fourteen years. (.) Fourteen years: \ Yes,-sir. QO Mr. Kidd, on Mi uch 8, 1954, what wete you doing? A Twas building a house on Carson Aven ue: Q Here in Knoxville: | ; Yes; si, 242 ; Floyd E. Kidd — Direct Was that — whose house was it? It was for myself. Building and seHing proposition? Yes,-sir.” I was building to sell. State whether or not you. sustained an accidental i In- * 0 > 0 ; jury om that job. » : Yes, sir. I cut my leg’with x power saw. With a power saw? - oo - Fe. . What’ time of day was that, if you ‘remember? It was around 2 o'clock. In the afternoon? Yes, sir. Cie A, See ( 1) O° And, ‘now, following th: it accident, what did you do, where did you go? | \ Well,. 1 went to St. Mary's Hospital. Q How did you get there? A. My ‘wife and son took me in the automobile. Q_ State-whether or not your leg was bandaged in, any aay before you left. the building site. | ‘ A, My son‘had a shirt sleeve there and he tied that around my leg above the wound over imy pants‘leg before *l entered the receiving ward. Q How did you get to the receaving ward froin the Sig -OroOe hospital? | : A WelleI walked to the door. Of course, my son and wile were holding me by the arm. — | | , ‘O ‘They were along with you? A Yes, sir, and then they tolled — that little chair out: there and I.sat down in it and they pushed me on in oT A ° the emergency room. ~Q- Were. you conscious? \ ' Yes, sir, at all times. 25a Floyd E. Kidd — Direct (QQ While there in the receiving room ot emergency room, will you describe what care was given your A > Well, they gave me’some shots, maybe three or four, ek then they, of course, cleaned the wound and later they started the plasma. - . ; (15) ° Q. Who started the pjasma, if you remember? A. Well, there was Doctor Gunn and, of course, there was another intern there. J didn’t remember his mame, or the nurse either: ove. But there were some more in there but later | got acquainted with Doctor Gunn and IT knew he was the one that started the plasma. | Q Where was the plasma started, there in the receiving ward or. upstairs? rane A In-the receiving ward. ~Q Hoy long did you stay im the receiving ward?. A Well, I guess I stayed down there an hour, something like az- hour and. a quarter. | THE COU RT: ~ No dispute shin them. ~ + MR. McAULEY: Very well. HT may Jjhave the list. ‘ THE WEPNESS: Okeh. | E - MR. McAULEY: (Writing an blackboard) — Doctor Shoemaker, $5.00; St. Mary's Hespital, $120:40; Doctor - Acker, $142.00; drugs and medicines, $35.00. . iy Mr. McAuley: . : QO Now,' Mr.. Kidd. let ime ask you, what were you . camming in 1953, your annual carnings: As. IT understand - you did not draw a salary or work on a regular pay job: ; vou built houses and did contracting work? ~° A That's right. | QO All right,. sir, what was that? eae ; “32a oe ’ Floyd E. Kidd — Direct (24; A You mean, you want the. actual earnings in 1953-7 ; Q Yes. A Well, I earned $6,642.25. Q What were your carnings for 19547 That is the actual earnings, not what was repented as gross earnings for income tax, but the actual work done. Actual work done was $2,900.00. ‘Twenty-nine hundred even? ‘Yes, sir — $2,973.00, 1 beg your pardon. A difference of the two years of $3,669.00? That's. right, siv. Roughly, $305.00 a month? . Yes, sir, that 1s about right. What time in April, 1954, was it that you resumed your regular work? ee A No, April. QO. OF this year? . A Around the first of April, 1955. Q That you did your first work for an income? A Nes: Sir. | | Q And did you do any work from May, 1954, untl ' April, 1955? > wi, A Not to earn anything, no, si-. ‘Q “Roughly, eleven months? A Yes, sir. (25). Q Did you lose any time in August? -A Of this year I lost two wecks. Q Tell us, Mr. Kidd, whether or not you have been limited ip any of your activities since contracting this dis- ease? Can yeu do a full day's work like you did before? A No, sir, 1 give out. IT work in pain all the time, Q What about your work on building houses? are there LO>e fei ode > 33a Floyd E. Kidd — Direct some things you can't. do that you were able to do before vour disease? A. Yes, sir, there isa lot of theim I can't do. © Could you tell us a few of ahem? X Well, I can't lift heavy rafters or two by six’s or put up sheetrock overhead, or anything like that. -Q. Who does that kind of work? ~A Well, T have two boys, or two men rather, that does ~- that werk for me. Q You more or less supervise that? A Yes, sir, and 1 do the light work, what I can do with- out putting t too much strain on me. Q Could you give the jury and court an idea as to vour relative efhciency as a wor kman as compared to what ‘twas before the disease hit you? Can you work full blast halt-blast or two-thirds or what? — “A About half blast. | 2 MR. McAFEE: ‘Let the witness testify. Don't tead, (26) Mr. Counsel — putting the answer in his mouth. THE COURT: , That isa little leading. MR. McAULEY: Very well, your Honer.” By Mr. Mc. Auley: ae : Q I will'ask you if you have. any way of comparing your current capacity to do work and labor now percent- age-wise as compared to the way it was before you got the. , disease? : : - A OW rel. f can't hold out now, oh, about four or five hairs, and: Lam just so weak and tired IT can't inake 1. QO How many hours could you go before the accident: Il mean, before — still thinking. of the accide nt — betore the disease? A Well. I sees work ten ie a day and never. know I was tired. ope ; i oo -34a-- -- - Floyd FE. Kidd — Direct O I believe that answers it. State whether or not vou are currently under the care of a doctor? A Y¥es, sir. QO Who is that’ ky A Doctor Acker. a QO. State whether or not you take medicine of any kind A Yes. sir, 1 take two kinds of medicine. Q How oltcu: ; | A Every day. (27) ) Do you, of your own knowledge, know what . they are? ans . A No, sit. ; — ie RS Aes liquid’ or pill> A Qne of them is a capsule and one ol ‘elec as a@ pull put it is something to. stimu: ite your hive: ‘and keep the bile moving. or whatever they call it. as it should. MR.McAULEY: 1 bélieve you can ask hime. + | — CROSS: EXAMINATION --— By Mr. McAfee: ; QO How old are you, Me hidd> a \ Forty. ae . ) O Forty ye ars of age: A Yes, sir. : O.- IT show you in ee Kidd, a surgical or medicale permit dated 3-8-54 signed by Mrs. Floyd Kidd at the tie . you entered St. Mary s Hospital, : A Yes, sir. OQ That is your wiie’s sign: ure: A Well. it I6oks like it: . QO And she had-authority to sigh this permit for you: A Yes. ir. T guess so. It looks like her handwriting QO But anyway. you approve her signing this pernut for wour | ' i) , Floyd E.- Kidd — Cross: - 28; A Weil, I would have if she had asked mic: yes MR. McAFEE: o1 want to read this, if your Honor please, to the jury. “4 ‘ FHE COURT: Yes. WR. McAFEE: . (Reading) eyo ee undersigned, a patient or friend of patient ‘ol Flovd Edgar hidd at St. Mary's Hospital, hereby consent to any surgical or medical procedure the surgeon or physician may deem necessary. Signed, Mrs. Floyd Kidd.” i er i ee By Mr. MoAtee: _ Q Mr. Kidd, can you describe the wound that you cullered? ‘A Sir? A as Q Can. you describe to the jury the wound that you suffered when you were workang there on the houses and struck by the saws é » : \ Yes, siv. Q How long was tt -- \ Well, E guess it was around eight or ten inches maybe. QO. How deep was that-wound, Mr. Kidd? ) . \ Well. I couldn’ tell you exactly how deep it was, hut it was-not to the bone. | Q Well, your doctor then would know more about F that, wouldn't he? . : ; 29) A Yes, sir. ; ie oy os 4 | | ; O- The doctor that %ctwally treated you ‘there? \ Yes. sir. | 40 You lost-quite a bit of blood, hadnit you. Mr. Kidd: e \ Well, 1 imagine I did. ‘It did not appear to bleed | r. foo much, though. — . . Now, you were suffering, quite a bit of chin? \ Well, it hurt a little bit. Sure did. After it hap- os Za 36a Floyd E; Kidd — Cross_ pened, it hurt worse later. When it was first cut I didn’ notice it too bad. ; Q The pain came a little later? . A. Ya, ar. Q_ At the time there, the first day, you said you took some shots? | When I entered the hospital, yes, sir. How many shots did you take, do — know? No, sit, I couldn't tél! you. Do you know whether or not you took a shot tor, an antitetants shot? A Well, they gave me something 1 don’t know what they were for. | .Q. Where did they give those shots to you? | A Down in the receiving ward. . QI didn’t understand your (30) A ‘Down. in the receiving ward. -Q What part of your body, where did they put those shots, im your armé#or in your leg? : : A Put them in my arm. —-Q) You were shot several times there in the emergency ward, weren't you? A I think about three times, maybe. Q ‘Three times? : A Yes. iS eee og QQ. All three ot them in your arm? A No. ‘They gave me one in my y hip. > Put one in your-hip?, “2 POF ~ ~ A Yes, sir. °° | Q Do you know what that one was? ae A No, sir. 3 QO You were in the homieal how long the first time? ~ A’ About nine days. 37a Floyd E. Kidd > Cross , Q You were in the hospital about nine days the first ~ ~ ce time? A Yes, sir. Q During that nine days did you receive other shots, ijl diflerent kinds? } A Yes, sir, Q. With a needle? jo ae A Yes, sir, (31) Q How often did they give you your shots? A. Well, for the first two days a gave me shots ¢very _ day. Q Every day? ey, tee (- a) oe Q° And how many a day’. A Well, one or, maybe one or two a day. I didn't keep any count of them. Q All right, sir. ° N But then after a couple of days they begin to let up on it to, maybe every other day, and finally they tapered off on the last week and they didn’t give.me any shots at all the last week I was there. Q But you were given quite a few shots? A For about four or five days, yes, sir. PO fe Q Whenryou were first in the hospital? 7 A Yes, sir. 0 Now, when you left the hospital after that, nine dys, what did you do? A ‘Tw ent home. Q .And you worked sorie between the time after you hos-" J got home, between May before you weit back to the pital the second time? A Yes, sir, I worked just a little bit. Q What did you do? . 6 38a : Floyd E. Kidd — Cross | 52) A Well, just looked after what work I had Goimy along. ~ QO Did: you have any pain guring that time with. you leg? A Nog, sir. O lake any shots in between times? \ A No, sir. Q Didn't: A Didn't ike any. | QO Did you stay in bed during any of the time afte: you went homer a ee , A For the first couple of dé ys I just laid down and ¢ rested on the bed: ; . | Q And the, ne xt time after you got home, you. went to work doing little: odd things about building your house: So foe | ae : QO 1 believe you said you were building this house {61 yourself? | - A Yes, sir, on Carson Avenue. ae Q Where? . A On Carson Avenue. : a .— MIR. McAFEE: 1 believe that is all. I would like fot you to show the jury though before you leave, if you will. just take your coat off and show the jury — Iam sure they ‘couldn't sce the tatooing on your arm from the distance (33) you were sitting. Will you show it to’ them as you pass by, please, sir? * ; THE WITNESS: Yes, sir. (Witness complies with request of counsel) ETHE COURT: Is that all for this Witness: MR. McAFEE: Yes, your blonor. : THRE COURT: ‘Take’a short recess. (A short recess was had.) = - 39a Harty k. Wood, Jr. called as a’witness: by and on: behalf of the pla til, after. having been firge duly sworn, was examined and testified as tollows: . DIRE c L EXAMIN, ATION By Mr. Me Auley: > ‘This is Mr. Harry k.. Wood? \ Junior. Q) Junior: \ .Yes, sir. )° Mr. Wood, what is your occupation? \ Jam chiet pharmacist at St. Mary’s Hospit: - ) How. long Je le you. been the-chiel pharmacist at St. » Mary's Hospital: A L-wenty. years. Q Mr. Wood, what do you have to do with the buying of the pharmaceutica!s at the hospital? 2 34j A’ 1 do all the buying of the pharmacy depart- ment. All the drugs are?bought by me. O- What kind of blood plasina is used there at the hospital, and I will say, what kind was used im) March of 19542 \ We have used the Sane type of pl: isma for twenty years. It as manufactured by Sharp R. Dohine Laboratori ies ‘and is irradiated plasma. Q Who is it that you purchase that {rom and who calls on you? | A Mr. Paul Robinson. Knoxville, Tennessee. OQ. And what company docs he represent, do you know? \ Sharp & Dohme. : ee os QO Does he represent the Merck & Company. Incor- porated? “ 40a “Harry” K. Wood, Jr. — Direct © ; ( A Well, Merck, you know — Sharp & Dohme is {ai IVE: sion of Merck. rec uas —* © Sharp & Dohine is a cde of a ae c \) fhat’s right. Q And that is the only’ plasma that the ‘hospital Ke ME 9 . A That is the only one I have.ever kept. O He ti plasma was available. there at the -hospital ‘in March of 1954? A Yes, it was. ° renee MR. McAULf#Y: You may ask him. 0 035) CROSS EXAMINATION By Mr. Coburn: QO You have been the chie! pharmaci ist there for twents years? paar A For twenty years. © It doesn’t seem possible. A. I started there when I was ten years old. Qf believe that you said that during this period you had always bought Sharp & Dohme b'ood: plasma. — A I have.. Q Was there any particular reason for that? A Well, I chosé that particular plant. because it is in dry form «nd is irradiated, so therefore you.don't have any , chance to have it spoil. Also, the representative from Sharp & Dohme is a resident of Knoxville aiid I have a chatice to see him in a hurry: af anything goes wrong.” He also ¢ checks my file every two. weeks, which is as often as’ it should be checked to kéep it in geod standing, and I figured that was the .best thing for the safety of everyone cor cerned, * 2) You have uséd it for 20 years. I take it you have Ala | it ae K. Wood, Jr. — Cross - not had to check with him toe much because something went wrong, | se A I bane never had anything wrong if all that time Q How much plasma do you | usually keep on stock®, A I keep cight units. PS (36). Q Kight units? r- A Yes. And each unit is — «hree in one: pack? ‘A ‘That's right... Sometimes you give two if the patient isvery al. | . | | Q suppose if there were a serious accident or some: _ thing of that sort in the area you might exhaust all that supply? A I have on occasioh. | Q What did you do then? os A In that case I called the representative and he wired’ to Atlanta for it and it is brought here by air QO You have never had occasion to hav e to borrow from another hospital? © A Not plasma, I haven't. : Q Then, as I understand ii, it all this twenty years’ history of using ‘Sharp &- Dohme’ plasma, this partic ular complaint is the only one you have had concerning ‘the use of plasma? A. The only one I know of. QM You would know of it? | A Certainly, they come to me first, MR. COBU RN: Thank you. : : REDIRECT EXAMINATION By Mr. McAuley, (837) Q In other words, it is a very rare, rare disease, ‘isn't it, Mr. Wood? Cc 42a Harry K. Wood, Jr. ie Redirect { I don't think-it is so rare. So many $cllows Got it during the war. a QO . 1 beg your pardon: . . ¢ , Aa yX You mean hepatitis: Q - Yes, irom plasma. \" Oh, from: plasina. Well, from this particular plasma i sate it should be Because this pl: ismia is irradiated. That would mak& at varer: : oe eae S : | hg oe MR. McAULEY: Thats ail: “Thank you.” -’ > MR. COBURN: That is Lae : (Witness excused. ©. ‘ - Milton Norris». ‘ called as a-witness By and ‘on behalf of the plain- tiff. after having been first duly sworta was exaajined and testitied as follows: , re be can os DIRECT EXAMINATION By Mr. McAuley: . | QO You are Mr. Milton Norris? \ That's right. O. Mr. Norris, what is your occupation: \ [am the chief technician, St. Mary’ s Fhospital. - Q And-whatis your age, please, sirr (38). A. Forty “SIX. .-. ae Re QO Dayeu duties inciude injecting needles) in patients. taking blood samples, and the likes A My only duties. on that-would be take blood sampk \s far as injecting anything, T do not, Q Inserting the, needle gnd withdrawing bicee A That ts all. , ©. And, inshat connéction, ot course you u dg use needles * ‘43a: 3 | e Milton Norris — Direct ar aaa \ “Thats right. Q Could you tell us, Mir. Nerris, what, if any, system the “hospital. in your department parucalarly, employs in connection with sterilizing needles: A. Well, of course, the needles are washed thoroughly sith’ water and a. detergent to remove aay foreign. body or foreign material, and after they are completely washed, deohel is run through them and they are packaged sep- arately, put the needle and syringe in an autoclave and sterilize them 30 minutes at 20° pound pressure. af Q ‘Then, fF will ask you this: After having given the reed lc that particular treatment, is that needle used more than once before it is again sterilized: : “A Just used for the one time and recleaned and re- sterilized, ; . ; Q Itis rcAcaneg and resterilized after each use?’ (39) A Yes, sir. 6 QO And was that the pracice ol March, 1954 also? \ ‘That has been the “practice at the hospital from the {tse J have been: there. O° And you have been there how long: \: Since 1949. MR. McAUBREY: You may ask him. Ppa a CROSS EXAMINATION by Mr: Coburn: QO You are the chied technics ian, | beticve you said? \ Ves. sire ; ; La QO And i think you said, your duties are sUperVISINg BR only the taking of blood samples trom the patients who Po might be at the hospital A. That's right. | Now, rf the paticnt who was at the hospit if received Val Lous: injecuions ot mor phindor deme vol Or other mater Li ui —"% 44a | Milton Norris — Cross Sy that is, that a patient might be receiving by hypodermic - means, do you have any responsibility for that work? A None atcall. sir. - e . QO No responsibility for the sterility of the equipment used Ww) that Connection: . A No, sity norhing to do with our department at all. O ‘Are you familiar with the minimum requirements ol ie National Institute of Health for withdrawing whole blood (40) citrating whole blood dealing with the sterilt zation of instruments: A. No, sir, {) Are you famuliar, at least by rer atation, with Doctor Rader ick Murray, who ts associate director of the National Institute of Health? ° i a A The only thing I am familar with wv the ‘adminis- téring of blood is that we receive our sets and they are ‘not dispensed from our -departinent, The only thing [ have’ anything to do with is drawing the blood from the donors or from patients. As far as administering, [ have nothing to do with it. | | | Q Would you, agree that whatever: requireme nts are set ant for the sterilization of instruments used in the actual withdrawing of blood tor donor purposes would also~ be acceptable standards to be followed when you sterilize the instrusacnts for drawing blood in your ‘department lor sampling? AT would think so; yes, sir, . “Q WwW hat are the conditions under which Yeu sterilize your needles? e A I sterilize them in an autoclave of live steam at 20- _ pound pressure for 30 minutes. Q Thirty.mii utes: : Pie Yes, sir... ae: : a : ———_e-”-_-~ i et te 45a : Milton Norris — Cross Q Mr. Notris,. you.gave a deposition on oral exami- nation (41) in this case, did you not: A Yes, sir. . ore ee ee THE COURT: Mr. Nortis, 1 believe, Mr. Coburn, {you will stand back a litle the jury can hear. He drops ais voice. ‘Talk up, Mr. Norris, because’ the jury wants io Hear What you.say. - ani aa jy Mr. Coburn: Q Task Mr. Norris if he hadn't givena deposition on. tial ‘examination sin this proceeding, and you said that vou had? A You smean@the one at St. Mary’s ‘Hospital? Q. Yes, sir, # : | A Yes, sir. 9 You were asked there a question of how you prepared / ane needles and other equipntent, and you said, “We use asterile syringe to collect our saraple of. blood. We sterilize tt under steam. pressure at 20 pounds for 15 minutes: which the accepted rule for “sterilizing” cquipment:* jis that a correct statement? = : “AT can’t remember what I said. 15 minutes or 30 tuinutes. Timay have said 15 minutes. LT think 15 minutes will sterilize them ‘but [ am pretty. sure we sterilize ours minutes to make absolutely sure of it." - . Why are you more sure of it Now it was SQ minutes jan you were when you said 15 (42) XA ae am-not sure. T may have said 15. -Q And, as nah matter’ of fact. you knew you were using minutes. | : A We may, bat 15 minutes will sterilize them. . Fr" Q Since you Teaid vou are not familiar with the mim num requirements of the National Institute of Health in connection with the sterilizing of instruments, [assume 46a- Milton Norris — Cross . = you wou ald) not"Know whether the procedure you -tolloy ior sterilizing was within the standards or notz A. Lhave never read them. Q So, you don’t know whether the sterilizing. procedure you follow meets those standards OY wotr A {dont know whether the time does or not. 15. oF 30. -minutes. Since | have worked in Laboratories 15 minutes is ample time’ to sterilize them at 20 pounds pressure with live steam. arn s Q But how long ago was that? . A +L have been doing laboratory work for about 20- years. — Q) And it ts quite possible the requirements now fol sterilization of needles against hepatitis developing might require a greater length of time than 15 aninutes? | A That, 1 couldn‘t tell you. I don't know. THE COURT: Can you hear answers, ladies and gentlemen: Mr. Norris, the jery wants to hear what you say (43) and-I will have to ask you to talk louder. ° Will you read the last question and the Jast answer. I don't Luow whether the jury Areard it or not. (The preceding question and answer were read.) Mi. COBURN: © That is afl . - REDIRECT EXAMINATION’ - By Mer. McAuley: QO Whether 15 or 80 minutes, Mr. Noryis, in any event I believe you did indicate that 15, muNUtes 4 ould definitels sterilize. instruments: , A ‘Fhat is what I have ae told. 15 or 30> mirtutes: would w ith that much steam pressure. Q Twenty pounds pressure of live steamy. * © \° That ‘Sight. 47a Milton Norris — Redirect ‘ Qt. Marys Hospital is one of the ‘outstanding hos- pitals, Is it not, im this area? \ | Suppose so. MR. McAULEY: That is all. RECROSS EXAMINA . lO’: By Mr. Coburn: an QO Just ong question. Phat is whiat you were told 20 VCalS agor S That is what | have always been taught: ves, SIT, Witness excused.) | . | MIR. McAULEY: Now we have, it your Tlonor please, tH) the deposition of Doctor Gunn. | / I might’ say this is the deposition ef Doctor W. U. Gunn, which was taken last October 8, at Louisville, Kentucky, Doctor Gunn being the person there in the receiving ward who started the plasma. (Whereupon, j the déposition of Doctor W. U. Gunn was read by counsel: My. Marsh reading the que stions and Mr. Mc Autey reading the ANSWETS. ) ‘Dr. W. U. Gunn, called by the: plaintiff, having. been first duly sworn to tell the truth, the whole truth and nothing but the truth, deposed gs iollows: “DIRECT EXAMINATION ~ PY Mr. McAuley: . O You are Dr. WOU. Gunn? A Yes, sir. : . “OO Dr. Bunn, where are you presently” locatedy . + \ With the Veterans Adimuinistredaon Hospital im, Louisville, Kentucky. | 48a ‘Dr. W. OU. Gunn — Direct “Q Will you: give us your educational. background, Dr. Gunny , . “A TE was graduated from the University ‘of Louisville Medical School in i949 and served a year of interneship and I have had approximately three years experience in . _ orthopedics. “QO You limi? your practice to the field of onbopedi surgery? (45) “A At the present time IT am w vith the staff of the Veterans’ Hospital and I no longer do orthopedic ser: vice because of a physical disability. : “Q Where did you take your interneship? “A At Orange Memorial Hospital in Orlando, Florida. “Q WwW here were you located in March of 1954? “A T was in Knoxyille,. Tennessee at St. Mary’s Hos- , pital. “Q What was your connection with St. Mary's Hos. pitalr me bree “A Twas Resident Surgeon in Ortliopedics. _ ¢ “Q Were you in private practice or did you: receive — remuneration from some source? “A I was connected with the hospital; not in “private practice, “Q And you were ‘paid for rom services by the hospital? “A Fhat’s right. - ; “Q > While yeu were there, Dr. Gunn, T will ask vou whether or not you had occasion on March 8th, 1954 to) __ see and treat a Mr. Floyd E.. Kidd’who is the plaintifl in this case? | “A: Yes, sir. “O Where did you see Mr. Kidd? “AT fitst saw him in the Emergency Room of St. Marys Hospital * AGa DY W. U. ‘Conk’ Direct “QO Would youfremember what his condition was ual the (46) time you saw him and what he was suite ring trom? AS Phe man had’ just suficred’ an exicttsive laceration of the’ right thigh im an accident. in-a saw accident. He jas In extreme pain: in miuld to moderate state of shock. -©O “What was. done tor him; had *he been bleeding trom the wound? a EOS, SIF. --O What measutes were taken at that particular time, ‘DreGunn? Beh - “A The routing sUpporuve micasures th. ware usualy idininistered wath ‘such AN CXLCTSSIVE injury wer e given. The mi in was admitted to the hospit: an... He was prepared lor surgery. N-vays of the atlected extrensities were taken. He was given tetanus and gas-gangrene antifoxin. die was given streptomyacin and pejicillin and plasma was started intravenously. | “QO Was The Room? , “Ay Yes, sit. “Q) And that was. belore the x-rays were made: “A Yes, #ir., . | “O + What type of plasma was he administered? slasmia started there im the Emergency “A He was given Lyovac, which is the trade name tor Winthrop Stern's plasma. | | “QO And who was the manufactiirer of that piasmar {47) “A W inthrop Stern. : Ke W as that Lyovac normal hurkan ph ismar ‘A Normal human pooled plasma, - 0 Do you temember while there at St. .Mary’s Hos- ° pl ital sceing packages ol Sharp and Dohme’s plasma I. be- heve it is cabled? \. LThavea correcuion.. / rection Lor us now: 50a. Dr. W. U. Gunn — Direct as . MR’ McAFER. Ui your honor ple. ise, that was the at fs tempt by adversary council to pit the ANSWECL to thus ques tion in the witness: mouth, and T object to it. and FT think that Objection should -be sustained THE COURT: : “AL right, read the objection. MR. McAULEY: The objéction is. Just a minute Doctor, pkease; the toregomyg Genes tion is Objeeted to be cause itis leading and suggestive. He does not answer right there, vour Honor MR. McAFEE: He goes on “MIRO MARSH: Go ahead and answer, Doctor f “O- Dr. Gaunn., I belreve vou st: ited a moment ago that. you had a correction to make “Would you make that cor ment that iis Sharp & Dolimwe’s. TP believe itas Winthrop \ This product is Lyovac. TP think I made a state 4 | | Stern s.is Lyovac plagma. | | ‘O Was it the plasin. that was furnished by the (48; * Pharmacy. Depaitn cent of the St. Mary's Hospital: “A Tt was furnished by the Pharina y Department tend. . I am POsILIve” it was Lyovac. o.¢ aa, t Aren't Vou alse positive Thateit was Sharp & Doh me's? Bio ag a cert * “MR. McAFEE: There again, vour I fonor please he put the answer- on | THE COUR lk: Deo vou deny about selling this? MR. McAFEF + “No. But TP object ta corfisel leading his witness. ; . ; THE COURT: Overrule. | Do not bring up matters 0 that kind. | _ - HE WITNESS: - It 1s Sh. ip & Dohme's, Lyovac is How Is that material or that plasma “packaged. Dr ¢ ene 2 _ « SR ee ee eee pee ee ee eee ee 3 ee See Ste = 6 UN ee ee ‘bottle of the prepared plasma’ Dla Dr. W. Xu Gunn re Direct m3 “A dt ts under a strict packaged sicrile condition. It is Wh apped ina sealvd box.a cardboard package and the botthe in turn ts sealed with a heavy aluminum package. —O How Hans bottles come,in the pac kager “A Iwo bottles, () One contains what and the Sica what? A One as a vac tune, cmpty be ttle and the other bottle contains dried pl. ismia product. Is one mixed with the other: . ; \. That's right. 2) °\Q Do you remember the name or could you hyocterrang to a nege tell ts who the nurse was who assisted tthis administrationfot the plasma - “A Mrs. Xfildred Wolle. QO Was » the patient pli red ona hospital bed or on a table: 2 : | . \- On a treatinent table. O He was placed on a treatment tables \ Yes. OQ Was anything done about the thigh wound there in the Emergency Room or was that done later on in his jospitalization — in his hospit. il room? \. The wound was merely dressed ym the Emergency, "ps Sony BS, 7 : 2) flow did you go about starting the plasmin? How is that done, the mechanics of itr You open the package ind s \ The package - is opened, broken and the double needle, witich. is part of the package. 1s inserted imto they. vacuum battle an the other end is inserted fato the plasma product bottle and the venipuncture needle is in turn 1n- verted into the vein of the recipient, . ; QO What connects the venipuncture needle to the € ° . & 52: | | ¢ Pe Dr. W. U, Gunn — Direct . AN sterile needle which is supplied with the package (90) °O Lwallask you whether-or not there is a tube? “NX Ob yes, there isa plastic tube which is s also supplied * ‘with the package. . O Is the bottle of plasma cles: ated above the patr tt: aN Yes, sir. “OQ And the contents of the bottle of plasina pass through the tube into the needle and into the patient's vein? a es. Bir pe ; . Dr. Gunn. IT will ask sou whether orenot the pack age is a sealed package: a~ “A. [tas sealed. ; . OG What method is employed in openimg, th: it pack age ovis it acconipanied veath any diffeulty? . \ Only moderate dithculty. Tt can) be opened by’ hand. we : a the package such that had it been previously opened or tampered with that you could have told thi it by pus oem 3 it: Fee air. “QO Was this a sealed package? 3 \ It was foaled. . . . | . QO Can you tell usswhether or not Mr. Kidd's stay in ‘the hospital clatively unevertial or rather, E will ask tac ho pita Was PCHAtIVely UNCVCRLUE OF TALACY, Wil GSK —f91y veu what was his. progress? OA” After he was taken to surgery he had an uneventful Convalesccnce ree was discharged a few days later. MIR Mc AU LEY: I believe vou may ask. “CROSS EXAMINATION “By Mr.oMecAtee: QO Doctor. how bong did you.stay there at St. Mary's’ \ Lua yCars 53a Dr. W. U. Gunn & Gross ) When did you start- A In January of L953 Oo And you leit? “AL dett in October of “54. a | Q. During that period of time you were the resident surggon there at the hospital> ~ | ye a aoe as MR. McAULEY: In erthopedics. “TRIE WEIENESS: ‘Lhe. orthopedic service, yes. O Now, you mentioned something a while'ago about Winthrop Stern’s plasma. “Phey do make a plasma do they- - \ No, sir: Tbelieve not. “This product — Tam positive twas Lyovac. ” : QO What makes you positiye. Doctor: ‘A Because 1 remember distinctly secing Lyovac and twas all that was ayailable at St. Mary's. QO Could you be mistaken about it, Doctor: (52) “A; No, sir. | “O You couldn't. What makes vow remember this particular episode so distinctly, doctor? TL notice-you don't have any notes of any kind in front of you there. Why do sou— Sear © 3 : ae , ‘MR. McAULEY: (Interrupting) JT would like ‘to tate’ for the record. that the doctor is testifying from a photostatic copy of the Emergency Room record, Nl Ro McAFEE:. Well. I didn’t know-that. - You didn't tell this. °O. Doctor. this. photostatic Emetgency, Room record a vou say you have been testifying from that as tG these facts? “A Only partially, to belp me reeall, because as you stiggested. there are a great many emergencies that are ad- mitted there from time to ume. ‘Phis is my own hand. writing at the time though, part o1 this Emergency. Room record. » cd 54a Dr. W. vu. Guna — Crass “OO Who ordered the pi isma to be given Mr. Kidd: “A I did. “QO For -what purpose” did y you give it to Mr. Kidd? “AX Because of his mild shock state and also because . it was anticipated that he would be immediately taken to surgery /and that is the routine method to start an intra. venous transfusion’ in the Emergency Room to anticipate their being taken to surgery. ) “Qs Is that the common accepted practice of treatment (53) in cases ol this -kind whert they suffer just dike Mr. wae? “A When the injuries are this severe, yes, sir. “: Could you describe for us just the type of an injury that Mr. Kidd had? se es ‘ “A He had a eniumiaely a 14 to 16 inch laceration on the anterior, right thigh which extended down to the ehtire sult tissue layer to the bone. \O Quite a severe: cut, wasn't it, Doctor? oe It was-severe, jagged, a dirty cut. “O And vou. gave him the plasma because ‘of the shock ‘condition the patient was int | a A Yes. sir: “QO Ts that the only reason? - "A Well, the reason also that I gave a ‘while ago is that he was going to be taken, to surgery and it is usual to have an intravenous needle started at the time and alsa to draw his Jaboratory blood. 7 “OO So that. to — well, is that to replenish the blood too, is. that the purpose of that? “A For possible reple ‘nishment. gt Doctor. vou said this partic ular package of plasma ' ~ id ‘ t ° that vou used was in a sealed box: “ “Am . Yes, sir: the ‘ 55a ° Dr. W. U. Gang -- Cross “O You have given plasma often, haven’ t you, Doctor? “A Yes, sir. vice . (54) ° a You-ol course’ have read the instructions that accompany plasma, by the companies, , “A Yes, sir. “Qs And especially the instructions that accompanied the Lyovac plasma: “A Yes, sir. *Q You.read thoser> | ee “A Yes, sir; I have read them before. “Q Doctor, I hand vou here some printed instructions which is issnied by Sharp & Dohme and it accompanies every package of Lyovac Normal Human Plasma. Have you seen~ the printed. instructions like that in the plasma used there at St. Mary's Hospital: * “A Yes, sir; I have. ; “O Have you read. those instructions, Doctor: | om (- os foe NP ens . : “Q) Now. Doctor, I will ask vou if there is any scientific procedure or method oi discovering whether or not whole blood or blood plasma contains a hepatitis v ivus? “A At which time are vou. referring? | GO At the tithe of taking blood from the donor or any ume before the tra insfusion is given: no Not to my know ledge. - ‘there is no scientific ee ee or procedure sists ae ane of. of discovering whether or not Whole blood o1 55) blood plasma contains a hepatitis, virus? “A That is a litte out-of my held. atid: they may have methods. °O But you don’t know of any? “A T wouldn't know. mysell. . “Q Doctor, isn’t it a fact, a well-recognized fact by medical profession throughout the country that in doa ¥5 me °* . Dr. W. U. Gunn + Cross all cases of 14 uisfusions of whole’ blood and blood pl. ist there KB alw: V5 the possibility of the patient contracting hepatitis or a jaundice, L\It isa so-called calculated risk. “Q You say that asa calculated risk, then, that each patient , takes when you eive transtusions of. whole blood * and blood plasma? ' “A oft isa Fisk; yes, sit: aa! “QO. And you knew that that was a risk’ at the tinic “you CAVE this particular plasma te the plaintiff Kidd? - =A Yes, siv: I didn’t think of it as a risk, however. “QO But you knew about the risk at the time yqu gave this plasma to the plaintit Kidd? “A Yes, sir. “QO Now, I believe vou sti ated that you were the one “that actu athy superv@ed the transfusion of the blood plastia to the plaintill Kidd ¢ on this particular time on March | "MR. McA I. EY: ~ Fhe wiiness testified: he did it (56) himse lt. “QO You did’ it. ‘yoursell? "A CaaS right. eS Albright. Now, IT believe you stated that “you have. read those instructions and directions which accompany the Lvovac plasma prepared by Sharp * Dohme and I would like for you to file this pamphlet as Exhibit Number One to Your de OSTULON: ~v \ “4 Dey, oes (Phereupon the document above referred to is filed Hye TEeW ith as aga hereotl. } rere - “OQ Now “then, ‘Doctor. T want you to turn to page iwo of the pamphtet and read into your .deposition there begin ning at the bottonvof the page where it says Risk of Serum ifepatitis” on page two, down to the end of page | ree. a 57a” ‘ . Dr. W. U. Gunit — Cross : PHE COCRT: Do you want the exhibit filed® MR. MeAFEE: — Yes. i 7 oh te en A (FE ibs: No. | was filed MR. McAULEY: ‘i his is reading’ from the pamphlet which is enclosed with each package of plasma. : ae Ht is gencrally recognized that some samples of foe blood contain a Virus ¢ apable ot causing se oiled q serum hepatitis or serum jaundice tollowing transtusiorf, A Although the relationship of homologous scrum hepatitis \ to infectious hepatitis is not enurcly clear, present. (57) —\ indications are that the icterogenic agent of both diseases veh : “Despite careful sclection of blood donors under. strict supervision, there is still the possibility that some blood will contain the hepatitis Wirus, since no laboratory pro- cedure exists for its detection-in the blood. “In recent years methods have been developed for the sterilization of suspensions containing bacteria and viruses In comautted studies carried out in human subjects, using » both irradiated and nonirradiated serum, hepatitis did not occur in those-individuals who received injections_#! irradiated material. ‘Toxic effects.due to radian of plasina were not ‘observed following Hajection J} this: ma ‘terial and there was to deleterious effect on the therapeutic value of the plasma. Radiation of plasina with ultraviolet light was accordingly adopted as a requirement: by, the National Institutes of Health. > | ? “More recently, similar. controlled studies im huenan, subiects were carried out using plasina irradiated wath ultraviolet light in compliance with the regulations of the National Institutes of Health. In these new studies the radiation process was not-elfective in preventing the trans mission of homologous serum hep Utitis. | di en bxa iy De. W, VV. Gunn Nad Cross “In addition to the studies relerréd to above, there hare been several, reports. ot hepatitis, following the (53) in ieclion Of radiated Human plasma in which, de ‘spite other well recognized SOUTCES O ( -iiMfection, it t appears that thie ViPdS Was transmitted oe ithe plasinas “Phe Occurrence ob scrum hepatitis has also been reported following thet jection of irradiated hyuman mumps immune serum, “On the basis of the limited evidence now available. the “physician: should assume that the use of irradiated human phasraa stuilf ray mvolve ca caleulated? Fisk Chat the patient Ih Aty develop SCrurL. hepatitis. | ‘“O Doctor. the instructions that. you -have just filed: _ bear number MIE-96207. Phat is correct. isn’t it?’ 8M That is the number on the pamphlet you have licre. “Q\ Yes Now I show you another pamphiet which bears aries 06204 — NE. “6204 and am gouig to ask .you to. te Chat panyphlet as an exhi bat, Exhibit Number ‘Two oi Let sre ae ae gd 1 do. Bh | (Exhibit No. 2 was filed.) °° “Q “Now, then, 4 call your attention to page two 0! the pamphlet you have-just filed’as Exhibit Number “Two to Vor deposition... beginning with page two at “Risk o! Serum: Hepatitis” I am going. to ask you to read that into you deposition: : | ane Y& ‘A dt as gencragly recognized that some samples of.- hang ood contain a virus capers’ ot causing so-called (O90) seram: hepatitis o1 serum jaundice following transiu. sion. Although the relationship of homologous serum hematti, to infections hepatitis #s not entirely clear.. present amtlications are that the icterogedic agent of beth diseasey isa Virus. Phe-reported morbidity rate of serum hepatitis varies {rom 15 per cont among patients who re . at “ee ‘ Dr. W. "UL Gunn — Cross ceive plasma fom vial pools (> to 10 donors) - to 45 per cent to 12 per cent in patients rer ‘eciving plasm a from large pools (1000 to 5000 donors) Lap tes ‘ “Despite careiul ‘selection ol blood donors under strict sUperVISION, there is still the. possibility that some blood “will contain the hepatitis virus, since no laboratory pro edure exists for its detection inthe blood. ‘In recent:years methods have been developed for the serilization of suspensions containing bacteria and viruses. | I: contyoHled studies carried out in human subjects, using both irradiated and nonirradiated serum, hepatitis did not occur in those imdiyiduals who received injections of ir- radiated material. "Toxic ettects due to radation of plasma were not observed following injection of this material and there was no. deleterious ctlect. on dhe therapeutic value ol the plasma.: Radiation of plasma with ultraviolet light was accordingly adopted as a requirement by the National Institutes of Health. 3 “More recently, similar, as yet unreported, con- (CQ) tolled studies in human subjects were- carried out using plasma irradiated. with ‘ultraviolet light by a technique complying with, the regulations ot the National Institutes of Health, but differing in some respects trom that em- ploved in the original studies and that employed in the manufacture of “Lyovac’ Normal Human Plasma... In these new studies the radiation process. that was used was hot cHoctive in preventing the transmission of homologous serum he patitis. , ‘In addition-to the studies referred to above, there have been several reports of hepatitis following the injection af an adiated human: plasma iy W hich, despite . aiher well recognized sources of infection, it appears thet the virus. was tt anstnitied th rough the: plasma. . Lhe occurrence of : og . é 60a Dr. W. U. seen — Cross serum) hepatitis has also beey reported following the in jechion ol int addlia ited Hum: ine PVULEL Eps it mmune serum. “On the basis ef the limited evidence now available the plivstcian . shioutd assure that the use,tol irradiated human. plasma still man ivols cae alctiated risk that the parse imav de velop serum n hepatitis.” ey “O Now, | believe vou said one of those plinphlets & \ vas. in the package “of pl: isma that you openad tltere to give to Mr. Kidd? : a Fe . “MIR. McAULEY: He-said a pamphiet. “A Apa: sph vlet was and. I don't know whether “it: was one of these. Tt was similar, z . (Ql) ~Q Weill, it contained a t proy ision“anyway call- ing your attention to the risk of serum hepatitis, did it not: ay xe don't remember speciacally. | “OQ. Haven't you read that pamphlet, Doctor: “A P have read a stmilar pamphiet, but L can’t remen ber whether thi. particular one — 1 didn't read the phample with that particular serum, “Q But you have read a pamphlet? “A Yes. “2 Prepared by Sharp. Ne Dohme and sent along with its — “A ¥@qs, sir. “O That contarned ‘that same prov ision calling atten ~~ ton tg the risk. of the cai culated” risk of hepatitis in the event plasina was used: airy 4 Yes ; | VER. McAULEY: Let the record show, that this witness” “has not mi ract re ad the provision contuoed in either 0! these two documents. 3 “O Well tnen. F willsask him te read it now. You read Doctor, the prov issons in both of these pamphlets and see Ola. Dr? W..C,. Genn — Cross « cou-recalk reading that in a previvus paluphlet or a- 4 : f pieaes | oO Yes, sir: TP have read srimilas iiformation. = “CAN ot An oth pamphlet prepared and that: ne) accompanied the Sharp & Dohme’s phisma: AS. Sik) ; as O Doctor, how many datherent wavs can a person tontract serum hepatitis: ‘\ Well. there are several -mears QO Give us some el. them: eee “A° Phe first and most common. fs. by ae but there are records on cases where patients hay ad it sithout Being given pooled plasmas b any mot tamuliar with the others. | . . QO) Can-you contract i from taking whole blood from: another person: 2 ‘That's right. : Wall, there ure aie Cases, “HUINCLOUS- SOUTCES ee a person can contract serum hepatitis. arent there: - “\ | am not positive. tle ie ae edi ee a tay . “QO Well, don you know that rou con contract it from : taking these malaria vaccine ‘shots: ; VA) Lhave heard that. ’ ZO Yes. that 1.°9 common source of it? (Witten nedded head in affirmative.) Don't ycu know as a matter of fact that you car, cont tract - it fron, unsterilized. needles when vou Inject out Into your Ves: | T have heared of that. °° > - _ (63) “Q ThatAs another common SOUT. or it isnt vthat trae? - 7 “ae Well, ay vy source where you are iitroducing ihe possible production of another person's blood products a . +> ms o . 624 Dr. W. U. Gunn — Cross Q > Have you ever known ot hepatitis following dena) procedures: : ‘“& No, sit, (> Or have you eyer heara of it following tattooing: * Pe “A T have heard ot it. -O. You have; fe 4es “QO Have you ever heard of it occurring in drug addicts: “A As LT said before, it can be caused by ‘anviline where- oe —_ “OQ Where there ts an Injection into the arm Gy ves of the ‘blood, streams ae | ‘\ Jf it involves a second — source. “Q When a person centers St. Marys Hospital oF anv othe hospit: il he signs an- entrance card which he approves and authorizes the hespitar and the attending doctor to use such methods as he deems wise in caring tor him. Isnt that true: : | “A -Well, if-he is unable to one ot his relatives does i it (64) °“Q One of his relatives: : “A At the earliest practicable moment. “QO Tn other words he can — he consents to all of the treatme nts that are provided for him there in the hospital’, A- If Te is an emergency i is undertaken betore the formal consent is arranged. “Q Well, you don’t k 10w whether that was true in this parc, alar case or not, do your ye didn't witness the s* snature, no. “QO You dot know as a matter ‘of fact that his. wile did sign the congcut im his particular case? : ‘y No. but f assume that-she did. - “QO Was she there at the time? “A Yes, she was there. MT. McAFFE: Vhat is ally 5 ea Pe “OHSa Dr. W. UL. Gunn — Redirect - -REDIREC LE EXAMINATION hy Mr. McAuley: QO Dr Gun. when Mr. Kidd came un I believe you fescribed his géondition as acmuld to moderate shock. Ts jw Yight? “A a w.. ° } QO A person that is in a mild to moderate shock, I will ae you if that sca critical thing? In’ other words are tou sort of on the verge of dying or is it less than critical som the standpoint of being on the verge of dying? 65) “A Tt is not oritieak no. Sir. “MR. McAULEY: “That sat. “RECROSS EXAMINATION Bs Mr. McAfee: | . “O But you thought it was advis.ble 40. give the plasma in this particular case otherwise vou. wouldn't have eiven it? “A That's right. ' one Most patients are back to a normal existence, the mayority of the patients before now. ‘QO Do you feel by virtue of sthe experience he has wr the disease he had. «was the disease he had untisually vere, or more than the usual case, in view of the fact he stilk does present sy mptoms? A That is a difficult «question ta answer. More than, . . . 2: ; >. “QO lt is my underst nding the majority of patients the usual ease? should be symptom free bv this time, and since Mr. Kidd n't. L was‘wondering if that would enable you to symptom. we or characterize his case? 5, - “AT wouldn’t.put him in the unusually severe ‘group. ‘Q) Moie than the usual? | tr. J. EB. Acker, Jr. — Direct “MRE. McAFEE: Phe witness said more than usual da , lt, 1 : . . noc wm the cCrass.o usual epithe bt RT Ei Cas¢c, ifi yout! OPMNIO aaa a 1 dan v | j a DE OG } L101} ] could SAN it etree: | th be : i ; - y:: v* 4 ; r () In any event. the mecdicatyon which You Nave pre - “* } . a : at ee : “— NAS 5 ._. scribed a8 to mcrease the How OF PVCL bile: O Saybe I misunderstood You carlic answer, A Would it be better it I would just explain that Oo We tust want to know what the situation IS. 5 A“ Fhere are’ certain syraptoms W - Know follon. esses, of hepatitis which.can be Ranvovedch by sa Sbove medica tion. (78) “Lhey are. not necessanily duic to a marked 73a De &. Acker, in. ~ Direet . decrease in the How of liver bile. ‘There’is more to it that) that, therefore for mic $O Say categor ally that i am treauung . a decreased How:'ol liver bile. would be a most superti ial stateme nit. ‘Vhat is w hy Ecant he detuute. —. : st Can you give ‘the Court and jury any idea. as to how long Mr. Kidd will remain unde such medication “i. No, ait. ih : oa *. “ECROSS een INO By Mr. Me. \tee. ee Doctor. I don't believe I remember how long vou suid you had been im the-active practice here. ns AD Since September, 1948, seven years. 2 . oO Gardiplogy is your. speflalty right now: * . bi biota cliseascs. Jot “Myr. Kidd, 1 believe you said you entered the hos oa on May 26, 1954, “and was Yeleased from the hospita: on May 30, 1954. or a period ol about four days, is that’ correct? . it 2. . ae _ Entered on May 25th and. discharged on May S0(h. “O That would be five days: oe oN Six days. “QO Have you had a good | many hepatitis cases mm yout pidfessional care ey? ee . ee “A Several. pea . , (79) x 8 fs theac any serentilic proceddte’ or method: at discovering whether or Hoty hole blood or blood as aASINa cont: uns a a ca LA ¥es,. sir. c What 1s that procedure? “XT ycan't give you a detailed account. IT am not a taboratory man, but there is a differential. test- whereby . 74a . Dr. J. E. Acker, Jr. — Cross . infectious hepatitis serum ‘can be ditlerentiated trom hepatitis serum, . ~2Q , ahat isn’t my question. Let me go over it very carefully: and slowly.‘ Is there any method, stientific or otherwise of discovering whether or not blood contains a hepatitis virus? | on aes sera ‘A ‘Blood? Pee SNC _ ; “Q Yes, blood or blood plasma Virus. “A Yes. “QO What ts it, what is the method. “AT couldn't give you the name of the method “Q How do you know there is such a method? “A T have read it. ae “QO Whe reabouts? ‘It was in the Americ: in journal of. Medicine some Fuss time since 1950 in an article by Stokes, and. beyond that | can't tell yeu because [I am: quoting trom memory of two or three or four or five years. (79a) °“Q You are testifying, and it is not‘a ‘catch: question, but it is an important question — you are testily-, ing to this Court and to this jury that there is a method of discovering whether or not blood or blood plasma con tains hepatitis virus? * “A Yes, but no. practical method. “Q What do you mean by that? “A Well, one might empty Norris Lake spoori by spoon. That is no practical method as compared with letting the water out in the locks. It can be done, but it ‘is not of suffici lent simplicity with regard to time and ex “pense to make it practical. ae “Q If Lunderstand you right, you say there is a method in detérmining the virus: “A -Yes, sir. _ “Q. But you can’t tell me what the method is? 742 . Dr. J. E. Aeker, Jr. — Cross ‘o 4’ Can't give the name.” : “Q And you can't explain the method- ae I cannot, . “O° Can you isolate this virus? - ¢ I cant. | . Q. Is there any method to isolate it? “\ ‘That I couldn’t.tell you. — ; QA, Dont you know as a matter et fact that there isn't any way to isolate ity | . (hy UA. FE said that] couldn't tell you. “Oo want-to show you a public health réport dated’ “August 18, 1943, Vol. 58, No. 33 on the question of Jaun- dice Following Administration of Human Serum, and which was prepared by John W. ‘Oliphant, Surgeon, Alex- aider G. Gilliam, Senior Surgeon, and Carl 1. Lawson, Passed Assistant Surgeon, United States Public Health Service. “This is a photostatic copy. If there is going to be aly objection, I am going to have to get the original decument. Can we agree we may introduce: this photostat? — “MR. McAULEY: 1 haven't made any objection: Mr. McAfee: QO Have you ever seen this report: “A° No, not that I recall. ‘QO Turn to page 1255 —1 will ask you. now to file ihis as ENHIBIE No. | to your testimony. “Read me the third paragraph as ul appears on that page. : “MR. McAULEY: We will object to introducing it iciats the mouth of this witness who has neither seen or . tread the arucle. _° a . MR. McAFEE: ‘I would like to tile that as Exhibit No. 3. ° [HE COURT: . What ts. the objection there? MR* McAULEY:. “We will object to introducing, it 76a Di: J. E. Acker. ‘Ie. = ! . Cross ° a ° mach thie mouth: 6 this: witnesstwho has neither seen or (81) read the article.’ ; PH KE COURL: Well, are you ‘testing’ the witness, by Vou examination: 4 ; oe | MR. McNFEE: , Yes, youn WH OOr. fHE COUR E: ‘Lemay be considered. iailics sil gentle. men of the jury, as testing the knowledge of this Doctor \ckér. It is not considered as substantive evidence in this - case about the cliara¢ter of the virus, and so forth, about whether or not the virus-may be discovered by laboratoty methods. [t is not substantive evidence on that pomt. . MR. McAULEY We concede it could not be so dis- covered, ‘but this is a matter of gétting before the jun the testimony of some withess who was not present, through the mouth of a witness who neither seen nor heard, of the pamphiet. He asked the witness to read it to the yery. MR. McAPEE:. But he isn’t testifying, if your Honor please, that there is no method — this evidence 1s that ther is no evidence. That is testing his knowledge. | MR. McAULEY: Wello he should bring that witness, here. : : : MR. McAFEF: . Counsel just now made tlie statement. that they concede there is no known method of determining ites VErus. - | MIR. McAULEY: he presence of the virus. ° MR. MeAFEE: In the blood? a (82) MR. McAULEY: Yes. NER. McAFEK: | They concede that. HE COURT: You dor | - MR.. McAULEY: - Yes, your Honor. ‘That was stated the very begining. | | Re Gall VOUT HEX Witness. , ~MR. McAULEY: We have two witnesses here who have not--been sworn. your Tlonor, eae e . (Whereupon, the’ witnesses were sworn, and the rule having been asked’ for, excluded trom the courtroom. j , MIR. MeAULEY: Tf the Court: please, 1 would like at this time to read into ‘the record from the dictionary the definition of the terms’ “filthy” arid “impure.” Andterthe record, Lam reading from the new Merriany “Webster, Webster’s New International Dictionary, Second Edition, Unabridged, Page 947, definition of the word “filthy. “Tt hes quite a few definitions and T will just read alt of them. “) the Court please, + bh *. “Filthy. ot. Qefiled with -fildy: iether material or. moral, nasty; disgustingly dirty: polluting: foul: unpure obiscene. 2. "in the other sense — “disgraceful: disgust: ‘ing: low.” eT fn. Ti ie — Synenyims. “Scqualid, unclean, gross,” licentiows~ Sec: DIRTY.” - 8 ae | Antonyins. “Clean. See IMMACULATE.” One of the definitions Peing impure - would now " (5) A. Flere in Knoxville. ou J. And how'loug have vou been a practicing physicians A Two and ‘a half years. ae | 9 Where did you graduate and take vour medicad ning? ee ae ne | : is took ms medical training at the Urrivérsity ot ben esee, College “Of Medicine. Memphis: QO And graduated whens ro “Sha ae ee What do you mean by that: : by that statemene, T mean the difference lies ih how the virus catered the body, whether by the-gastro- intestitial tract, such as the drinking of water o1 by some injection that would be given as it would be in a serum hepatitis QO “How im: Any dite rent ways can a serum hepatitis 4 Virus “enter the body? : \ if it were by mouth, of course, it could be iny Mat manner. Phat is not the usual method. Usually. it is by INgJECLION, . QO By injection: A Ves; sar. | QO Do you know someé ol the causes or the sources, from which this scrum hepatitis can be obtained: \ It has to come trem someone who has hi id the disease QO ‘Could a person contract that serum: hepatitis ‘Virus from an unsterile needle which had been injected into another persons arn ; (99) A Belore or alter: Re Belore: . P 4 4df the others person had infectious ° hepatitis then that needle would be contaminated with this virus: yes, si. Q. Anda person could contract serum hepatitis virus from an unsterifle needle in that fashion: A: Yes, sn | QO Doetor, what is the Incubation-lor scrum hepatias’ NA dt varies tremendously, sir. ? 89a ) . 7 . ' _ Dr. Roy A. Wedekind, Jr. — Cross” ae does? X= Yes; sir. Q What are the periods: \ [think it is generally accepted as 60 or 166 days, 180 days. oot QO What is the incubation period for infectious hepa At) Generally accepted as roughly six weeks. Q About six weeks? | A Yes, sir. | QO Doctor, if. a person had not received a transfusion — al blood plasma. or whole plasma but in the course of 60 davs he would have a case ol hepatitis virus, what would you av caused that hepatutis? * A) You say-he had not had any serum — QO Yes, sir. (LQ0)- A —or plasma? e L Yes, sir. : A What-.would Tsay had caused the hepatitis: ie (Se ; P . | : \ Jt would be based prin ita on history. Hf there WETE a history of a needle injection = ) Tam assuming that he had no injection. 1 No injection: {) No, $iF. ie \ That is ditherent. | Q And. within a course of 60 days he contracted a case ot hepatitis, what wouid you say was the cause of that hepa- ULIS: | . VIR. MEAULEY: Sixty days from what, af the Court QO (Continuing) Well, trom the day he lett the hos- pial. Assume that he was ‘in the hospital but he had had UGA . Dr. Ros A. Wedekind, Jr. — -Cross no transfusion. ol any kind. cither ol ahole blood « plasma, 60 days alter that time. \ You mean, in other words, a healthy person without any hayection Q Yes, su P. Sixty davs later developes clint ally a hepatitis. hepatitis, what would IT sav caused 1 7) Yes, sivl ‘ aa (100) \ LT would say it was a virus hepatitis © Would you savan infectious hepatitis’. ) A Tf there were no history of iingection, certainly OQ Let's suppose he had an injection and ot days late he Fie 22a hepatitis. What would you say caused that ~ \ He had had aur: mistusion, now: Q) Yes AR od . ; , * “Or some pi. asa tr anstusion: Pe TES. “A Ttas- possible that that transfusion was contarynated * with the virus. . . a3, But int at also possible t that even thougly he had hi \d ie Oe instusion th tL he coule l, hi we contracte ‘dd Hic hepatitls 1 } i through the mouth: through food. water. and @t would still be infectious hepatitis, isnt that trues ° . Yes, sir. | ! : . Q, So. from a diagnostic: point: of ‘view, there 1 uM haar difference between the Infectious hepatitis and the se hepatatis. is there: A Lthink we established that in the ‘first question Yes sit.) . ; QO Doctor, you say that Ll vour oprmo0n a he; patitis ViIUs isa filthy substance: AAs the ictionary points out. an impure substance (102) yes. i Al i i ie Ma Ola Dr. Roy A. Wedekind, Jr. — Cross Q Are vou just taking the dictionary meaning of if ar are VOU Using Your own meaning OF Your own definition: - For what now: : 7 “Q) Whether or not it is filthy: \ Whether the virus scl 1s filthy: () Yes , : \ We are speaking of a virus or something Contaming i vibus: | QQ T-ani speaking of the Virus. \ the varussis.. itself, personally, is nowvhithy ) \o varus atscli is not filthy.as that correct: . \ thatistYue. Phat isimnimyown opinion how I would. describe it sc aneorhe) physician. 2 QO Phat as what I wanted, Doctor. Now. then. what about a virus in smallpox antitoxin, avould you classi that as tidal: oe ¥ el \ooIn smallpox ‘antitonin: QO Yes. \ Lhat is an attenuated efus. ‘0 Would that be filthy: 4 Not as long as it. was. aitenuated. an Q That is beneficial to people, isnt it, because 1 pre vents smallpox: . A eS, sir. M3) GQ Doctor, Isnt at true that when a patient ti oe etranstusion there Is alw. Ws a calculated risk involyed ontractineg hepatitis: A” Vee ees Q That is a caléulated risk that is well known an the medical profession: ; A You.are speaking of a whole blood transtusron- QO On blood plastna. | \ Lhere is a calculated risk. yes. sir. . Baca as ' . 92a . ‘Dr. Roy A. Wedekind, Jr. — Cross QO There is a calculated risk in both. instances, isn't ‘there, Doctor? - A ‘The amount of risk is different. however. betwee a transtusion and a transfusion with pooled serum. QO But itis a calculated tisk in both instances, isn’t it, Domree. ae 2s ss , A Yes, sir, | ie ‘ - Q And that is well known sunong the medical’ ‘pro. lesstone A Yes, sin Q And when a doctor gives a trans{usion of: either whole blood or bleod plasma, he gives it well kndéwing phat calculated. risk: . | \ Yes, sir. We don’t use the transfusion on scrum: We call that refusion. ‘Pransfusion’ is blood. : QO Now, Doctors isn’t-it true that blood plasma can only be given or dispensed under a doctor's prescription: OP) A Yes, sit. | You doh't gO out on ive vearket and buy blood plas asina like you would buy aspirin tablets and things: like that? - | A don't know where the Red Crass obtains it but they get a whole lot of it. QO But it ts only given under a dac tor’s ‘aia ora A Yes? sir. Q You say you have used plasma in your practice? A Plasma-z Q. Yes, sir. : | A Not in my practice. IT used it when I was in training Q What plasma did you use? ae A I took my taining at the Knoxville General Hos- pital. I couldn't tell you except we used the plasma. It was prepared there at the hospital. + Q> Prepared there at the hospit: al? ees enna eneeee 93a Dr. Roy A. Wedekind, Jr. — Cross A Yes, sir. MIR. McAFEE: I believe that is all. REDIRECT EXAMINA PION “by Mr McAuley: Va . ~Q Doctor Wedekind, d believe you did state that plasma’ which was virus-tree or contained no bacteria.® would: be considered a pure of unfilthy or proper plasma, is that correct: -s ee ; . . , (105) A- Yes, sir. 5s : ot ee QO) Lt that same plasma does contain the hepatitis virus, I believe you stated that in your opmion it would-be an - # impure virus? ee ee as : QO And therefore that was ni that scnse. you say, filthy: A Yes, sir. | MR. McAULEY: ‘That is’ all. RECKOSS EXAMINA TFLON By Mr. McAfee: * Q But you said in yeur opinion, in your opinion as a doctor, the hepatitis virus was not a filthy substance. A, In my description as a doctor of the word I wouldn't consider the word or organism itself as filthy, mo, sir, just uke L describe any other object. °° ~O Doctor, if vou can’t tell in advanceewhether or not blood contains a virus. then you can’t tell whether the hl, . . . vlood is pure or impure, can you; \. Speaking of whoie blood now: Q Yes, sir. I 1 No, sir. 9 You cannot? . : - By the Court: Y4a oe © Dr. Roy A. Wedekind, Ir. — Recross \ Now, let me quality that statement, with respect to the virus as to contrast whether it is pure or impute | (106). Q You could not tell? A That is right. Q [am not sure I understand you, or that the jury understands you. You stated..that the virus itself was not filthy. “Am | correct im that understanding: a A Setas a medical statement. I mean, if I were talking to someone I would not refer to a virwts as being filthy. | would refer to it as being a foreign body: Filthy 1s a word I mae often use. | > How is it considered in the medical profession ot A scientific professions, how is the virus considered> A I think it would ‘be a matter of opinion, or word | you use most frequently, I} another person was describing it as filthy, | would not disagree with it at all. Q Well, if it 1s not filthy in-and of itself, do you Say it is ag when it is a part. of blood? - T would say so. yes, sif. é How do you make the distinction? \ Well. I admit that is a personality trait. In auto: mobiles, some person? might say one is attractiye, and that is how it appears to tha { person, mi iybe not someone else THE COURT: © Either side may ask him any furthe! question that you desire. (107). ~ RECROSS EXAMINATION By Mr. McAfee: Q You do say that in the medical prefession it would not be considered as filthy: A By me? : QO By VOU. 95a Dr. Roy A. Wedekind, Jr. — Kecross \ Yes, just speaking as generally some people might cg) toate. ; ° Q. But you would not consider it filthy — | \ Speaking of a virus itsell ora substance containing it? : o Q The virus itself. : ) 1. No: () the virus in the blood, imipossible to: see it, linpossible to. Nnd if you did not know, and you could not see detect it, that it is in there, then-you wouldn't say the blood was filthy, would your " | . \ You say it is ae to see it. T agree with that, with the naked CYC. , | Q Tf it is impossible to see it, fit is impossible to. 1so- ate it, then you would not even en the blood filthy, are you? ee sas : \ Now let-me go through this thinking process again. You are saying that since we can't do — well, let’s put it aditterent way. It I had a bottle of blood and [ (108) ‘was, told it was in there, I would say it is filthy, mot fet for use. O They have admitted that we cannot detect the pres- ence Of a virus in bloed. Now, if you can't detect it in the slood, you wouldn't say the blood was filthy, would your , Tf I don’t know it is in there, no, vi MR. McAFEE: ‘That is what I-wanted. ov the Court: O Can it be detected by microscope: , ‘ \ An electron MICTOSCOPE, | am sure it can QO You are saying it cannot be detected by ‘the human \ That is right. UO Bat it can by instruments: an 96a Dr. Roy A. Wedekind, Jr. — RKecross 7 A Atrelectron IMICTOSCOPC, yes sir. A virus is a filterable particle, through a filter. +—~ MR. Me AFEF: It-has been ea the very reason —That I I agreed to take out the pamphlets. It-has. been con- ceded by the plamtiff that this virus cannot be detected under any circumstances and that is true. There is no scientific, according to the authorities, the latest we have, there is no scientific method that it can be’ - detected and no scientific method in which it can be_elim- inated. i | (109) THE COURT: In view of that testimony, do “you want.to refer to the articles? } By Mr. MeAtee: Q Doctor W edekind,. you testified a-few minutes ago that you did not know about whether or not it could be. climinated, didn't your, | A “IT can't ‘remember specifically. To “the best of my knowledge it can be eliminated by a per iod. of prolonged c orage. : 75 @ You think it can? tak A I think I recall reading that. QO Where did you read that? A TL have forgotten now, sir. I read so thany Medical Journals, I don't remember. Q You’ * don’t even know where you read ‘A No. I am sure if I read it it was in one of three or four publications though. | Q Doctor, it was once thought it could ‘be eliminated by radiation, wasn't it? | A’. Yes, sir... -~ Q But they: found out that it ceniid’ t? ‘A That's right.” Q And it fiasn't been proven as ‘a fact it can be ¢elim- Via fi WR. McAULEY: Yo may ask him. - CROSS EXAMINATION By Mr. McAfee: "| . Qo Doctor, what is hepatitis virus, can you,describe it tor > ~ , usr \ Well. ama practicing phy siclan and-not a bactes ae gist or a biologist, and so Tam ‘not as familiar with it“as | would be rf [ was that type of pr actitioner. Bit a virus is a little organism which is capable of piss: ing through a very fine filter. It is fine or finer than would. be- NECESS. wy to tr ap a bacteria, sty, one-or the other typos of organisms that can invade human tissue, and it is capable Of transmitting disease. In other words, of living as: a parasite in human tissue. That is the definition as best q can give’ it now, Of virus in gener: al. (116) ‘The spec ific Virus you asked about, the ane that. CAUSES hepatitis, iS simply the sitine type ol. virus which hasan afhinity for the liver and maintains its disease process there. ae QO, Are you telling this Court and this jury that in your opinion as a doctor that the virus itself is a filthy substance: A- Jam not sure what the definition is of a sage sub- "}02a - cr Dr. John H. Burkhart — Cross stance as pertains to this virus, but it isan impure substance vid PT would say it was a filthy substance: yes, sir. ~~ QO Would you say the virus us Spepes Vaccination al . wotud be a filthy substance? \ NO, sit QO ft would not? : A: No, sir.. ae PBN riety, ee OY Isnt it a substantially similar yirus, that is, to the Hepatitis. Virus; En . \ Well, yes. it is substantially the same, the way you are using it there. It would be the same in that sense, You Wwould be usmg it in a pure culture of virus. and there isa difference in my wav -‘of thinking in something ‘that contaminates another substance than’something that is used: In 1ks putre state : | -O Docter, vow can’t detect a virus in blood, can +117) \ No. eo Hs. . : we se : ‘ : . ) Phe hepatitis virus: ; \ > No: . d And sher is no Way to remove it from the -blood, no, treatment, practical treatment known among the medical profession by which tt can de removed? — >» \. Not to my knowledge. there is noi. . © ‘Then. Doctor, how. can you say something that you cant detect. something that you can't remove,-could be filtered within the meaning of the medical profession as vou Use IL? 7. 4 eae i A a \. Because it-is not a nérmal Constituent: of, human blood vey, 2Q Do you usc plasma in your practice? : Ves, tir... . . | © De vou think it is a beneficial remedy to be used . in the medical practicg, is is not? - ; 4 103a Dr. John HL. biaditiact — Cross A Yes, sir. yng — Q But at the same tine Vou are saying 1b ts Ailthy ail it tANS A VITUS? ” . | \ If at contains a virus, yes, iv, | f Q Doctor, the fact that plasma, or for that matter whole Hood: may contain a hepatitis virus, that fact is well known s#iong the medical ygrolession isn’t ity, (lig 0 You would not dispute the cxistence of a risk there? 3 tase To owaill remain neutral and not say. as my pinion would not be of any benefit. | MR. COBURN: Thatis all. MR. McAPLEY: That is all. pate - MIR. McAULEY: Mrs. Kidd, will you take the stand? THE COURT: Now. you are not going through the whole’ story with Mrs’: Kidd about the condition of Mr.. (Witiiess excused.) Kidd. are your MR = AULEY: No, your Honor. o> 1 10a 7 Mrs. Floyd E. Kidd called.as a wetness by and on behalf ot the plamut * . °, e alter having been’ first duly sworn, was examined and testified as follows DIRECT EXAMINATION (127) By Mr. McAuley: Q You are Mrs. Flovd kidd: Wee {- Se: -QO Mrs. Kidd, did you accompany. your husband to t! -haspral at the time of the leg injury: oA ves, sir, T did. | “ — Q- How long was he in the hospital: A I believe it was-nine days. ~~ ~~ we " Q- After the first period oi hospitalization’ with thr following the leg injury, T will ask you whether o you were the one who looked alter the hospital bill ther A Yes, sir, did. — yes | () Can you tell us what-the charge was tor the plasma A Well, the exact figure. Iemight not be exactly, right but it is three hundred and some dollars. [can remem exactly. a Sn | ) ( Thave in mind-just the blood plasma. 7° cae’ Thirty dollars. . } Q Thirty dollars’ \ Yes, sir. . : THE COURT: Is that in addition to the $302.002 MR. McAULEY: | No.+ Phat bill is not even beter. the jury because that is the first period of hospitali7atio and betore hepatitis was contrac ted You may ask her... (128) MR. McAFEF No questions llla "Miyrs. Floyd EF. Kidd Direct Mr. McAuley: QO Do you remember signing the authorization, which aas been mmtroduced as Exhibit No. 3, Mars Kidd? | \ Yes, sir, that is my signature () When was that dones Was that done upon adihission shortly thereatier? | : \ I beg your pardon: | QO. When did they see you about admitting Mi Kidd, uw there at the time: AO ONo, sir. atter LT taken Mr. Kidd into the cmergency omcand-then when thes started to take him up. They taking Mim at that time around to surgery and I told .] was going on and change my clothes. that TL would be } «ko then Twent home and changed my clothes and came kK and went to the adnuttine officccand that iwowhen | O) And stened bint in-- es : . . & \ Yas, Sit. including this ‘doc iniecnt here: MRO McAULEY: | Thai is all RK. McAFER: No questions oT pom (WWitiness excused.) VER MeAt LEY: i hat is the plamtifl’s Case“vour Hlon 20) MR. McAFEE: £ would like tor the jury to Cp cunt fit COURT. \H right. fet the yury step ont. Whereupon, the following. proceedings were had in bedbsence of the yury, to-wit: ) : Mi@ MéAFEE If your Honor please. the detendant pves-the Court to direct the tury to return a me ie fain 6 tor of the detendant upon the following gromnds = , ; 1i2a Proceedings No. 1. ‘There is no proof that the plasma given to the plaintiff contained a jaundice virus. I want to amend that by saving the hepatitis virus. . ; No. 2. There is no proot a virus in the plastia was the cause of.the plaintifl’s hepatitis. No. % ‘There is no prool the plasma received by the piaintif! Kidd was adulterated within the meanirg of the fennessee Food, Drug and Cosmetic Act. No. 4. Becatise the proot shows that in all Cases 0! transfusions of plasma there is a cale ulated risk involved thar ithe pi hasina may contain hepatitis and could cause the recipient to de velop jaundice or hepatitis, and this Fisk was known to and assumed by the plainuff. No. 5. Because the undisputed evidence shows that blood’ plasma ts used only, on orders of a doctor -and the / action of the plainvitt’ . doctor in ordering and giving t« _ transfusion of pli isma to the plaintitl constituted an inde "pendent intervening cause breakine the causal connection (130) between the defendant's act and the ultimate injury sustained by the plaintiff. a | ee, And, finally, because, there was no proof introduced upon whieh a verdict for the plaintiff can be sustained. (Whereupon,. counsel presented ora! argumént on the motion for a directed verdict.) ’ PHE COURT: | I will hear the proot ot the defendant Overrule the motion at shis time.’ Tt may be renewed Call-the jury | (Whereupon, the foliowing proceedings were had in. the presence of the jury, to-wit: ) 113a , Richard C. Sexton, Jv., alled as a witness by.and on behalf of the defend: ant, after having been first duly sworn, was eXasn- med and testified as follows: a DIRECT EXAMINALION by-Mr. McAfee: Q Doctor, Sexton, please state your full mame. . your we and your occupation: | { Richard C. Sexton, Jr; age 37: physician. ) Where did you get your medical ivaining, Doctor: \° University of ‘Tennessee. 5 Q Have you had any special training in any particular A31)° A Yes. IT specialize in the ficld of internal | ) How’ long: have you been pr: acticing medremer \ orca am and,a half years here in Knox- — Where are you t originally from? : From East Lennessece. : A ' § Union County N Yes, sir: —_ QO Doctor, would you please desc ribe for us just what ivirus is, a he patitis virus, if vou can, please, sir? A ‘The term virus is applied to an infectious. agent \ hich i is referred as being ultra- MICTOSCOPIE. -THE COURT: I cannot hear you distinctly. Wall you talk loude?, please: | THE WIINESS: The term virus is used in describing in infectious agent which is said to be ultra- NUCTOSCOPIC, that is, it Cannot be seen by the microscope, by the aid. of the mic TOscOpe, and that particular type of virus produces he clinicial disease which we refer to as viral hepatitis. 7 lida. tichard G. Sexton, Jr. — Direct Q Would you consider a virus which you have just described as a filthy substance or an adulterated substance: A Well, I think that depends upon one’s definition o! filthy and would depend upen the context in which the ‘virus was found fo exist. , | .. (132) 9) Let me ask You this question. Tf a virysas found in. blood, in a donor's Dtood, would you say that un- der the conception in the medical profession would you consider that as a filthy substance? oS eae “A 1 would preter to use the term contaminated. [ think in a medical sense I would not regard the plasma which contains a virus as being filthy except perhaps in a retro- spective sense. QO Explain that, Doctor. A By retrospective, I mean it may he apparent thre G or four months after the infusion of plasma is given, that it contained a virus, ‘but it would not be apparent by any available technique at the time it was given.’ Q That it was a filthy substance? A Yes, sir. | : : QO You regard plasma as a_ beneficial piBdyct in the practice of medicine? ) A Yes, sir. Q Do you use it in your practices A Yes.° mee Q Let me ask you this: Isn't it possible tor blood plasma to be given to one person and that person ima contract hepatitis and the same plasma trom the same batch be given to another person and the other person not col tract hepatitis? , (133) . A Yes. ° QO Why is that, Doctor? ie \ £ don't belicve that the exact reason tor that is }15a Richard °C, Sexton, Jr. — Direct | ‘ktown. Presumably it is related to SOME INL LUSH defense niechanism of the person who does not become infected. Q In other words, one person inight have some anti bales that build up-an immunity te the virus and -others might not, is that correct? . \ Yes, that 18 probably one mechanism. Q Can you think of others? \ I think there are probab ly others of which we are ” not aware of in the present state of our know ledge. Q Do you know of any method in which a virus can be destroyed or its harmful effects done away with in blood or blood plasma? Seat : \ To my knowledge there is no method by which ~ blood Can be completely rid-of the virus of hepatitis. « Q Isn't it a well kKhown fact among the medical pro- ‘ession there is always a calculated risk m giving: transtue “ae sions, “even of Ae blood and blood plas sina, that the 2 recipient may, contract hepatitis? é. \ Yes, sir. Pit MR. McAULEY: © Objected to as leading.‘ THE COURT: Overruled. : : By Mr: McAfee: (134) Q Is that trues { Yes, sir. , QO And that calculated risk is” recognized among the medical profession in this country: s A Yes, sir. ics, | QO Js there a difference hetweén the virus of infectious jepatitis and the virus of serum homologous? \ There is thought to be on what we'refer to as an cpidemmjology and hemologic basis. However, all attempts’ ‘0 grow the virus or to reproduce the disease in ‘experi. ental animals have heen unsuccessful. So it is true that o distinct viruses do -exist, however, absolute proof ‘of . Lloa Richard’ ©, Sexton, Jr. — Direct that fact is lacking. * Phat ‘differentiation jis based’ upon what we refer to as clinical grounds. Q How many different ways can a person contrac hepatitis? : AX Do you refer to the serum hepatitis? © Serum hepatitis. \ Well, [have nevei scopped to enumerate thé diftlerent methods, but we know that it is conceivable that a needle puncture or instrument mamncture of the ‘skin: under an\ circumstance# might conceivably convey the virus hepatitis to-the individual, or it can be acquired as a result of the breakdown of blogd products’ suchas thrombine in the ‘blood. Ce . Syringe hepatitis has beer described: as simply -(155) in- digating that the disease was acquired.as a result ofa needle puncture or as a vesult of contamination of the syringe which was used in administering these medications. QO People that are dope crate where they puncture the ‘skin, is that a source of 1 A Yes, cases have been oe in ‘dope addicts. O What about tattooing? , A Cases have been described following tattooing. QO Doctor, as you stated that, it is impossible to detect the difference between an infectious virus and a homologous serum hepatitus virus, how can you diagnose whether tt. - isan infectious hepatitis or homologous serum hepautis \ First of ail, | would like.to indicate that in my opi ion one cannot diflerentiate it to an absolute certainty unless one can be absolutely sure that the patient has not e been expose d by any of the aforementioned techniques te: the virus of serum hepatitis: if not, then there. right be question as to the exactness of the diagnosis | \s we previously mdic ated, in most inst: MCCS the diay no-- S18, the ‘clinical diagnosis, 1s based uper the appearance 6! re 3 /a~ 117a . Richard C. Sexton, Jr. — Direct. the patient, the nature of the, onset, whether of not the “onset is Instantancous 1 explosive; whether or not the onsct is featured by extveme temperature elevatidn, and whethe -or not the patient has received blood O} blood (156) products whichmight have contained the virus of serum hepauis, and, lastly, tlie period of ume that cfapsed bx ween Known exposure to a pat ient or person who. mas have acquired the form of disease “and the le Heth of time + which might elapse between giving the plasma or blood sr some blood product. . O° Suppose or assume that a person has been even a tramfusion of plasma in the hospital and within the incuba. on period of the time of, say, 60 to 120 days, he deve loped ahepatitis. How would you diagnose that hepatitis: \ The patient has received an infusion of pl sta? QO Yes, sir. A Within: the incubation period’ of serum hepatitis: QO Yes, sir. : oo : | \ Well, 1 would anticipate that the ia al onset of the disease. in. such patient would be insidious. Ihe patient would be very vaguely ill with a poor appetite, general ill eeling, perhaps’ with little or no tenmperature elevation, tor several ‘days prior to the time at which the disease reaches its recognizable clinical state. Often the patient is so ul ctor several days betore jaundice makés its appearance and, indeed, the patient may not become jaundiced. Ve Q How'would you know that patient had rot contracted Wedibes hepatitis. say, within 21 days ot that time: A Tf such a patient became acutely and explosive ly all one could not differentiate the two. (137) MR. Mc \F EE: 1 believe you may ask him. ¢ “18a Richard es. Sexton, Jr. — Cross j: ie “CROSS EXAMINATION - By Mr. Mec ie: — QO Doctor, is. theresa device known as an élegtron MLCTO- A Yes; sit. - - aay Q “Can a virus be photosr —— with that machine? os a. Yes, I believe so. eR 2) Possibly even thre hepatic’ virus? ze ~ A Possibly. T am not aware of a specific answer to that. con . Q Mr. Me ies ake Se about plasina containing the virus of serum | repatitls a id whether or not i> youl opinion ' that would be considered a filthy substance. © > @ l2la Richard C. “Sexton, Jr. — Redirect QO Andin each instance as to inceiee or not the plasina is to be administered ‘to a patient, that decision must be lett to the doctor: 7 Fae {= Bes “MR. WCAFEE: All right. , (dl) + RECROSS EXAMINATION - By Mr. McAuley: | QO Doctor, how does the virus aflect the liver, or the architecttre ofthe live) so to speak?” re oe A. Well, Lam-not sure that there is an absolute so-called structure pattern, however, ut produces evidences of in- ‘flammation. It produces what we.call round cell inhiltrg tion, which is one ol those évidences of inflarnmation, and in some’ patients of. course in which the disease 18 more’ serious there may be. actual death of sing Ul areas of lives tissue. Q Is it recognized that ae are three st: Ages, generatty . speaking, in the disease? Yes, sir.. Q Doctor, are you familiar with the use of blood plas- mia? | he \ Yes, sir. O How long have you been practicing medicine: \ Fifteen years. . ) Do you use blood plasma in your F practice e A Yes, sir, when necessary. - QO You consider it a beneficial remedy to be used 1 in the medical prote sion? | , A Inthe proper case, yes, si. QO Doctor Sienknecht, do you know of any method where the hepatitis virus can be destroyed in whole blood 01 blood plasma: A No, sir, I do not. 24a E. Charles Sienknecht, M.D. — Direct QO There Is none known to the medical SOCICLY at this “time? A Not without éndatigering the plasma. You .aean, and still keep everything else as it should be: Qs And still keep the plasina. A There is nowe that I know of. : Q There is no Known method at the present time where this virus can be destroyed without destroying the plasma: A Not absolutely. QO Can you describe torus just. what. this hepatitis. (145) virus is that exists? A Itis hard to:déescribe a virus, but a virus is a little or- ganism smaller than bacterium which produce or transmit disease, and can produce, I should say. 0 Would you say a hepatitis virus is a filthy substance? “A No, sir.-E would not, Q ° Why wouldn't you say it is a filthy substance, Doctor? A E think it depénds on. your detinitign of filthy. Q In your terminology and in the terms of medicine, cen you say. it? é A In mediicne: we use the term “contaminated” instead of filthy. It is a little snore accurate. I wouldn't say that a virus is 2a substance 6f contamination unle 25 it has been added. to something dready present. Q Is a hepatitis virus a natural product of the! blood: NX No, sir, but it Wiay exist without any symptoms what- ever.or any disease producing conciusions. QA person could have a Virus in his blood and never KNOW it: A ’ Yes. . -Q Doctor, is it possible = let me ask you this question Cres . 1irst. ‘ : : . 7 ° (146; Is there a calculated risk involved when you give a transfusion of whole blood or blood ‘plasma: » eas l25a- os : * FE. Charles Sienknecht, M.D. — Direct x. Ses, ST... cal QO. What is that risk, Doctor? > A + The risk of homologous serum jaundice and any re- action that might occur. [tis not the only one. ©) - That is a calculated risk that every doctor takes, or every patient takes that receives the blood when he takes: 4 transfusion? : . A Yes, sir.’ PN Q Doctor, is it possible tor a transfusion to be given-to Sone person andthat person contract ,aepatitis, and the same. plasma ‘given Lo some other person and the other person “not contract the hepatitis? | oF ae A ‘Yes, sir, LE would say it is possible. QO Why would that be possible, Doctor? -A It would depend upon the ability’ot the recipient to fight off the infection by that virus. The same dose of virus in every person does not produce the sainc disease. Q Some pergons y Have an antibody built up agaist It? ; | A Yes, sir: ‘heir resistance to this may be such they would: not ‘get .the disease. oe Q, Doefor, plasina ‘is only distributed to patients upon --a doctor’s prescription, isn't that correct: G47) -A ‘To the best of my knowledge. yes. sit MR. McAFEE; All right. ee (CROSS EXAMINA LION By Mr. MeAuley: ; O Doctor, -you.say there is no way to destro¥ the hepa litis Virus? | | | A 1 believe [ said absolutely, not absolutely destroy it. © Now. could you tcH-us what ts the incidence ot serum hepatitis viruis in the average population here in ¢ \ : : i26a E. Charles’ Sienknecht, M. Dd. _ C ross the U nited Statesr Would one in 200 strike you as a fair figure? : A 1, would not testify to that hgure but sounds ap proximately right. I am véally not exactly sure of, that / — Q Now, the risk of a person contracting fhe disease ts greater with plasma than it is with’ whole blood, isn’t 1? A Yes, sir.’ . ) (> “1f50 denors pool their bloor into one pool and from that pool injections or infusions are made after i has been “reduced to the powder form and then later restored true plasma, would the risk then not be 30 times or 25 times greater statistically, assuming that the one to 200 figure is correct; would not the risk be about 25 times greater from taking the plasma from this pdol of 50 than in (148) a single donor case: ) A It is much more commoti, sir. TL couldn't quote the .figurés. -T am not that much a mathematician, QT you use it from a hundred donors instead of fitt' you “ae double the risk? A The greater the pool the greater the possibility ; QO Uhé greater the pool. the greater the posstbilits of thaty -. * : hee | A. Yes, sir. ners: ea ees Q Do you have any knowledge concerning the cost. ot processing plasma: ; ‘A - No, sir. Q Would it be-niere economical to use a large group than a small group, in your “opinion, considering the fre- quency of cleaning the equipment and that sort of thing?-. A Thave no: idea. Vhat would-be entirely with. the facilities at hand, whether you could deal with .a darge 2zmount or a small amount. | een QO ‘It would be your guess that it sw6uld be more, eco. nomical te use the large group than the small group? v 127a E. Charles Sienknecht, M.D. — Cross : & \ TP think it would depend on the tacilitivs present. Here in Knoxville you couldn't get a large pool, there are not facilities lor at. and. that would depend on other cit: CUMstances. | - | . oO L. believe although is possibic. for one person (149) lo contract a disease. from the given pool yet another pel, son might not contract it, “is that correct’ \ Phat ts correct. . But in any event, barring any other source, i would cvsertheless be true that the one who did contract it got i - . from that place. would. it not: \ Hf there were ‘no othe: possible source Ot infection: Ves. sir . . Tt would be unquestionably from: that plasma even though some other person might not get ite ok No, sir, that as not true. [think it has been stated that every diagnosis of homologous serum: jaundice is madc on circtunstantial evidence. * There is no way you can be sure Ht is from the pli ISH? t Based on the in ia n period — ly, dian history: ) \ Yes, six. : And there is quite a difference betwee ni . the incuba tion period di the viruses. 7 : \ It is fo thought. QO 'Fhat is accepted in the medical profession, ds it now \ Not as a proven truth, becatise these viruses have’ nevér been studied to that extent. ] believe. QO But the effect of those “viruses have been studied: (TKO) AY ‘Yes, sir. and that is the way they base it AO “That is the w ay you go at it? \ Yes, sir. , 7 6 Q And about 412 to 28 days be about right tor*the in ae Céshation period of infectious hepatitis: % [28a M : E. Charles Sienknecht, M.D. — Cross . A I believe an average of three weeks. QO With respect to serum hepatitis, it would be a Jonge! period, say 60 to 120 days: - : o A.V believe the term three months is the average they used. | ~O IT believe you stated, Doctor, that rather than use the word filthy you would use: the word contaminated, pb that correct: | A I said that we tisually use that term im medicine rath er then the word filthy. | | ~Q. But the terra filthy might very well be ised in the ordinary, lay sense wich would have the same kind connotation of your use ef the word contamination wth espect to the virus: "A Well, that would be — of course, it wouldn't be pat ticularly a medical term ae QO But it would be an ordinary term. Aft could be used instead of QO The unscientific term: a; ae ond (151) QQ Are you familiar with the magazine, am | right on this, “Suygery for Gynecology and Obstetrics.” there such a public ation: St Ven, ar : eo G QO | Do you from time to time see that magazines \ Ty my specialty 1 don't read that particular magazine QO ‘Did you ever hear of.a Doctor if Garrott Allen? an A { have-read his works in othe magazimes, QO Have you read fis work recgntly as to liquid plasne: \ T have read articles by him on that, subject; ves. sir. O ‘at room temper: ature for six months MRO McAFER [f want to object. Plits is getting sito * And he advocated that pi. snia be permatted to stand 129a . oe . Charles Sienknecht, M.D. — C ross an entirely pnb subject. the, field of liquid plasina, it has nothing to do with this question. PHE COURT: That‘ testimony is not cofmpetent to. prové the truth of the statement in the pamphlet from which Mr. McAuley is reading, but it may be uséd to test’ the witness’ testimony — to test the knowledge of the wit ness on the subject under consideration and for that purpose only, ladies and gentlemen of the jury, By Mr. Nhe. Auley: (152) oO May I read you this, Doctor: Pooled liquid plasma. stored at room temperature ol 72. 95 degrees Fahrenheit six See or longer, is fully as Safe as whole blood insofar as transmission of serum hepatitis. as concerned.” | . . Have you seen that appear sas a sti itement ot the Board {| Regents of the American College ot Surgeons: \- No, sir. but have no connection with the \merican College of Surgeons. T wouldn't have bad any opportunity, -Nou have read of the six months pooled plasma proposition? % L have heard-ot this doctor's work. ves, sit. VIR. McAULEY: ‘The only reason I mention that, it as mentioned earlier by some of the witnesses that, there fas such a thing as sate plasma, and that. was the only rea son T mentioned it. - : We would dike to file this article as Exhibit No. & a (EXHIBIT NO. 8 was filed) RE DIREC 1 EX AMINATION Ry Mr. Me. \fee: ! , Q Did I understand you to say that every .diagnosis of hepatitis must be based on circumstantial evidence 130a o ° | KE. Charles Sienknecht, M.D. — Redirect A Every diagnosis of homologous serum jaundice is (153) made on circumstantial evidence: not infectious hepatitis. ° * OQ There is no absolute ctest Which you can make to diagnose homologous serum hepatitis: A No,-sir. » Q Now, Doetor Sienknecht, what are the advantages of blood plasma over whole blood? A. Its easy availability is the only one I know. | QO In giving transtusions of whole blood there ts quite 1 bit of iesting and time involved: A Yé6s, sir: 6) And in those cases where the patient must have blood and have it immediately, that ts the cases where the plasma COMES Lie é A Yes, sir. ames | QO. they used 1 it extensively on the battlefields in the | That is all. MR. McAULEY: ‘That is alls (Witness excused j = _ Robert B. Wood. M. Dz, called as a witness by and on behalf of the defend. ant, after having been ‘first duly. sworn, was ex amined and testified as follows: (154) . DIREC ! EXAMINATION By Mr. McAfee: Q Doctor Wood, would you please state your full namic - : and your age, sir. . A Robert B. Wood... What was the other question? * 13ha Robert B. Wood, M.D. — Direct QO Wh. it Is your age: \'F ilty: nine. » Wh: it is your present occupanon, Doctor? \ Physiciaw. OU How long have you been a-physiciany .: \ €sraduated in 1921. aA O° Give us a little background of your education, Doc- Lor. ; . \ dT studjed at the University of Pennessee for four years, Vanderbilt four, had intern training at New York, and general practice tor 10 years, limiting my work in the internal medicine field for the last twenty-odd years. Q How. long‘have you been practicing here in Knox: villes ; A Since 1923 | 77 ; Q Sie 19237 aes | tae. - | ee ee Q Doctor; are- you familiar with the use of blood plasmas | a . A Yes. “T have’ used it, | Q Would you consider blood plasma beneficial to (55) © practice af niedicine today? - Yes, at is quite helpful in certain types, certain cir cumstances. ; | @ Are you also familiar with the hepatius virus, Dac- tor? . é . A. Yes: TY have seen several cases of hepatitrs of various types. The titerature ¢ has been quite penta on hepatitis since World War IL. : | a Q Could you describe for us just wl hat. virus, what that virus Consists of, what it is?’ \ Virus is a classification of bacteria, It is a micro scCOpIC bacterium, that is, it is not visible-to the eye: it is ot visible under the normal ordinary microscope. . 192a , | Robert B. Wood, M.D. — Direct \ Tt is a very sniall organism and will pass through filters obit ar® use d for taking out. ordin: wy bacteria. QO. Is there any method known to medical science today to desi¥oy tdiat. virus without destroving the pli isa? A Ne. not with certainty; no, sir. Q Doctor, the virus that you have just described, would you call thi tha filthy substance: . A No. Medically, | wouldn't do so. TI wouldn't speak of it in-rhact term. 7 : O Doctor, let me ask you this: Is it possible for one person to take a draastusion of blood plasma dnd coneract hepatitis virus or hepatitis from yt, and another person to (154) take a transfusion of the same plasma and not con- tract the hepatitis: A . Yes. Q Why is that.true, Doctor? A Not over 50 per cent of the people injected with’ ) the’material that is known to contain the virus will develop it. Lhat is becaitse presum. ibly that some individuals’ have. “an imfaunity against the organism. O° Gthers don't? A. Others don't, that is tight. 7 | -Q Is that virus a natural condition in some people's - blood? oe ee te A . Twouldn't say it was exactly a natural thing but many _ people carry it without knowing it ‘and there is no way 01 discovering that they have it. Because, for instance, in tak- ing bloed from individuals there is no way ol determining who may have the ytrus in them because you can’t even inject and produce that condition in animals. Man is the only animal that has that particular disease. You can't’ transmit it to birds or.other types of animals. . -MR. McAFEE: ‘Thank you very much, Doctor. —— a> ° y _ Eugene S. Barclay: called as a witness by and on behalt of the detend ant, after*having been first duly sworn. was ex-. amined and testidaed as follows: DIRECY EXAMINATION by Mr. Cobura: eae Te : QO Mr. Batclay, will you please give us your full n@ne and your age and your vésidence address? A Eugene S. Barclay. 44..56-Ridenour Drive, Newtown Square, Pennsylvania. — QO And your age’ A * Forty-four. | (161; °Q Teowasmt sure that was your age or your ad. dress. By whom are you employed at the present me? A Sharp .& Dohmeé: Division, Merck & Gompany, In corporated. . | orn Q And inwhat capacityr —¢ \ Director af Biological Production: © And for what period oftme have you held that po- SILLONS | : A A Title more than three years. © And prior to that time, what position did you hold, immediately prior to that timer | "A | Assistant to the Director for 14 years. , MR. COBURN: If the Gourt please, I would like to file as No. 9 the photostatic copy with a stipulation as’ to its correctness of the license issued to the ‘Sharp & Dohme Division, Merck & Company. Incorporated, by the Depart: ‘nm vat ol Heal, Education and Welfare, under the Federal Virus Scrum Antitoxin Act for the production ol, among other products, normal human plasma. VIR. McANULEY: No objections EXHIBIT NO. 9 was filed.) « l37a « Eugene S. Barclay — Direct By Mr. Coburn ; 3 QO | Mr> Barclay, what steps. i any, do you pave to go "ines through Wn order bo secure a license of that type: \ In order.to secure a heense from the Ni ional | Institutes of Health for any product, it is necessary: to — QO - Excuse me License from the Department of Health, Fducation and: Welfare. and the National Institutes -ol Health is a part of that? : | [HE COURT: Read that answer, please. : Re (The answer was read.). . : -\ (Continuing) — ii is necessary to petition the Na- tional ‘Institutes of Health. describing among other things the name of the company, the address of the company, the product for which you wish a license. a complete processing - description of the product, the tests you’put it through, the expiration date, that the people who are doing the part, ‘ular ob are competent +1 think that, ir a-genéral way, covers — ite By Mr. Coburn: | . Q Mr. Barclay, | show you a decument which is entitled “Fede al Security Agency, Public Health Service, National Institutes of Health, Bethesda, Maryland, Minimuni Re: quirements, Normal Human Plasma. Oth Revision, May 15, 1952." andvask you if you can tell me what this docu- sment is? XN ‘These are the rules and regulations for de minimum requirements as: “required by+ the , National: Institutes ol Heajth in the production of this product.. It must ‘conform to all the-stipulations set forth ‘in this document. MR. COBL (RN M: iV 1 file.this also as Exhibit » vo. (163) iQ. , be eaibte Nor iO was filed.) 138a Q Now, you referred 40 your license. 1 kelieve that is issued by some Federal AGEICVE A That's right. ia : © T.was wondering if in that license which is issued by this Federal agency, there is any provision in there (166 which excuses compliance with the Pcnnessee Food. Drug \ ‘No, sir, net that T know of MR. MeAULEY: That is.all i EDIREC te 2 x AMIN: \l ON. By Mir. Coburn: rece : QO How long has Sharp & Dohme as the predecessor ot Sharp & Dohme Division, Meick %& Company. beer im the pharmaceutical business, do you know, Mr. Barc lay? A Fifty-nine years. . ta | MR. COBURN: | Phat is all. MR. McAUBEY: . Phat is all. (Witness excused. } MIR. McAFEF: Ineview. of the concession that has beeu THE COURT: Anything further for.the plaintitt MR: McAULEY: d would like to recall Mr. Kidd Floyd E. Kidd, |. . plainuff, recalled,-was examined and further tes- tified as follows: ; P DIRECT EXAMINATION 4° By Mr. Mi Auley: . {> Mr.- Kidd, follow: ing your rejease from. the hosp ioe . 4 ‘dla Flovd E. Kidd — Direct i March, March 17 on 18, along there, and prior to your subsequent adinission in. May of 1954, 1 will ask you where 167) you" obtained “your drinking water; what was the SOUTCES \ li was city water. Q Knoxvalte city water? 8 \ Yes, su. Q The same vou had used prev fously- j \ All my lite. "9 What about vour food supply, did it come fions the Sadie sour CS? : \ Yes, sir. The: A P store on North Broadway. - () ‘That is a plug for the A & P. Did you leave K nox- ville during that interim of the two periods of hospital- ization? : \ No, sir, | “ . ° You remamed hicre all the times A Here at all times. ee ae MR. McAULEY: ‘That is all. an cee: B -* MR: McAFEE: . That is all. * : . (Witness excused.) - ¥ S | MIR. McAULEY:, Plainutf rests, your Honer. . PHE COURT: - All right. Anything further: VIR. McABEE. No, nothing tufther. PHE COURT: ~ Let the jury: be excused temporarity. . (Whereupon, -the jollowing proceedings were had in ‘the AUSENEE of the jury.) ar, , “MR. McAFEE. If vour Honor please. we want to (168) renew our motion lor a directed verdict on the same grounds, and I will read them to you af you want them. PHE COURT: © You may treat them as read, and let the reporter, if vou desire. recopy your grounds. “¢ 7 aaa Proceedings é MIR. McAFEE: Mr. Reporte: , you will recopy the 1c- ion as it appears in Our previous 1miOtiON. “It your Honor please. the defendant moves: the Cour: 10 direc the jury to return a verdict in favor of the detend- ant upon the following grounds: No. |. ‘Uhere is no prool that the plasma given to the plaintiff contained a jaundice virus. | want to-amend that by saying the hepatitis virus. ie | No. 2. There is no proof ajvirus in the plasma. was the cause of the plaintiff's hepatitis, No. 3. There is no proof the plasma’ received by the plaintiff Kidd was adulterated within the meaning of the Tennessee Food. Drug and Cosmetic Act. ‘ No. 4. Because. the proof shows that in all cases of. tr ans- fusions of plasma there is a : calculated risk involved that the plasma may contain hepatitis and could cause athe recipient | to develop jaundice or hepatius. and this risk was known to and assumed by the plainut. No. 5. Because, the undisputed evidence shows that: blood plasma is used only on orders of a doctor and the ac: tion of the plaintiff's doctor in ordering and giving (169) the transfusion of plasma to the plaintif® constituted an inde- pendent intervening cause” breaking the causal connection between the defendant's act and the ultimate injury sus- tained by the plaintiff, ; And. finally, because there was no proof ae ed upon which a verdict for the plainuff can be sustained.” MR. McAFEE: | Do you want to hear an poumen on it? THE COUR [: Gentlemen, I am goeng to submit the- case to the jury. -_ | a (A discussion was had off the record.) MR. McAFEE: There is‘one other ground that we wan! to add to the motion for a directed verdict. MR. COBURN: The added ground is that uf the Ten l43a . _ Proceedings rossee Statute Is’ $0 constayicd as to bar ‘trom sale in Lennes- sco his product licensed by the Federal govermment under a Federal Act with full Knowledge on the part of the Federal governmental agency, then the “Tennessee statute is uncon- suifutional, i iHE COUR & Because you say the Government is 0c- Cupy ing that ground and itis over and above what the Siate does in the field which is presently occupied. | oMR. COBURN:. (1 am not saying Pa statute is uncon. satutional. .T am saying if it is construed to this meaning then becomes unconstitutional. (170) THE COURT: | Let that be added. Whereupon, counsel presented oral argument on the motion tor a directed Verdict.) ~fPHE COURT: Let's take a yecess, gentlemen. \ short recess was had’) a THE COURT: Call the jury in. , Whereupon, the following proceedings were had im the presence of the yury, to-wit:) - : THE COURT: © Now, Mr. McAtee and Mr. McAuley, | an delivering to the reporter the requests that I refused, and in order [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386418_1301%3A1. Public record. Not legal advice.