Experiment Eleven

by Peter Pringle

  In a bizarre move, half in jest apparently, Waksman and Russell Watson formed the “W and W Sleuthing Agency.” Its goal was to “discover and prosecute all those malevolent persons who misuse their presence at the Institution for private and undesirable purposes.” The “Institution” the Rutgers college farm. The two officials of the agency were named as Russell E. Watson, attorney and chief prosecutor, and Selman A. Waksman, scientific sleuth. Its first report was titled “Information Gathered Concerning Dr. J.J. Martin.”

  “His name was J.J. March, but he had it legally changed to Martin,” the report stated.

  He claims to be a cousin of A. Schatz, a co-discoverer of streptomycin, and has been known to express that opinion to several people. He has worked for an Advertising Dentist Concern ... This is believed to be the poorest type of dentistry. Someone vaguely remembers that there was a dental technician that solicited patients for Dr. Martin saying that Martin did the dental work and he the technical work. It was also known that this technician has handed out his cards in such places as barrooms.

  A number of dentists in Passaic County were asked for an opinion of Dr. Martin. They were rather cagey in expressing such an opinion. They said they knew him as a fellow practitioner, but none had anything complimentary to say about him. They have no regard for him at all in the dental profession.

  In Report No. 2, a “search has been made” of the premises (of Bromberg and Associates) and the investigator was told that they were engaged in “some sort of advertising, mostly in foreign publications.” One office was a credit equipment corporation, the second a realtor. “No further information could be obtained concerning the above group.”

  Report No. 3 could “not find the company in any Directory or Publishers Weekly or Dunn and Bradstreet. Various banks have also been checked. They have no credit reference of any kind.”

  IN SEPTEMBER, SCHATZ came to New York to take up his new appointment as an assistant professor at Brooklyn College, and Bromberg had found him a Manhattan lawyer named Louis Libert. Schatz had no need to worry about legal fees, Libert reassured him. The case would be conducted on a contingency: Schatz would pay him only if he won.

  Libert quickly discovered, from Waksman’s federal income tax returns, that he had a personal income of $124,000 in 1948. The only conceivable source for the majority of it was a payment from streptomycin royalties, Libert concluded.

  At the end of November, Russell Watson agreed to an extraordinary meeting at the Union League Club, on East Thirty-seventh Street and Park Avenue in Manhattan. Waksman and Watson were on one side of the table, Libert and Schatz on the other. Schatz felt that they might want to settle their differences, as he was keen to do, but Watson quickly killed any chance of compromise. He offered Schatz one thousand dollars—a “nuisance value” payoff for his trouble in putting his signature on patents for foreign countries. The sum was not what Schatz and Libert had in mind. For all they knew, the foreign patents were earning somebody, or some corporation, millions of dollars. “The party adjourned to a luncheonette, and broke up,” Schatz’s lawyers recorded.

  The battle was on, and Libert felt he needed help. He contacted his friend Jerome Eisenberg, a quick-witted New Jersey trial lawyer. Eisenberg had made a name for himself mostly in tough civil cases—defamation, contested wills, tax appeals, and torts. During the depression, he had listed as one of his achievements that in New Jersey he had foreclosed more homes than any other lawyer. He was a legal street fighter and just the man Schatz needed. He agreed to take the case on contingency.

  Schatz told Seymour Hutner in New York, “The die is cast.”

  BUT ON THIS phony battleground, Waksman, with his superior arsenal, was to have the last word before he and Schatz were technically at war. At the end of October, the Royal Caroline Institute announced the winners of the 1949 Nobel Prize in Physiology or Medicine. The prize was given for advances in brain research, including the prefrontal lobotomy, then a last resort of schizophrenics and manic-depressives. The recipients were the Spanish neurosurgeon Dr. Antonio Moniz and the Swiss physiologist Dr. Walter Hess, a specialist in circulatory and nervous systems. But the scientist on the cover of the November 7 issue of Time magazine was Dr. Selman Waksman. And the headline on the article, inside, which ran over six pages in the Medicine section, was “The Healing Soil.” It was a story about antibiotics, and it mentioned Alexander Fleming’s penicillin and two new antibiotics by American researchers, but it concentrated on Waksman’s “discovery” of streptomycin. Albert Schatz was not mentioned. The intent of the story seemed to be that Waksman should be next for the Nobel Prize.

  The story began with a public relations lie, put out by Rutgers’s PR Department. According to the story, Waksman had almost been fired at the start of World War Two when Rutgers was looking to make staff cuts. Why should it continue to pay a soil scientist who was “playing around with microbes?”—and being paid $4,620 a year to do it. “Fortunately for mankind,” Dean William Martin had “saved Dr. Waksman from the ax,” and it had paid off handsomely—streptomycin’s “harvest of pennies” from the royalties had already brought Rutgers more than two million dollars, and more was on the way. Waksman’s salary was ten thousand dollars, and he assured Time’s correspondent, “Rutgers won’t let me starve.” A footnote said that he might even “get a percentage of the gross take.”

  Waksman knew that the story of his almost being fired had been made up by an overeager Rutgers PR man, but he did nothing to correct it. He did write a letter to the editor of Time, though. The original story as published had not mentioned Schatz. Now, Waksman asked that “the names of the students most closely associated with the isolation of streptomycin in 1943” be recognized.” He named them, in the following order, as Miss Doris Jones, Dr. Albert Schatz, Miss Elizabeth Bugie, and Dr. H. Christine Reilly. And Time published his letter in the November 28 issue. There was also a reader’s letter that began, “I was delighted to see the face of Dr. Waksman peering from the cover of Time. The pictures of politicians, prizefighters, musicians, models etc are all right their small sphere; but the work of men like Dr. Waksman, which results in good for all mankind, regardless of race, creed or color, is of much greater importance.”

  16 • The Road to Court

  JEROME EISENBERG liked the Schatz case. As a trial lawyer, he was drawn to the “David and Goliath” aspect, as he crudely put it. Libert warned him that Schatz had no money, but Eisenberg agreed to take the case on contingency—if Schatz passed his legal litmus test. He wanted to evaluate Schatz’s credibility, appearance, personal history, good faith, social life—no “extra-marital affairs”? It was the kind of thing he usually asked his clients. Most important, he wanted to make sure Schatz would not be “taken for a communist.” Vivian had worked for civil rights and left-wing causes; although Schatz’s sympathies lay in that direction, he had never joined any groups. In the face of demands that professors take loyalty oaths, Rutgers “blew with the wind. They were conservative when it was fashionable and liberal when the pendulum swung the other way,” Hubert Lechevalier, one of Dr. Waksman’s graduate students, later recalled. It paid to be prudent. If the Rutgers authorities had the slightest suspicion that Schatz was a “fellow traveler, red, pink or otherwise,” Eisenberg said, the case might be lost on that count alone.

  On February 13, 1950, Schatz spent twelve hours with Eisenberg in his Newark office. He gave the lawyer a quick course in how to find an antibiotic in a thimbleful of farmyard soil, and Eisenberg outlined the case he thought he could bring. He would charge Waksman with fraud and deceit for hiding the money he had received from the patent. And he would include the Rutgers Research and Endowment Foundation in the suit. At the end of the session, Eisenberg was satisfied that Schatz would make a “most credible and intelligent” witness. “His honesty was evident in his appearance and candor. He would answer questions truthfully and responsively; he had no skeletons in his closet.”

  However, there were tricky legal issues that
made this more complicated than Eisenberg’s previous civil cases. For example, who had originally held the patent rights? Did Schatz have rights as a student in a college laboratory whose research was part of his course for a doctorate? Did Waksman have rights as a member of the college faculty? If Schatz was paid a tiny wage, in addition to his stipend, by the college for looking after the plants in the greenhouse, not for his lab work, did the “shop rights” doctrine apply, giving rights to the employer? Was Schatz obligated to assign patent rights to the college that employed him?

  Like a good trial lawyer, Eisenberg examined all angles, even the improbable ones, such as the question of fraud perpetrated on the U.S. Patent Office. If it could be proved that Schatz was the lone discoverer in patent law, and that Waksman had no part in it, then the patent itself might be void, a matter that would have to be decided in federal court. If a federal court held the patent void, who would then be entitled to claim the royalties already paid to the Rutgers Research and Endowment Foundation? These royalties could not be returned to the purchasers of the drug because many of the consumers could not be found. Would the royalties remain with Rutgers? Would Merck, a licensee of the patent from Rutgers, be entitled to the return of any of the royalties?

  Schatz was troubled by the discussion. Eisenberg judged him to be in a state of “moral torment” over whether he should be receiving royalties at all. And he could not, of course, even assure Schatz that, if the patent were to be found void, he would be entitled to any of the royalties. Despite assurances of the contingency basis of the arrangement with Eisenberg, Schatz was still worried that he might be incurring expenses from his own pocket, which was nearly empty.

  The threatened departure of Waksman for a European tour, which would put him out of reach for a few months, persuaded Eisenberg to draft a complaint without delay. It alleged that Schatz and Waksman were “co-discoverers,” as the patent application had shown; that Schatz had conducted experiments that “led to the isolation and discovery” of streptomycin; that these experiments were “checked and confirmed” by Waksman, who “collaborated in the further development of the drug”; that for some time there existed a “close personal relationship” between the student and his professor; and that on February 9, 1945, they applied together for a patent that Waksman said was to prevent others from gaining a monopoly, controlling the price of the new drug, and profiting from it. Then, “on or about May 3, 1946,” Waksman asked Schatz to assign the patent to the Rutgers Foundation, and “by virtue of [Waksman’s] power, position, and influence in the field of microbiology and the world of science, as contrasted with Albert’s youth and inexperience,” Waksman threatened that if Schatz did not sign over the rights, Waksman would “see to it” that Schatz would fail to gain employment in the scientific and professional field for which he had been trained and that no reputable institution would employ him.

  As “co-discoverer,” a fact admitted by William Martin, dean of the College of Agriculture, in his reply to the Bromberg letter, Schatz “was and is the owner of a half interest in the royalties from the patent,” Eisenberg asserted. Waksman had represented himself “to be the sole discoverer” of the drug and “had reaped rewards” not shared by Schatz. Finally, and brashly, the complaint demanded for Schatz half of the payments made so far to his former mentor.

  REPORTS OF THE suit appeared on March 10 in the New York Daily News and the Newark Evening News under the headline “Suit Accuses Waksman: Former Student Says He Discovered Streptomycin, Demands Accounting from Foundation.” The next day, the story appeared in the New York Times, the New York Herald Tribune, and halfway across the nation in the St. Louis Post-Dispatch. In Schatz’s hometown paper, the Passaic Herald-News, the story ran under the headline “Ex-Passaic Man Sues for Profit of Wonder Drug.” Initially, Russell Watson said the claim was without merit and would be “vigorously contested.” Contacted at his home in Brooklyn, Schatz declined to discuss the case.

  In the New York Times, Watson pumped up his response, calling the suit “baseless and preposterous.” Streptomycin was the result of nearly thirty years of “continuous, systematized” study by Dr. Waksman, he added. “Dr. Schatz was one of about twenty graduate students who aided Dr. Waksman from time to time in the study of this problem ... He assisted in the prosecution of a definite part of a comprehensive plan utilizing technical procedures devised and directed by Dr. Waksman, based upon his many years of scientific research and experience in microbiology ... The trial of Dr. Schatz’s unfounded action will conclusively demonstrate that his charge is false.”

  DORIS JONES WROTE Schatz as soon as she read the news. Again she pledged support, but she also warned of the risks.

  “Dear Alberto,” she wrote, “I can understand now why you haven’t let the Western outposts know of your doings for the past few months. I certainly hope the whole thing turns out a great success—moral and otherwise. You know exactly how my sentiments, opinions etc., etc., go, and if I can be any help, Al, don’t fail to call on me. I hope, if you still need them, the records are still on file where they ought to be.”

  She was willing to be a witness if needed, she said, adding, “I suppose you must consider you have an airtight case to attempt anything like a suit against the hierarchy of Rutgers.” But she worried that somehow he might, as a result of the lawsuit, “get involved in commitments to others”—i.e., lawyers. “But then there’s no need to worry about you because you are possessed of a great deal of common sense.”

  A few days later she wrote again. Schatz’s suit had “certainly stirred up a tremendous amount of talk in the circles of science.” She had spent several long hours explaining to one colleague how Schatz had “come to blows (legal) with Waksman.” But she warned Schatz that the reception to the lawsuit was not good. She was beginning to hear Schatz’s reputation being put on trial. “You are being judged quite arbitrarily by men who consider your actions to be one of a money-grabber. Of course, everyone has a right to do what he wants with his own life—and his own money, and you are the last person I can imagine who would be out to claim money for money’s sake.” Another of her colleagues had observed, “Doesn’t he [Schatz] realize that whether he is right or wrong he has ruined his reputation as a scientist!” Jones added, “I’m sorry to hear that, too, Al.”

  Jones pressed the point, as a friend. “Whether you are right or wrong in the eyes of the law, people out here do not interpret your action as anything but an attempt to grab onto money,” she wrote. “That, Al, is very unfortunate insofar as your professional career goes.” As far as she knew from the newspapers, Waksman had given all his money to research.

  “Despite what we know of Waksman’s character,” she continued, “of what happened along the pathways of streptomycin development, it does remain a fact that he assigned all the money to a foundation for the furtherance of science. That fact puts him in a good light with all the men in science—and you, on the contrary, are painted as the cheap charleton [sic] who is jumping on the bandwagon for $$.”

  Perhaps, she suggested, Schatz should make some statement to the effect that any money he received would be turned over to some scientific foundation. “You wouldn’t look so bad.”

  AS EXPECTED, THE scientific establishment rallied behind the master, with several of Dr. Waksman’s colleagues sending him effusive letters of support. Of course, they did not know that he had been secretly enriching himself.

  One of the first to write was Dr. A. J. Goldforb, Waksman’s good friend and the editor of the Proceedings of the Society for Experimental Biology and Medicine, which had published the first paper announcing the discovery of streptomycin in January 1944. He called the lawsuit “scandalous” and offered any help needed. Dr. Arthur Wright of Albany Medical College was “very sorry that Dr. Schatz ... has debased himself by taking the action he has.” And Dr. Stanley Thomas of Lehigh University, in Bethlehem, Pennsylvania, was “shocked” to read of the suit. As an admirer of Waksman’s, he was “convinced, without kn
owing any of the particulars, that it was this generosity on your part that made the present situation possible.” In other words, he believed the publicity about the million-dollar gift.

  William Steenken, head of The Trudeau Laboratory, in Saranac, New York, agreed with Waksman that Schatz “had no right to claim any part of the proceeds of the drug. Since this money is not being used by you personally [emphasis added], but is going to Rutgers where Doctor Schatz was only a graduate student working on a specific part of your overall program, I cannot understand how he could accept payment under the circumstances. To take such a stand is certainly unethical.” In his summary of Steenken’s letter that he sent to Russell Watson, Waksman omitted the key phrase “Since this money is not being used by you personally.”

  Watson was less impressed by these letters than his client. Sooner or later, Watson knew, Waksman would be forced to reveal the royalties he had been receiving. He wanted Waksman to draft a statement in preparation for that moment.

  Waksman still hoped it would not be necessary to issue such a statement, but just in case, and as he was about to depart for his European tour, he sent Watson some “suggestions.” First, he said, the statement should point out that since the beginning of the antibiotic hunt, in 1940, he had received “several highly lucrative offers” from American drug companies, but he had decided to stay at Rutgers “at the modest salary” the university paid. Second, he had “never expected nor did I want any additional compensation for my scientific work.”

  In “private conversations” with the Rutgers Comptroller, Waksman continued, “it was agreed that while most of the funds accruing from ... patents should go to Rutgers University, a certain percentage” of such funds would be turned over to him for distribution as “I see fit.” When it later became apparent that the sums accruing from the streptomycin patents might “become quite excessive ... I took a voluntary, and quite appreciable, reduction in my compensation.” In reality, Waksman had volunteered to cut his share only after he had received Schatz’s letter of complaint in January 1949.