505 F.2d 565 (4th Cir. 1974), 74-1230, United States v. Abbott Laboratories

Docket Nº:74-1230.
Citation:505 F.2d 565
Party Name:UNITED STATES of America, Appellant, v. ABBOTT LABORATORIES, a corporation, et al., Appellees.
Case Date:October 02, 1974
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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Page 565

505 F.2d 565 (4th Cir. 1974)

UNITED STATES of America, Appellant,

v.

ABBOTT LABORATORIES, a corporation, et al., Appellees.

No. 74-1230.

United States Court of Appeals, Fourth Circuit

October 2, 1974

Argued June 4, 1974.

Certiorari Denied March 24, 1975, See

95 S.Ct. 1424.

Page 566

[Copyrighted Material Omitted]

Page 567

Howard E. Shapiro, Atty., U.S. Dept. of Justice (Thomas E. Kauper, Asst. Atty. Gen., and Roger B. Andewelt, Atty., U.S. Dept. of Justice on brief), for appellant.

George M. Burditt, Chicago, Ill., for Abbott Laboratories and Thomas F. Ellis, Raleigh, N.C., for Herbert M. Gross (James R. Phelps and Burditt & Calkins, Chicago, Ill., and James C. Little and Hatch, Little, Bunn, Jones, Few & Berry, Raleigh, N.C., on brief), for appellee Abbott Laboratories; (Maupin, Taylor & Ellis, Raleigh, N.C., on brief), for appellee Herbert M. Gross.

Lucas, Rand, Rose, Meyer, Jones & Orcutt and Louis B. Meyer, Wilson, N.C., on brief for appellee Clarence J. Endicott.

Lindsay C. Warren, Jr., John H. Kerr, III, and Taylor, Allen, Warren & Kerr, Goldsboro, N.C., on brief for appellee Robert T. O'Donnell.

C. Kitchin Josey and Josey & Vaughan, Scotland Neck, N.C., on brief for appellee Robert H. Otto.

John R. Jolly, Jr., and Spruill, Trotter & Lane, Rocky Mount, N.C., on brief for appellee Harry Howell.

Before WINTER, BUTZNER and WIDENER, Circuit Judges.

WINTER, Circuit Judge:

The government appeals from the district court's dismissal of a sixty-count indictment charging Abbott Laboratories (Abbott) and five of its current or former employees with causing the introduction into interstate commerce of adulterated and misbranded intravenous solution drugs in violation of 21 U.S.C. 331(a). The district court dismissed the indictment (1) because of prejudicial pretrial publicity released by the special prosecutor in answer to an inquiry by a newspaper reporter, prejudicial publicity contained in a press release

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originating from the Department of Justice, and prejudicial publicity contained in another press release originating from the Food and Drug Administration (FDA), and (2) because the grand jury which returned the indictment, at the instance of Department of Justice attorneys, considered 'prejudicial and inflammatory' information not relevant to its inquiry, which caused it to be biased in derogation of the constitutional rights of the defendants. We think that under the facts of the case, dismissal of the indictment was too drastic a remedy for what misconduct on the part of the government occurred and that the challenged evidence considered by the grand jury was relevant to its investigation and proper to be considered by it. We reverse and remand the case for further proceedings.

I.

In December, 1970, the Center for Disease Control (CDC) of the United States Public Health Service investigated an increase in the incidence of blood poisoning among hospital patients. CDC concluded that between October, 1970, and March 1, 1971, one hundred fifty cases of blood poisoning and nine deaths had occurred in eight hospitals among patients who had received intravenous fluid therapy employing intravenous fluids and intravenous fluid systems manufactured by Abbott. CDC investigators found bacterial contamination of the cap liner in unopened Abbott bottles of intravenous solutions, and they postulated that 'the organisms can enter the fluid from the plastic cap liners when the caps are opened and replaced while the bottle is held for later use.' The report of these findings received national media coverage describing the illnesses and deaths and isolation of the 'guilty germ' in the cap liner of Abbott bottles. On March 22, 1971, Abbott issued a nationwide recall of its intravenous solutions.

FDA recommended to the Department of Justice that Abbott and those of its employees 'responsible' for distribution of the allegedly contaminated intravenous solutions be prosecuted. The matter was presented to a grand jury in a district in which Abbott manufactures intravenous solutions, and the indictment was returned on May 29, 1973.

A. Post-indictment Publicity.

As soon as the indictment was returned, the United States Attorney for the Eastern District of North Carolina notified the news media that he had a press release concerning the indictment. The news department of a Raleigh television station requested an interview with him. The request was granted and the interview held at about 2:00 p.m. in his office. Two special prosecutors from the Justice Department and an attorney from FDA were also present. The interview was conducted in three stages by a television newswoman from the local station. There was first an off-camera interrogation of the government attorneys by the correspondent. Then there was a taped interview of the U.S. Attorney, at which he answered questions that had been submitted in advance. After the taping session, the correspondent continued to interrogate the attorneys for a time.

During the pretaping interrogation, the correspondent asked whether any deaths or illnesses were attributed to the misbranded drugs. One of the special prosecutors replied that 'the Center for Disease Control in Atlanta previously reported that nine deaths occurred in 1971.' During the subsequent taping session, the correspondent asked the same question of the U.S. Attorney. Not expecting this question to be asked, he replied that the indictment had nothing to do with any deaths. Following the taped interview, the correspondent continued to ask questions concerning deaths attributable to Abbott's intravenous solution. The answers, in substance, provided the same information as the answer quoted above.

On the six o'clock news that day, the Raleigh TV station broadcast a news report

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concerning the indictment, which contained the following statements:

Nine deaths and four hundred illnesses have been attributed to contaminated drugs made by a North Carolina company.

. . . an

. . the drugs were manufactured by the Abbott Laboratories Hospital Products Division of Rocky...

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