Carter Products v. Federal Trade Commission, 12940.

• Decision Date: 13 March 1953
• Docket Number: No. 12940.,12940.
• Citation: 201 F.2d 446
• Parties: CARTER PRODUCTS, Inc., v. FEDERAL TRADE COMMISSION.
• Court: U.S. Court of Appeals — Ninth Circuit

201 F.2d 446 (1953)

CARTER PRODUCTS, Inc., v. FEDERAL TRADE COMMISSION.

No. 12940.

United States Court of Appeals Ninth Circuit.

January 19, 1953.

Rehearing Denied March 13, 1953.

Breed, Abbott & Morgan, New York City, Brobeck, Phleger & Harrison, San Francisco, Cal. (William L. Hanaway and Stoddard B. Colby, New York City, Herman Phleger and Alvin J. Rockwell, San Francisco, Cal., of counsel), for petitioner.

W. T. Kelley, General Counsel, FTC, Robert B. Dawkins, Asst. Gen. Counsel, Fletcher G. Cohn, Sp. Atty., and Jno. W. Carter, Jr., Attorney, FTC, Washington, D.C., for respondent.

Before HEALY, BONE, and ORR, Circuit Judges.

HEALY, Circuit Judge.

This case is before the court on petition to review and set aside an order of the Federal Trade Commission pertaining to a product labeled "Carter's Little Liver Pills, A laxative aiding bile flow."

In summary, the Commission found that the product does not stimulate the liver, aid the flow of bile, or have a therapeutic value in the treatment of any condition or disorder of the liver. The order does not prohibit the continued sale and distribution of the pills as a laxative, but does require the producer to cease and desist from all advertising claims relative to their therapeutic action on the liver or the flow of the bile, and it directs the excision of the word "Liver" from the trade name.

Questions pertaining to the sufficiency of the evidence or to the merits are not presented by the petition. What is claimed, principally, is that a fair hearing was denied petitioner in that the trial examiner unduly and prejudicially restricted its right of cross-examining certain of the Commission's expert witnesses upon whose testimony, in large measure, the findings and order were based.¹ The witnesses in question were Doctors Carlson, Bollman, Lockwood, and Case. We are of opinion that petitioner's claim is well grounded in respect of the three experts last named, but not in respect of the witness Carlson.

1. Dr. Carlson, a specialist in physiology, testified that Carter's pills, the ingredients of which are aloes and podophyllum, have no known therapeutic action over and beyond their laxative properties, and none upon the liver. He professed himself as being "pretty familiar" with the literature on the subject of the liver and the gastrointestinal tract, and said that it is the consensus of informed medical opinion that aloes and podophyllum are capable of no action on the functioning of the liver. On cross-examination he was asked whether he knew a Dr. Alvarez of the Mayo Foundation and whether he was familiar with the latter's book entitled "Nervousness, Indigestion and Pain," and he replied that he knew Alvarez and had read his book. He said Alvarez "is pretty well informed, but that does not mean that I regard him as sound on all points. I have differed with him on many things, particularly on motility of the gastro-intestinal tract." He added that in formulating his views he had not relied on the works of Dr. Alvarez. Counsel for the petitioner then proposed to read to the witness an excerpt from the book and to question him concerning the same. The trial examiner sustained an objection and ruled that in order to permit the reading of excerpts from a treatise into the record on cross-examination it must first be shown that the witness had predicated his testimony in whole or in part upon the particular book or the particular author.

Later on, counsel questioned the witness concerning a medical dictionary that apparently had the blessing of the American Medical Association, or at any rate of Dr. Fishbein, and offered to read from it. As regards this book Carlson said it was authoritative as a dictionary but not as a scientific work. The examiner sustained an objection to the reading on the same ground as before.

These are the only specific offers of this nature we have been able to find in the record in connection with the cross-examination of Carlson. A study of his testimony on direct shows that the opinions he expressed were based on his own knowledge and experience and on treatises of medical men, particularly those in the field of internal medicine, whom he regarded as informed on the subject. We are not prepared to hold that the rulings of the examiner in these instances amounted to an abuse of discretion. The general view is that medical treatises are not in themselves competent evidence, since they constitute statements made out of court by persons not available for cross-examination. A conflict of authority exists as to the use that may be made of them in the cross-examination of experts, many courts holding that they may not be used unless the witness on direct has based his opinions wholly or in part on a particular author, in which case the authority may of course be used for the purpose of contradicting or discrediting the witness.² Here, unlike the situation in Reilly v. Pinkus, 338 U.S. 269, 70 S.Ct. 110, 94 L.Ed. 63, no issue of fraudulent intent was involved.

Turning, however, to the cross-examination of the other experts mentioned, we think the rulings of the examiner tended to be insufferably technical where not wholly erroneous.

2. Dr. Bollman, called by the Commission, was a physiologist and biochemist of note. Among numerous other activities he served as an assistant director of the Mayo experimental research laboratory, organizing and carrying on a program which he said might be covered by the broad term "Experimental Pathology," embracing physiology, biochemistry and pathology. Most of his time had been spent in problems associated with the liver, and he had done considerable work on the gastrointestinal tract. A bibliography listing 166 of his published articles was introduced in evidence by the Commission.

A witness for the petitioner, Dr. Morrison, had testified to experiments and tests designed to show that the relief of constipation by Carter's Little Liver Pills stimulated the flow of bile. Dr. Bollman undertook to discredit the findings of Morrison by means of an elaborate statistical document or chart which he had prepared and which he said was a method of his own for analyzing and criticizing Dr. Morrison's experiments and data, this document, marked Exhibit 202, being received in evidence over petitioner's objection. On cross-examination relative to this method Bollman said he had used the identical method in analyzing data in some of the scientific papers he had written. His attention was called to one of his articles and he was asked whether he had treated the data in that instance as he did Dr. Morrison's data, and he replied that he had not. For the announced purpose of testing the validity of the method he employed in his criticism of Morrison's data he was asked the following question: "Doctor, there are 166 of your publications listed in Commission's Exhibits 194-A to O and I will hand you that and ask you to point out if you can wherein you used the method represented by Commission's Exhibit 202 for analyzing Morrison's data in any one of your 166 articles?"

The question was objected to by counsel for the Commission, and in support of his interrogation petitioner's counsel stated: "I think since Dr. Bollman has reported on 166 different subject matters in his publications, many of which contain tables and sets of figures which are set forth to portray findings of facts that he made in his experiments, and since he had been called upon by the Commission to analyze the data of one of my former witnesses and has done it in a certain way which he states is the proper way to do it, and since the one and only paper of Dr. Bollman that I have in my possession now has been presented to him and he has testified that he did not use that method, that he used for analyzing Morrison's data in the article, although it contained sets of figures, I want to know where he has used it in any other, and whether he used it solely for analyzing his figures, and data in any of the other 165 articles that he has written."

The trial examiner ruled as follows: "I am going to sustain the objection and put the burden upon you petitioner's counsel of proving that the doctor's method is inherently wrong, and I am going to further assume for the purpose of the ruling that this is a novel method that he has developed which to him in his scientific way makes him believe that it is sufficient, and so let the exhibit stand just as it is."

Insisting upon his right to inquire, petitioner's counsel indicated his willingness to take Bollman's "best recollection" of the number of times he had used his method in the past without requiring him to go through the whole list of articles. The examiner, however, declined to change his ruling. It seems to us that counsel was entitled to put the matter into proper perspective by inquiring whether and to what extent the witness' method conformed to standards employed by himself in other similar tests which he had performed. The ruling foreclosed inquiry along this line, and would appear even to have cut off effective cross-examination as to whether the method conformed to accepted technical and scientific standards.

Another instance of undue restriction of the cross-examination of Dr. Bollman will be noticed. This witness had performed a series of tests on dogs, the object of which was to prove that constipation has no effect upon the secretion or flow of bile. The dogs were anesthetized with ether. Their colons were surgically severed and the lower end of the intestine sewed up so as to bring about a complete intestinal obstruction or "obstipation," a condition which the doctor said does not exist in man. With no means of elimination, the dogs were regularly fed on a diet including glucose until in a matter of days they died or were destroyed. All had peritonitis at the time of death. The results of the experiments were ascertained by autopsies after varying degrees of post-mortem degeneration had...