Experiment Eleven (26 page)

Moreover, the development of streptomycin into a therapeutically effective drug, ordinarily a long and difficult task, had been entirely Waksman's doing. They argued that the task would have taken much longer had Waksman not been a paid consultant to Merck & Co., whose chemists had taken the crude extract from Schatz and turned it into a drug.

If the case went to trial, they said, they expected to win. However, there was an image problem. The “psychological background” of the payments
to Waksman would be “a pivotal issue” in the trial. Rutgers and Dr. Waksman faced a potential public relations disaster. It might be better for everyone to settle the suit, they said.

As Rutgers had no experience of such matters, Merck's John Connor, then vice president and head of the law department, was invited to present a proposal for a settlement. In discussions with Waksman and Watson, Connor had suggested that Waksman share the funds he had received, and future funds, not only with Schatz but also with “all others who had aided him in the research project,” even the glassware washers in the laboratory.

In Connor's proposal, Schatz would now be only one recipient among twenty-four others, including almost everyone who had ever worked on antibiotics in Waksman's lab, and some who had never worked on streptomycin. The
redistribution of the royalties
took into account that Waksman, who had already received nearly $400,000, had volunteered to cut his share in half—to 10 percent. Starting from the fourth quarter of 1950, the proposal was to distribute most of the other 10 percent among fourteen of Waksman's researchers who had worked on antibiotics. Onetime bonuses, of up to $1,000, would be given to researchers who had been, in Waksman's view, less involved in the antibiotic program, like Doris Jones, but also included lab workers and Waksman's secretary.

In consultations among the lawyers the two sides proposed that Schatz should get the greatest share, after Waksman. He did, after all, risk his life. Russell Watson agreed “inasmuch as Dr. Schatz was one of the patent applicants, notwithstanding that in Dr. Waksman's opinion, Dr. Woodruff's contribution was more important.”

In return, according to the proposed deal, Schatz would drop the charges of fraud and duress against Dr. Waksman and would assign the outstanding foreign patent rights for Canada, New Zealand, and now Japan, plus “other foreign patent rights, if any.” For this he would be paid a lump sum of fifty thousand dollars.

Neither Schatz nor Eisenberg was privy to these initial consultations, so a draft was now sent to them for approval. Eisenberg pushed for more money for his client, of course, leaving the final amounts up to the judge.

The same group met again the day after Christmas. The trustees wanted to settle the case, but only if Waksman was “sincerely and enthusiastically” in favor of such a move. Waksman said he would prefer to “give
Schatz a kick in the pants” by going to trial, but he recognized that to do so would mean a great deal of “unpleasant publicity” for Rutgers, as well as for himself.

The lawyers for the two sides proceeded rapidly to settlement, a task that Watson undertook with “natural misgivings,” and he issued a personal statement to the Rutgers Trustees. He still felt that “neither Waksman nor the University had committed any moral or legal wrong” in their dealings with Schatz. The “failure to inform the public” of Waksman's private deal with the foundation “was a mistake, but this was hindsight not related to the legal or moral issues of the Schatz case.” He was “confident” that if the case had gone to trial, it would have been decided in favor of the defendants. Like Waksman, he yielded to others who feared the unfavorable publicity.

On December 30, the case was settled. Waksman's share was pegged at 10 percent. Since the sums would still be large, he arranged for half of that to be used to start another foundation—his own Foundation of Microbiology. As Hubert Lechevalier would put it, this new foundation would permit “him and Mrs. Waksman, with the assistance of three other trustees, to play the
role of Maecenas
.” Schatz was accorded the legal status of “co-discoverer” and given 3 percent of the royalties, or about twelve thousand dollars a year—more than twice his salary at Brooklyn College. He was also awarded $125,000 for assigning the foreign patents to the Rutgers Foundation. His lawyers took 40 percent. The other twenty-four past and present workers on Waksman's staff, many of whom had never worked directly on streptomycin, were awarded sums ranging from five hundred dollars to a smaller share of the royalties worth a few thousand dollars a year for the life of the patent, or fifteen years.

In a statement, Judge Thomas Schettino, himself a Rutgers alum, said he was “in the firm belief” that the settlement was “
an excellent one
” because it had been made in “a spirit of appreciation of the adversary's feelings and reputation.” He praised the attorneys for confronting the problem “in a spirit of cooperation and good will.” He had urged the attorneys separately to settle “if it could be done with grace and with credit to all parties concerned.”

Striving to be evenhanded with the two newly affirmed “co-discoverers,” he said that Waksman had “on many occasions proven himself a great humanitarian and a great scientist. The terms of this settlement add additional
prestige to his reputation.” In assessing Schatz, he deferred to the two principal lawyers. They had told him that Schatz had a brilliant record. “They advise me he will go far in his field. We wish him well.”

The judge beat the drum for his old college. “The Trustees of Rutgers University have shown once again how high is their caliber. I am proud to be, like Dr. Schatz and Dr. Waksman, an alumnus of this great State University. It has given generously of its funds to assist in the settlement. Such an act is worthy of its past record.” Rutgers' president, Robert Clothier, said that it had “never been disputed that Dr. Schatz was a co-discoverer of streptomycin.” That had been “
a matter of public record
since 1945, when Dr. Waksman and Dr. Schatz applied jointly for the streptomycin patent.”

Then Clothier gave the official version of the patent's history. Dr. Waksman's hopes of preventing a monopoly by assigning the patent to the Rutgers Foundation had been fully realized, he said. “In 1946 streptomycin cost more than $25 per gram; today it wholesales for less than 35 cents.” As streptomycin proved itself in 1947 and 1948, the royalties began to accumulate “in unanticipated volume.” This prompted Dr. Waksman to request the Foundation to reduce his participation from 20 to 10 percent.

THUS ENDED ONE
of the most contentious legal battles ever waged between a professor and his student. It was a stunning victory for Schatz and his colleagues. There seems little doubt that if he had not stood up to Waksman, then Waksman would never have felt it necessary to share his spoils with any of them.

On December 30, the
Newark Star-Ledger
editorial was headlined “He Finally Gets Credit.” It began, “It is heartwarming to learn that a 30-year-old Brooklyn College professor will share credit with Dr. Selman A. Waksman of Rutgers University for discovering streptomycin.” But, the paper added, “it will take more than
long-winded explanations
to convince the public that Schatz didn't suffer a grave injustice as a reward for his part in this important advance in medicine. A change in the system of crediting scientific discoveries so that the rewards are fairly distributed appears to be in order.” The
New York Times
quoted a statement by Schatz expressing his gratitude at being “recognized as the co-discoverer of streptomycin.” In agreeing to the settlement, he had been “
influenced by the fact
that the [Rutgers] Foundation and the public trust imposed upon it might be
jeopardized if the litigation were to continue to its ultimate conclusion.” The
Newark Sunday News
headline for December 31, 1950, was DR. SCHATZ IS MODEST IN VICTORY. The young man had sued “to win formal recognition as co-discoverer of streptomycin. He was a slim, attractive, boyish young man ... with a winning smile, a keen sense of humor and a ready tongue which delights in calling a spade at least a shovel.”

Albert Schatz and his lawyer, Jerome Eisenberg, after their victory. (Courtesy of the Newark Public Library
)

Russell Watson, who was prone to taking a lawyer's gloomy view of things generally, was especially upset about the
Newark Star-Ledger
's comment that it would take more than Rutgers's “long-winded explanations to convince the public that Schatz didn't suffer a grave injustice.” He would tell Waksman that, in his judgment, the newspaper accounts of the settlement generally “were grievously injurious to the University and to you, in less degree to the University than to you. How long this public impression will persist is uncertain.”

Doris Jones wrote immediately when she heard the news. “Needless to say I was extremely happy for you and Viv. It must be a wonderful relief from all the tension you were living under and besides who can sneeze at the monetary comfort. Achou! Rutgers must indeed be proud of you.”

Jones had saved a few clippings from the local papers. The general opinion was that Waksman “was a shrewd codger and you cleared away some of his manure pile to expose the true contents of the man.”

The
San Francisco Examiner
had called to interview her about receiving her five hundred dollars. She had been so astonished, she had told the paper it must have the story wrong. But since then she had received a check. Jones saw the payoffs as a “clear maneuver to present a more generous picture and to protect Waksman from further litigation.” The check and Clothier's statement “confirmed—or seemed to—my suspicions since Waksman expressed his ‘long-felt desire' to share the proceeds with the individuals working on streptomycin and the antibiotics in general.”

The “subtle part” for her, she said, was that the five hundred dollars was said to be a “flat payment” for her services for all work done up to October 1948. “I thus am
well hushed-up
should any other discovery become of financial value. Of course, I evaluate what I did at 2 cents and thus worry not a bit, but it certainly appears a stinking move—and especially so as Waksman presents the act as one of his own generosity, and Clothier bitches about how the suit held up the Inst. of Microbiology and lauds our fair boy [Waksman]. I guess you have seen the letters.”

In those letters to all bonus recipients, Waksman, as he put it, had distributed the money to three categories of workers: “1. Those who have played a major, significant and direct part in the isolation of streptomycin, its evaluation in vitro and in vivo, and in its utilization. 2. Those who have contributed, through their scientific work, to the development of the antibiotic program as a whole which had a bearing upon the isolation of streptomycin. 3. Those who have assisted faithfully in carrying out this program.” Jones qualified in all three categories. She had given Schatz the
griseus
culture from which he had isolated the D-1 strain. She had tested streptomycin in chick embryos. And she had assisted faithfully in the program. But Waksman had only acknowledged her “
faithful assistance
,” and she had received the same as the glassware washers.

___________

MOST OF THOSE
given awards accepted the money, even though several stressed they had not been directly involved in the discovery. Robert Starkey wrote Waksman that he was “very grateful for your consideration, and I am
not unmindful of the fact
that my direct contributions to the success of the project leading to the production of streptomycin were negligible.” Boyd Woodruff considered his award to be the “equivalent of a gift from you, since I did not work directly on streptomycin and certainly have
no direct claim
to the royalties.” One of the graduates, Dale Harris, thanked Waksman for “some of the
best years of my life
... your scientific curiosity, enthusiasm and integrity.” Others, like Jones, heard about their awards through their local newspaper.

Corwin Hinshaw of the Mayo Clinic was “
utterly surprised, even amazed
, that my name had entered into the settlement ... I would never in any way have pressed such a claim. I also have such deep respect for your scientific standing and for your thoroughly ethical conduct ... Several of my friends ... have shared my admiration of your willingness to forego [
sic
] the opportunity of becoming a very wealthy man in order to serve the interests of humanity. This adds significantly to your already established stature as a scientist and as a philanthropist in the truest sense of the word.”

Hinshaw's partner, William Feldman, was one of two to refuse the money. He
declined to accept
“any royalties from the sale of streptomycin or any other drug which I have studied experimentally.” His decision was “entirely personal and unequivocal. It has no relation whatsoever to the controversy which led to the court decree nor to any other persons involved in or affected by that decree.” He said his work on streptomycin had been “a genuine privilege” and had continued “to be a source of deep satisfaction to me personally.” He had used many substances from individuals and “pharmaceutical concerns” over the years of looking at TB, and they had been “supplied to us without charge and with complete freedom to work with and to report upon without restriction.”