In 1958 the Federal Trade Commission first charged the five companies with monopolising the tetracycline market. An FTC hearing examiner dismissed the charges in 1961. However, on a review of the hearing record, the full five-member commission held that Pfizer and Cyanamid had committed fraud on the Patent Office and that the five defendants had conspired to fix prices on tetracycline.16 It ordered Pfizer to license the drug to all requesting companies at a 2.5 percent royalty. The Court of Appeals for the Sixth Circuit vacated the commis­sion's findings on the ground that procedural defects had tainted the commission's determinations.17 When heard again in the FTC before a different examiner a finding of fraud on the Patent Office was again made. September 1967 saw this decision upheld by the full commission; but on a split vote, it found against the existence of a conspiracy to fix prices.1" This decision was affirmed by the US Court of Appeals, Sixth Circuit, on 30 September 1968, and the requirements for Pfizer to license competitors at a 2.5 per cent royalty stood.19
After the 1967 guilty criminal verdict antitrust treble-damage suits began to flow in, finally totalling over 160. They came from private hospitals, health and welfare funds, unions, state govern­ments suing on behalf of their citizens as a class, the US govern­ment, and the governments of Iran, West Germany, Colombia, the Philippines, India, Spain, South Korea and Kuwait.
These cases have been a never-ending judicial nightmare. Already settlements in excess of $250 million have been paid by the companies. A number of litigants, including the US government, push on. The US government suit alleges overcharges and pre­judgment interest on tetracycline sales to the government of $376.5 million. It is believed that the impossible burden of the tetracycline litigation was a factor in the ill-health which led Judge Wyatt to be relieved of responsibility for the antitrust suits which had not been settled. His place was taken by Judge Lord who applied extra­ordinary procedural innovation to the 58 unsettled cases handed to him in 1970. We saw the remarkable courtroom scene of two different trials in six different cases proceeding at once. Some of the hearings were attended by more than a hundred attorneys.
'Jury One' was hearing evidence in actions brought by the United States, two national classes (one of insurance companies and the other of union health and welfare funds), and a California medical group. 'Jury Two' was hearing evidence in suits brought in behalf of competitors of the defendant drug companies. For the most part, the juries were hearing evidence common to both sets of cases. When evidence was introduced that was relevant to only one set of cases, the other jury would be excused (Wolfram, 1976: 254).
A unique judicial organization proliferated around Judge Lord. As the evidence and arguments about theories of damages and liability became more complex. Judge Lord, on May 10, 1971, appointed two experts as his personal consultants on economics and statistics, the costs to be shared equally by plaintiffs and defendants (Wolfram, 1976: 313-4).
As discovery in the various cases proceeded through the summer of 1971, Judge Lord was confronted with a number of motions and other signs of conflict about discovery. The plaintiffs filed very broad requests to produce documents, and the defendants responded with sweeping claims of privilege, primarily because of alleged attorney-client relationship, but also on trade secret and related grounds. Various privileges were claimed as to several hundred thousand documents. In order to deal with the issues that the objections raised, Judge Lord, on August 5, 1971, appointed a three-member team of discovery masters to make preliminary rulings on privilege and to make recommendations to him (Wolfram 1976: 314-15).
In spite of the time saved by this brilliant streamlining, the corporate defendants were able to effect a six months' delay in 1971-2 by petitions of mandamus challenging Judge Lord's ability to be impartial. Nevertheless, the tetracycline class actions are a landmark in the way that seemingly unmanageable legal tangles of unprecedented magnitude can be solved with a sufficient will for procedural innovativeness. The manageability problem is of course compounded when the defendants have an interest in perpetuating it. One tetracycline defence attorney calculated smugly that it would take Judge Lord 8,000 years to try all the consumer damage claims. Again, one can do no better than quote Wolfram (1976:344) as to how the judge managed to find simple solutions to complex detail.