You would agree on that, would you not, Mr. Cassedy?

Mr. CASSEDY. I would not say that his failure to keep up that study changed anything with relation to what he had learned during the time he made that study.

I also add that that criticism could not be interposed against Dr. Hanzlik, because he is acknowledged as one of the outstanding experts in that field. His testimony is also on file here for your consideration.

Mr. O'HARA. I just wondered if the decision on the Larned case was based upon the testimony of Dr. Payne.

Mr. CASSEDY. There has been no decision in that case. is pending.

That case

Mr. O'HARA. Well, I have had experience in the qualification of expert witnesses, both medical and otherwise, and I certainly was not impressed, not saying this in reflection upon Dr. Payne or upon you either, Mr. Cassedy, but as to his qualification as an expert on the subject on which he was was apparently attempting to testify, which would justify a trip to Los Angeles for the group necessary to take his testimony.

Mr. CASSEDY. Mr. O'Hara, there were so few experts on the subject of acetanilid that we thought it best to get as many of them or all of them that were in existence.

From my knowledge, Dr. Payne was one that was in existence, and we could get him, so we took him for what he was worth. You have done that, I am sure, in your cases.

Mr. REECE. Did you say a while ago that you considered him one of the outstanding specialists in the field of acetanilids?

Mr. CASSEDY. I said that the work he did and the report he made in the medical association journal, the article that he wrote, was considered one of the best that has been done by scientists in that field, and it is so regarded.

Let me say this: His testimony is not in any sense in contradiction to the other scientists against whom you could not make the same objection.

Dr. Hanzlik, as I cited you, is in exact accord with Dr. Payne.

Mr. REECE. You do not think you could have found a doctor nearer than Los Angeles that had been as well qualified as an expert as he? That is, you had to travel to Los Angeles to take his testimony because of its superiority over the testimony of any doctor available in the East?

Mr. CASSEDY. Yes.

Mr. REECE. Do you think you could have found in the medical association somewhere nearer than Los Angeles, particularly on the eastern seaboard, a witness who was as well qualified on this subject as Dr. Payne?

Mr. CASSEDY. I think we can now, sir. The fact that we could not at the time of taking his testimony, was because other experts that might have been available were then in the Army and out of the country, and we could not get them until they returned.

They have returned and we intend to get them.

Mr. SADOWSKI. We have had two other witnesses on that same subject, have we not?

Mr. CASSEDY. We have had numbers of them on bromides, but only two on acetanilid.

Mr. REECE. The thing that impresses me: Take in the matter where the Federal Trade Commission instituted a proceeding here, where I assume it required an examiner and an attorney, and then an attorney for Miles Laboratories to be in attendance at the hearings. Two witnesses were in Tuscaloosa, one was in St. Augustine, Fla., one was in Warren, Pa., one in Washington, D. C., one in Baltimore, one in Dallas, one in Los Angeles, and one in San Francisco. That would appear to be a wide area which you covered, since all you had were competent specialists it would seem as if they might have been found in a more restricted area.

Who was the one in Los Angeles?

Mr. CASSEDY. Dr. Payne.

Mr. REECE. Hanzlik was in Los Angeles?

Mr. CASSEDY. No, Dr. Payne.

Mr. REECE. The San Francisco one?

Mr. CASSEDY. I think you will find there were two at Los Angeles, Dr. Burns and Dr. Payne.

Mr. REECE. And in San Francisco, one?

Mr. CASSEDY. That is correct.

Mr. REECE. Now these were all medical witnesses?

Mr. CASSEDY. Yes, sir.

Mr. REECE. Testifying on the therapeutic effect of acetanilid? Mr. CASSEDY. Only Dr. Payne and Dr. Hanzlik testified regarding acetanilid. The others testified regarding bromides, not only on the therapeutic effect but the toxic effect.

Mr. REECE. That is, these medical witnesses testified on the bromides and acetanilid? The first thing that impressed me in looking over that list of witnesses and the places where the testimony was taken was traveling over such a wide area of the United States and right in the midst of war when travel was tight. I was wondering if qualified witnesses could not have been found in a more restricted area and closer home, so to speak.

Now, take Dr. Hanzlik, a man doubtless well trained; and who has been at the Stanford University for how many years?

Mr. CASSEDY. I do not recall, but he stated that.

Mr. REECE. Well, a long period of years. He does not seem to have a medical license in California.

Mr. CASSEDY. He is not practicing medicine, Mr. Reece.

Mr. REECE. He states that at no time has he administered medicine

to human beings.

Mr. CASSEDY. He is a pharmacologist.

Mr. REECE. He is not an M. D.

Mr. CASSEDY. He does not administer medicine to people.

Mr. REECE. He is not an M. D. then?

Mr. CASSEDY. I do not recall, but he is not practicing medicine. The testimony will show whether he is an M. D. or not, but he is not practicing medicine.

He is teaching pharmacology at the Stanford University Medical School.

Mr. REECE. But after reading his testimony and Dr. Payne's, I was wondering what particularly qualified them that would justify the

Commission in incurring the expense and the putting of companies involved to the expense of going to Los Angeles and San Francisco to take their testimony unless it was on the basis that there was no one on the eastern seaboard that was qualified to speak on those subjects as those doctors.

Mr. CASSEDY. There were none as well qualified on the eastern seaboard at that time that were available.

Mr. REECE. I would say that the eastern seaboard was not in too good a position from a medical standpoint, then?

Mr. CASSEDY. Let me say this, Mr. Reece, pointing out something that you have not considered: That is, as illustrated in the BromoSeltzer case-the respondent in the Bromo-Seltzer case has secured its witnesses from a very wide range, all over, you might say, the eastern half of the United States.

I have been to New York on many occasions, to New Haven, Conn., on one or two occasions, down to Atlanta, Ga.

I have been to Chicago and to Baltimore a number of times, and other places scattered all over this country to take the testimony for the respondents.

Mr. REECE. The two witnesses at Tuscaloosa were with the State insane asylum?

Mr. CASSEDY. Yes; Brice Hospital.

Mr. REECE. I am not stating that as a reflection upon them.
Mr. CASSEDY. They have devoted their lives to that, sir.

Mr. REECE. But now St. Elizabeths Hospital also is for the insane. Would not you say there was someone on the staff at St. Elizabeths who would be qualified to testify on that subject?

Mr. CASSEDY. I understand there is one, and we intend to ask him to testify on that subject.

Mr. REECE. If these institutions nearby had competent staffs, I was wondering why witnesses could not be obtained from them.

Mr. CASSEDY. I assure you that we will obtain every qualified expert; every qualified expert on that subject that is available, to fully meet similar experts that the respondent may secure or try to secure, no matter where they are located.

Mr. SADOWSKI. You had stated previously that most of these experts were in the service at the time?

Mr. CASSEDY. Yes, it was difficult to try these cases.

Mr. HOWELL. In answer to a question by Mr. O'Hara a moment ago, did I understand you to say that the Federal Trade Commission and the respondent sat down at the beginning of these suits and agreed upon the witnesses that would be used by both sides?

Mr. CASSEDY. No, sir.

Mr. HOWELL. How is it done? Does the Commission sit down and decide as to the witnesses?

Mr. CASSEDY. The Commission's trial attorneys decide upon the witnesses they intend to use, and they request from the Commission subpenas, just as you would in a court proceeding.

We file a request for a trial examiner and the trial examiner is usually appointed. Then we request the setting of these cases at such dates and at such times as will be convenient to the attorneys representing the respondents. We agree on those dates. We make it as agreeable as possible. On numbers of occasions we have postponed

cases, or hearings rather, so that respondents' counsel could meet other engagements and then be at these hearings.

At that time, we take the testimony of the witnesses that have been subpenaed in advance. Now, the respondents are supplied with information as to who these witnesses will be, so that in case they are experts, such as these we have mentioned, they can go to the literature and get what they have written and be able to properly cross-examine those experts.

I assure you they do properly cross-examine them. On the respondent's side, respondent follows the same procedure and furnishes to the trial attorneys for the Commission the names of witnesses they intend to use, and they set their hearings at such places as they may desire, and then we go to those hearings.

They put on their witnesses, directly examine them, and turn them. over to the trial attorney for the Commission to cross-examine.

In these cases that I have mentioned, I have acted as trial attorney in all of them, and am very familiar with the procedure in all of them. Mr. HOWELL. Mr. Cassedy, then it lies entirely within the power of the Commission's attorneys in making out one of these cases, in the selection of their witnesses and their geographical location within the United States or elsewhere, to practically put a little company out of business by reason of the expense that would be saddled on to him in sending their counsel around and defending themselves against the various witnesses that the Commission had selected?

Mr. REECE. May I interject? The Small Business Bureau wrote a letter, strongly endorsed the passage of this bill, and that was one of the considerations.

Mr. CASSEDY. I would think that the violation of the law should be considered rather than the size of the business.

Mr. WHITELEY. May I make a brief statement with respect to the questions submitted to the witness by Congressman Reece and Congressman Howell? Because it is my responsibility as to approving the travel incurred.

The Commission has a very limited amount of money, which is appropriated by Congress, and which is earmarked for travel. We scrutinize very carefully in every case the necessity for travel and only make such travel as we consider to be necessary in the public interest to protect the public in the establishment of the allegations of the complaints.

We have not the funds to spend on travel that these corporations, particularly in these headache remedy cases, have. However, while we are at that disadvantage, we have the advantage of being able to call upon and to rely upon the most eminent doctors and scientists in the United States, who contribute their services without any charge because of the public interest involved.

Now, I make this statement because there is either an implied or an express criticism made of the Commission, and an intimation that the Commission wastes the public funds in taking this testimony.

I want to emphasize that I emphatically deny that that is done. Mr. REECE. The intimation that I had in mind, Dick, did not turn on the spending of money but rather to the possibility of the Government shopping around, so to speak, to get witnesses that were favor

able, rather than taking a well-qualified man wherever he might be found.

Mr. WHITELEY. That is true, Congressman, and if we can get a well-qualified man nearer home, we will take him; if not, we will have to go farther away.

Mr. O'HARA. Did you read the testimony of Dr. Payne which was taken out in Los Angeles?

Mr. WHITELEY. No; I did not.

Mr. O'HARA. I wish you would, please.

Mr. HOWELL. I want you to understand, Mr. Whiteley, that I am not at all antagonistic to the work that the Federal Trade Commission is doing. But I asked that question because I can see, and I am sure that you can, in the case of a small company with limited funds, that the Commission does have within its power the using of witnesses

Mr. WHITELEY. Such occasions have arisen in the past, and in those cases, we do everything possible to accommodate those small companies by avoiding any unnecessary expense..

Mr. HOWELL. I am glad to have that statement in the record.

Mr. CASSEDY. Let me say that the businesses we deal with are those engaged in interstate commerce, and I would not say that one engaging in interstate commerce is a small business.

Mr. O'HARA. In that connection, how many instances have you had during the last few years where prosecutions have been brought against small companies and they have folded up and said, "Well, we will have to go out of business." I mean before going to trial.

Mr. CASSEDY. I do not know of any. The orders in our cases are stop orders. They merely tell them to stop the dissemination of these false representations.

Mr. O'HARA. Did that not happen in the case recently here brought against the Richmond concern, down in Richmond, Va., where the company came in without counsel and said, "We are quitting; we haven't the money to carry on."

Mr. WHITELEY. It may have happened, Congressman. I could not recall any specific case but it may have happened that if the business of that company was entirely supported by and based upon false advertising and the Commission issued its order directing it to stop that, and the company could not carry on its business without continuing such false advertising, manifestly it would have to close up. Mr. O'HARA. Well, if that were true, but I do not know what the facts were.

Mr. REECE. Just one other observation or statement, since you referred to the trial examiner a while ago: It appears that in some of these cases the trial examiner was changed. Is it the custom when a trial examiner is assigned to a case to let him complete that case? Or do you switch examiners?

Mr. CASSEDY. It has been the custom to have the same trial examiners as far as possible, but sickness or the fact that the trial examiner's staff is small and the trial examiner may be engaged on another case; or I believe in some instances, where the trial examiner died during the trial-there have been changes.

Mr. REECE. But if a trial examiner was temporarily indisposed or temporarily engaged in other work, would it be your practice to assign another trial examiner to a case?