THE PRESIDENT: The documents may be marked with a prosecution number for identification, given numbers especially.
MR. HARDY: Will you kindly pass up that photostat of the publication "Yellow Fever", Dr. Ivy?
At this time, Your Honor, I do not propose to pass them over to the Tribunal and give them to the Secretary General, inasmuch as they have not been processed. The prosecution will hold them, giving them an exhibit number, and if necessary introduce them, if the Tribunal's ruling is favorable to the admission of such evidence. If it is unfavorable, we will not use them.
THE PRESIDENT: That will be satisfactory. However, I suggest that they may be available to defense counsel to examine in the office of the Secretary General in the meanwhile, if any of the defense counsel desire to examine them.
MR. HARDY: I don't know how we can possibly do that--
THE PRESIDENT: I understood you to say you would deposit these originals in the office of the Secretary General. Was that correct?
MR. HARDY: No, I asked if we could dispense with doing that so we would be in a position to process them.
TEE PRESIDENT: They should be processed. That is right.
Q. In this report "Yellow Fever", Dr. Ivy, on the second page of the report, of the substance of the report, which is page 10 of the compilation, we note a paragraph which reads as follows:
"From time to time Spanish immigrants newly arrived were brought in directly from the immigrant station. A person not known to be immune was not allowed to leave camp, or if he did was forbidden to return."
Could that have been construed to be natives, as I referred earlier today in the examination when I asked you whether or not natives were used in the experiments?
A. It may have been, but it is not to be inferred that the Spanish immigrants were submitted to experimental biting by an infected mosquito.
They were quarantined to be sure that they had not been bitten by a mosquito before coming to the camp. That was a control procedure. To my knowledge natives were not used as experimental subjects. That may be wrong. I may have overlooked something. One can't be perfect in searching the literature.
DR. SERVATIUS (Counsel for defendant Karl Brandt): Mr. President, may I perhaps suggest that this document which is submitted here should be made available to the defense after all, so that we can examine what the context is of these places which are being read now, so that we do not find out later on that we could have put questions to the witness which are essential.
MR. HARDY: Your Honor, in that event I request instructions. I am wondering whether or not at this time it will be necessary for the Tribunal to rule whether or not this evidence concerning experiments in other countries will be admissible or will be inadmissible, or am I too premature. If the ruling is favorable, it will necessitate processing, filing copies with defense counsel; if not favorable, that can all be avoided.
THE PRESIDENT: It is impossible to make such a ruling at this time. While some of the evidence may be admissible, other evidence in the pool would probably not be admissible. It would fall into different classes. Here is a government document published under the supervision of the United States Government. At the same time, in the general pool there are magazine articles, some of them from responsible magazines and some of them from rather irresponsible magazines, some by known authors and some by unknown authors, some by known authors with a good, reputation and some by known authors whose reputation was not particularly good.
MR. HARDY: I can turn it over to defense counsel at this time and of course let them have the opportunity to study it, but I request that it be preserved and locked in a safe if he intends to keep it over the recess and this evening.
THE PRESIDENT: I think it can be given to defense counsel now, but it should be returned to the prosecution before the close of the afternoon session. Of course the document will be available again to you tomorrow morning if counsel desires to look at it.
Q. Now, the experiment by Colonel Strong and Dr. Kurz on beri-beri on which you have testified and based your testimony on, a publication "Philippine Journal of Science", Vol. 7, page 291, published in 1912, and also based on your personal conversations with the experimenters, I wish that you would pass up to me the publication on which you base your testimony, Doctor, so that I may mark it for identification.
MR. HARDY: The yellow fever publication, Your Honor, the yellow fever document will bear Prosecution Exhibit 511 for identification, the beri-beri document, which is an extract from the "Philippine Journal of Science", Vol. 7, 1912, and which will bear Prosecution Exhibit 512 for identification.
THE PRESIDENT: The record will show the identification numbers.
BY MR. HARDY:
Q Dr. Ivy, is that extract from the "Philippine Journal" Volume 1, 1911 appear to be No. 2 from tho original journal?
A Yes.
Q You certify that this is a true copy?
A Yes.
Q The publication concerning the plague experiments, will you kindly pass that up to me, Doctor. This publication will be marked Prosecution Exhibit 513 for identification, your Honor. Does this extract from the "Philippine Journal" of Science, Volume 7, dated 1906 pertaining to the plague experiments of Colonel Strong purport to be a true copy of the original?
A Yes.
Q From these reports concerning the beri-beri and plague experiments is it possible to ascertain that deaths occurred in either of those experiments?
A In the plague experiments it is a page photo stated in which it states that no injury of any of tho subjects occurred.
Q Is that on page 188 of the Philippine Journal of this exhibit, Prosecution Exhibit 513 for identification, wherein it states, "Up to tho present time 42 persons have been injected with this large dose 724 ACA-slent culture of the living bacillus and although the innoculation which I include in this report were all performed more than two months ago and the individuals treated have been under constant surveillance I have no accident to report."
A Yes.
Q That is in the plague experiments. In the beri-beri experiments, from you conversations were you able to ascertain whether or not any deaths occurred, that is your conversations with tho experimentalists?
A I was told no deaths occurred.
Q Professor Ivy, would you kindly pass up the publication upon which you base your testimony concerning the experiment on trench fever. This will be marked Prosecution Exhibit 514 for identification. Dr* Ivy, does this extract pertaining to the experiments on trench fever made in 1917 purport to be a true photostatic copy of the material contained in the report of the Commission of the Medical Research Committee, American Red Cross, in the Oxford University Press?
A Yes.
Q Would you kindly pass up the report upon which you base your testimony concerning the pellagra experiments. Does this photostatic copy which has been narked Prosecution Exhibit 514 for identification purport to be a true photostatic copy of the material contained in the Archives for Internal Medicine, Volume 25, page 451, dated May 1920 concerning experimental pellegra in white male convicts?
A Yes.
Q Would you kindly pass up the material you have concerning- the experiments first of all on the inmates of the Stateville Penitentiary in Illinois.
A I have the summary agreement, Mr. Hardy, of the Department of Justice, the Bureau of Prisons, that is for the Federal Prisons.
Q Thank you, I will refer to that in a moment, Doctor. Dr. Ivy, does this statement to prospective volunteers and the application for inclusion in study of now anti-malarial compounds purport to be a true copy of the statement to prospective volunteers and application which was submitted at the Stateville Penitentiary in Illinois prior to the execution of the malarial experiments therein?
A Yes.
Q This is marked Prosecution Exhibit 516 for identification, your Honor. Do you have any further material before you, Doctor, that I haven't referred to yet that you have been testifying to?
A I have a copy of the agreement which prisoners in the Federal Penitentiary sign when they volunteer for subjects in medical experiments.
Q Do you have any experience from your own knowledge of the subjects in Federal Penitentiaries, that is, do you know of any experiments wherein Federal inmates were used?
A Yes, they were used in the malarial studies in the same way tho prisoners were used at Stateville.
Q What particular Federal penitentiaries did. they draw their subjects from?
A One at Atlanta and another in Texas.
Q Will you kindly pass up that document, Professor Ivy. Does this mimeographed copy entitled "Department of Justice, Bureau of Prisons", application for permission to participate in experiments" and marked Prosecution Exhibit 517 for identification, purport to be a true copy of the actual agreements which are signed by Federal inmates of penitentiaries in the United States?
A Yes.
Q Do you have any further material before you, Doctor.
A I have a certified letter from tho Secretary and General Manager from the American Helical Association in which they state what the three basic requirements for the proper use of human subjects in medical experiments.
Q We can put that in later. It isn't applicable to this section of the examination. Do you have any material on the experimental vaccinations for Mexican or chetic-typhus?
A Yes, I have a photostatic copy of two pages of an article in which human subjects were vaccinated against Mexican or chetic-typhus indicating volunteers were used.
Q Would you kindly pass that up, Doctor. Docs this extract from the Journal of Humanology, Volume 36, published in 1939 concerning an experiment on vaccinations of human beings against Mexican or chetic typhus from Felix Viani Miller purport to be a true photostatic copy of the original?
A Yes.
Q This is marked Prosecution Exhibit 518 for identification, you Honor.
Q The statement which you read by Governor Green, was that published in any journal or is that merely a loose statement?
A That was a statement made over the radio by Governor Green.
Q Was that made in connection with the quotations of the prisoners of volunteers?
A That is correct.
Q Is that male up into a script?
A Yes.
Q Are you able to certify that script as being a true presentation of the radio program?
A Yes, as of Thursday, January 3, 1946 over Station WGN.
Q Would you kindly pass up that script, Dr? Does this purport to bo a true script of the broadcast over WGN, entitled "Malaria Research Report, "dated Thursday, January 3, 1946 and containing a statement by Governor Green of Illinois and statements from the prisoners of volunteers used in the course of the experiment?
A Yes.
Q It is marked for identification as Prosecution Exhibit 519. Now, Professor Ivy, before adjournment you were beginning to discuss medical ethics in the United States. I wish to inform you that we have had Professor Leibbrandt, many of the defendants and other defense and prosecution witnesses testify concerning medical ethics in general and in your report would you kindly outline for tho Tribunal the procedures followed in the United States concerning the principles of ethics in experimentation on human beings?
A I will state three principles developing each one briefly. Principle No. 1 is the consent of the subject must be obtained; also subjects must have been volunteers in the absence of coercion. Before volunteering the subjects have to be informed of the hazards, if any. Small rewards in various forms have been provided as a rule.
Principle No. 2. The experiment to be performed must be so designed and based on the results of animal experimentation and a knowledge of the natural history of the disease under study that the anticipated results will justify the performance cf the experiments.
That is, the experiment must be such as to yield results of the good of society unprocurable by other methods of study and must not be random and unnecessary in nature.
Principle 3. The experiment must be conducted only be scientifically qualified persons and so as to avoid all unnecessary physical and mental suffering and injury and so that on the basis of the results of previous adequate animal experimentation there is no apriori reason to believe that death or disabling injury would occur except in such experiments as those on Yellow Fever whore the experimenters serve as subjects along with the non-scientific personnel.
This was the list of ethical considerations which I submitted as a representative of the House of Delegates of the American Medical Association to the House of Delegates in December. I received this letter from them. This is a report of the Reference Committee on Miscellaneous Business to the House of Delegates:
"The Reference Committee finds the experiments described in Dr. Ivy's report are opposed to the principles of medical ethics of the American Medical Association which have three basic requirements: No. 1, the voluntary consent of the individual on whom the experiment is to be performed must be obtained; No. 2, the danger of each experiment must be previously investigated by animal experimentation; and, No. 3, the experiment must be performed under proper medical protection and management."
Q Do you have any further statements to make concerning rules of medical ethics concerning experimentation on human beings?
A Well, I find that since making this report to the American Medical Association that a decree of the Minister of Public Welfare of Germany in 1931 on the subject of "Regulations for Modern Therapy for the Performance of Scientific Experiments on Human Beings" contains all the principles which I have read. I have that decree in the form of a mimeographed document with me here.
Q And that purports to be a rule of medical ethics for the experimentation upon human beings drafted by the American Medical Association based on investigations by you and a report by you. Is that correct?
A The letter that I read gave the basic principles, the ethics for the use of human beings in medical experiments as approved by the American Medical Association. In addition to that, I pointed out that I have a mimeograph copy of a circular letter from the Reich Minister of the Interior concerning regulations fore modern therapy and the performance of scientific experiments on human beings which contains the ethical principles which have been approved by the American Medical Association and which were submitted by me to the House of Delegates of that association for consideration.
Q Well you have there also the principles and rules as set forth by the American Medical Association to be followed?
A Yes.
Q What was the basis on which the American Medical-Association adopted those rules?
A I submitted to them a report of certain experiments which had been performed on human subjects along with my conclusions regarding the principles, what the principles of ethics should be for use of human beings as subjects in medical experiments, and asked the association to give me a statement regarding the principles of medical ethics and what the American Medical Association had to say regarding; the use of human beings as subjects in medical experiments.
Q Would you kindly pass up to me that ruling of the principles put out by the American Medical Association? This, apparently, isn't what I am referring to, Doctor. Do you have a publication which is published by the American Medical Association entitled "Principles of Ethics Concerning Experimentation on Human Beings"?
A Not with me here.
Q Well, now, you have, first of all, a basic requirement for experimentation on human beings, being: "1. the voluntary consent of the individual upon whom the experiment is to be performed must be obtained."
A Yes.
Q "2. The danger of each experiment must be previously investigated by animal experimentation," and "3. the experiment must be performed under proper medical protection and management."
Now, does that purport to be the principles upon which all physicians and scientists guide themselves before they resort to medical experimentation on human beings in the United States?
A Yes, they represent the basic principles approved by the American Medical Association for the use of human beings as subjects in medical experiments.
JUDGE SEBRING: How do the principles which you have just enunciated comport with the principles of the medical profession over the civilized world generally?
A They are identical, according to my information, and with that idea in mind I cited the principles which were mentioned in this circular letter from the Reich Minister of the Interior dated February 28, 1931 to indicate that the ethical principles for the use of human beings as subjects in medical experiments in Germany in 1931 were similar to those which I have enunciated and which have been approved by the House of Delegates of the American Medical Association.
BY MR. HARDY:
Q Is it possible that in some field of scientific research that investigation by animal experimentation would be inadequate?
A Will you repeat that question? I did not get it.
Q Is it possible in some fields of medical research that experimentation or investigation on animals would be inadequate?
A Yes. The experiment on Trench Fever is a very good example.
Q How would investigate the danger of the experiment prior to resorting to the use of human beings?
A. The hazard would have to be determined by a careful study of the natural history of the disease.
Q. Does malaria also fall into that category?
A. We can use animals to some extent in malarial studies, canaries and ducks, for example, develop malaria, and in research designed to discover a better drug for treatment of malaria we can use Avian Malaria as a sort of screen method to detect which compounds might be employed with some assurance that might be effective in human malaria. In that way we decrease the random and unnecessary experimentation on man.
Q. To your knowledge have any experiments been conducted in the United States wherein these requirements which you set forth were not met?
A. Not to my knowledge.
HR. HARDY: Your Honor, I have no further questions concerning medical ethics to put to Dr, Ivy; however, I do have one question concerning the high altitude experiments which I wish to go back to at the conclusion of that complex, in high altitude, I will have completed my direct examination.
THE PRESIDENT: The Tribunal has no questions of the witness. Do I understand that you have completed your examination of the witness?
MR. HARDY: No, I have not; I have a further question to put to him, but I was going to leave the case of medical ethics.
THE PRESIDENT: We have no questions on that subject; you may proceed.
Q. Dr. Ivy, in medical science and research is the use of human subjects necessary?
A. Yes, in a number of instances.
Q. Is it frequently necessary and does it perform great good to humanity?
A. Yes, that is right.
Q. Do you have an opinion that the state, for instance, the United States of America, could assume the responsibility of a physician to his patient or experimental subject or is that responsibility solely the moral responsibility of the physician or scientist?
A. I do not believe the state can assume the moral responsibility that a physician has for his patient or experimental subject.
DR. SEIDL: I object to this question in that it is a purely legal question that the Court has to answer.
DR. SAUTER (For the defendants Ruff and Romberg): If I am not mistaken, a document was read this morning in which it says that the state assumes the responsibility. I believe that I am not mistaken in that. I also want to point out something else, gentlemen, in order to supplement what Dr. Seidl just said.
Here the question is always asked what the opinion of medical profession in America is. For us in this trial, in the evaluation of German defendants, that is not decisive, but in my opinion the Question must be decisive what for example, in 1942, when the altitude experiments were undertaken at Dachau, the attitude of the medical profession in Germany was. From my point of view as a defense counsel I do not object if the prosecution should ask Professor Ivy what the attitude or opinion of the medical profession in Germany was in 1942. If he can answer that question, all right, let him answer it, but we are not interested in finding out what the ethical attitude of the medical profession in the United States was, because a German physician who in Germany undertook experiments on Germans cannot, in my opinion, be judged exclusively according to an American medical opinion, which moreover is from the year 1945 and was coded in the year 1945 and 1946, was coded for the future use; it can have no retroactive force either.
THE PRESIDENT: The first objection imposed by Dr. Seidl might be pertinent if the question of legality was concerned, a legal responsibility; that would be a Question for a court. The question of moral responsibility is a proper subject to inquire of the witness.
As to Dr. Sauter's objection, the opinion of the witness as to medical sentiment in America may be received. The counsel objection goes to its weight rather than to admissibility.
The witness could be asked if he is aware of the sentiment in America in 1942 and whether it is different from this of the present day or whether it does not differ. The witness may also be asked whether he is aware of the opinion as to medical ethics in other countries or throughout the civilized world. But the objections are both overruled.
Q. It is your opinion, then, that the state cannot assume the moral responsibility of a physician to his patient or experimental subject?
A. That is my opinion.
Q. What do you base your opinion on? What is the reason for that opinion?
A. I base that opinion on the principles of ethics and morals that are contained in the oath of Hippocrates. I think it should be obvious that a state cannot follow a physician around in his daily administration to see that the moral responsibility inherent therein are properly carried out. This moral responsibility that controls or should control the conduct of a physician should be inculcated into the minds of physicians just as moral responsibility of other sorts, and those principles are clearly depicted or enunciated in the oath of Hippocrates which every physician should be acquainted with.
Q. Is the oath of Hippocrates the Golden Rule in the United States and to your knowledge throughout the world?
A. According to my knowledge it represents the Golden Rule of the medical profession. It states how one doctor would like to'be treated by another doctor in case he were ill. And in that way how a doctor should treat his patient or experimental subjects. He should treat them as though he were serving as a subject.
Q. Several of the defendants have pointed out in this case that the oath of Hippocrates is obsolete today. Do you follow that opinion?
A. I do not. The moral imperative of the oath of Hippocrates I believe is necessary for the survival of the scientific end technical philosophy of medicine.
Q. Going back to the high altitude experiments for the moment, Dr. Ivy, this morning I put the following question to you in that I asked you in view of the fact that Romberg says he reported the death of three aviation subjects to Ruff, in view of the findings of air embolism in some of the subjects killed in parachute descending tests in Rascher's report, and in view of the interest of Rascher in his report and of Ruff, Romberg, and Rancher in their report on the cause of mental disturbances, is it probably beyond a reasonable doubt, in your opinion, that Ruff, when he approved, read or wrote paragraph 2 on page 91 of the Document Book No. 2, which starts with the words "in spite of", did he have in mind Rascher's experiments air embolism? And you answered the question yes. Now, Justice Sebring asked you whether or not any conclusion could be drawn from the entire report written by Ruff, Romberg, and Rascher which indicates that the writers of the report had knowledge of experiments at Dachau to any extent, that is, the entire report. I believe that was the import of the question by Justice Sebring. In any event, is it possible to ascertain from the entire report written by Ruff, Romberg, and Rascher that they had knowledge of the work of Rascher as solicited in the other reports?
A. No, my testimony in answer to those two questions was not inconsistent. I said that in view of the circumstances and because of the similarity of the subject matter in paragraph 2--
Q. Page 91.
A Paragraph 2, page 91 - and the pertinent paragraphs in the Rascher report.
Q That is Document 220.
A It is impossible when Paragraph 2 on page 91 was written that the observations reported in the Rascher report were not in mind. But, at the same time I said there is nothing in this report by Ruff, Romberg, and Rascher which proves that they had in mind the observations in the Rascher report pertaining to the pressure drop sickness.
DR. SAUTER: Mr. President, I have to object to this question and I ask to have the question and the answer stricken from the record* The question was asked by the Prosecution regarding this document. I am of tho opinion that anybody who is able to read and who is able to think logically can read a document for himself and who is asked to make a judgment about a document does not need tho statement of anybody else in order to make a judgment about this document. Therefore, I am of the opinion that it is inadmissible that an export is asked to give an expert opinion about a document which everyone of us can read and judge and that he is to toll us what he, from his personal point of view, thinks about this document.
MR. HARDY: Then I assume that defense counsel is objecting to the entire examination of Dr. Ivy concerning high altitude and the questions to Dr* Ivy by the Tribunal.
JUDGE SEBRING: Mr. Hardy, in order to clear up this matter perhaps the Tribunal had better again attempt to frame its question that it framed this morning.
Dr. Ivy, you said this morning in answer to a question put by the Tribunal that you had given thorough study to Prosecution Document no. NO-402, beginning at page 82 in Prosecution Document Book II which purports to bo tho report made by Ruff and Romberg concerning "experiments on rescue from high altitude". The purport of the question put by tho Tribunal this morning was this: Can you state whether or not there is any scientific information contained in the Ruff-Romberg report which could not have been gained by Ruff and Romberg as the result of the experiments supposed to have been conducted by them on their own experimental subjects and within the framework of the experiments as outlined in the report?
A My answer was no, by which I mean that the Ruff, Romberg, Rascher report as it stands could have been written if Rascher had not done his autopsy work on the subject in question.
BY MR. HARDY:
Q In that connection, doctor, may I ask you to refer to page 91 of Document Book II. This paragraph reads "In spite of the relatively large number of experiments, tho actual cause of the severe mental disturbances and bodily failures attendant upon post-hypoxemic twilight state remains something of a riddle." What do you determine that sentence to mean scientifically?
A Well, in that connection I believe that since Dr. Ruff and Dr, Romberg knew that a subject had died at high altitude, that the subject had been autopsied, and bubbles found in the blood vessels, that they could not write this paragraph 2 on page 91 without that information coming to mind because the subject matter of this paragraph on 91 pertains to the same subject matter that is reported in the Rascher report.
Q Then it further states "It appeared often as though the phenomena of pressure drop sickness ha d combined with the results of severe oxygen lack." Well, now could that information have been written in this report without knowledge of the Rascher experiments?
A Yes, that could have been written in this report on the basis of knowledge of the previous literature.
Q Well, they state here - "It appeared often as though the phenomena of pressure drop sickness...." Well, now if it appeared often they must have been in a position to observe this pressure drop sickness, is that true?
sickness, is that true?
A Yes, and as a result of their experiences in aviation medicine, study of subjects at high altitude, they could have observed decompression sickness or pressure drop sickness.
Q Can you observe pressure drop sickness and determine that a person is suffering from pressure drop sickness without performing an autopsy or without seeing bubbles in the blood stream?
A Yes.
Q How can you do that, doctor?
A Well, you can determine whether they have the Bends of the system which is evidenced by pain in the joints and inability to walk or stand or to move the joints normally. They could determine whether or not the patient had chokes and fits of coughing: which is another symptom of pressure drop sickness. They could determine whether or not the patient had. a localized paralysis which is another symptom of pressure drop sickness and it is perfectly reasonable on the basis of the knowledge of the literature to assume that when a human being is subjected to the conditions that were used in this experiment that the symptoms manifested by the patient might be due to the combination of oxygen lack and of low pressure.
Q Then, in the first sentence of that paragraph - that sentence could have been written also without knowledge of the Rascher work? That is the sentence starting out with "In spite of......"
A Yes, because the expression" relatively large number of experiments" refers, I believe, to experiments performed by Ruff, Romberg, and Rascher.
Q I didn't understand your answer. I ask you, could that sentence have been written without knowledge of Rascher's work at Dachau?
A Yes.
Q Is it highly probable that the author of this report had knowledge of Rascher's work in writing that sentence?
A I don't see how since Romberg was present at the death of the subject and witnessed the autopsy in which the air bubbles in the blood vessels, and reported that to Dr. Ruff. How they could have prevented having knowledge of that when they wrote that paragraph - they had it on the basis of previous experience.
Q I have no further questions, your Honor.
DR. SAUDER: Mr. President, the last question and the last answer of the witness did not come through over the translation system. May I ask Mr. Hardy to repeat the last question and the witness should repeat the last answer he gave.
MR. HARDY: I asked, if there was a probability that the author of the report had the work of Rascher in mind when they wrote the paragraph on page 91 with starts out with words, "In spite of...."
WITNESS: My answer was Yes and I answered it yes because Romberg saw the patient die, attended the autopsy, saw the gas bubbles in the blood vessels and reported that to Dr. Ruff and when they wrote this paragraph in the Ruff, Romberg, Rascher report they couldn't have done that, in my opinion, without recalling this dramatic incident that happened under Rascher's experimentation at Dachau. I think that should be obvious.
MR. HARDY: No further questions, your Honor.
THE PRESIDENT: I understand counsel for Prosecution has concluded his examination in chief.
MR. HARDY: Yes, your Honor.
THE PRESIDENT: Any questions to the witness by defense counsel?
MR. HARDY: May it please your Honor, in the cross examination of this witness would it be possible for the defense counsel to keep the cross examination in sequence, that is, the subject matter in sequence. For instance, sea water, high altitude, etc., so that it may be followed easier in the record.
THE PRESIDENT: That would be helpful. Does counsel desire to cross examine the witness on the sea water experiments?