Massengill Pleads Guilty to Adulteration, Misbranding

On October 3, 1938, Dr. Samuel E. Massengill, head of the S. E. Massengill Company of Bristol, Tennessee-Virginia, pleaded guilty in a federal court to 112 counts of adulteration or misbranding of Elixir Sulfanilamide [1]. The US District Attorney, James B. Frazier, recommended that the defendant be fined $150 for each count—a recommendation that the federal judge, George C. Taylor, accepted. Massengill was consequently fined a total of $16,800 (~$252,826 in 2009), the largest fine posed to date under the 1906 Pure Food and Drugs Act. No jail time was handed down.*

According to news reports, the doctor was required to pay one third of the fine immediately and the remainder within 30 days [2]. Judge Taylor also announced that Massengill would plead guilty to 62 counts of adulteration or misbranding that were pending in a Kansas City, Missouri, federal court [1]. The fine stemming from these charges would total $9300 [3].

The government had prepared for the testimony of "numerous world famous experts in physiology and toxicology" at the trial, but these witnesses were told not to appear, given Massengill's change in plea [1]. According to Massengill's General Counsel, Frank DeFriece, Massengill initially offered $100 per shipment, or $9000, in plea negotiations with the government [4]. DeFriece rationalized any plea bargaining and the avoidance of further litigation on the basis of "the welfare and best interests of the company."

Invoking the government's slim chances of conviction, additional negative publicity for the company, and the expense of continued litigation, DeFriece further defended his boss's decision—that is, as long as the government's fine wasn't too hefty.

Massengill and his advisors feel that in view of the very narrow grounds upon which the government has based its case its chances of conviction, or even of sustaining its indictment, are very slim, and about all that the government would get out of it would be the satisfaction of further advertising the calamity of Elixir Sulfanilamide to the nation. Even in this event it would be expensive litigation. And if the government obtains a compromise judgement and fixes a reasonable fine, it certainly wins its point, and the amount of the fine ought not to be a matter of so great importance. It is felt that, in view of the immense amount of money which has been expended in the adjustment of claims both valid and invalid which have been made against the Massengill Company on account of Elixir Sulfanilamide, the payment of any large fine would seriously cripple the future business of the Company, and unless it is the purpose of the government to make an effort to wipe out the Company entirely, it is impossible to find the reason for the infliction of so great a sum as a penalty.

Following the plea, Time magazine reported that the S. E. Massengill Company had expended more than $150,000 in the settlement of damage suits brought by survivors of elixir victims [5]. (By mid-1938, the company maintained that all claims, except for two, had been negotiated out of court and that only 2 civil suits had been filed. One of these had been settled [4].) 

Also according to company accounts, Frank DeFriece, Massengill's General Counsel and son-in-law, personally visited the close relatives of elixir victims and, often, their physicians in an effort to negotiate out-of-court settlements. During these extended road trips, DeFriece frequently avoided claimant's lawyers and county officials who had issued arrest warrants for Massengill and his top executives. DeFriece claimed to have made friends with most of the bereaved and relayed a story (as told by his son) of the welcome he received in the "deep South" from the brother, a gas station attendant, of one of the elixir victims [6].

A young man came out to serve them and, immediately upon seeing his customer, said something like, "By golly, it's you, Mr. DeFriece. I'm glad to see you." After introducing his wife, Frank DeFriece asked about the man's wife (by name!) and his children. In answering, the man gave some details on them and several other relatives and invited both of them to "come over for supper tonight—nothing special, you know. My wife will be glad to have you and meet the missus."

DeFriece reportedly declined the invitation.

* It's not clear that jail time was or could be considered in this case.

1. Bristol man submits to charge violating Pure Drug Law. Greeneville Sun. October 3, 1938; p 1, cols 6-8; p 6, cols 5,6.

2. Associated Press. Massengill fined total of $16,800. Bristol Herald Courier. October 4, 1938; p 9, col 6.

3. FDA correspondence. Letter from Theodore G. Klumpp to Mr. H. H. Smith. November 29, 1938.

4. Pully P. Masengill Brother Company and the S. E. Massengill Company, 1807-1971. Knoxville, Tenn.: Tennessee Valley Publishers; 1996. Appendix 7.

5. Massengill pays. Time. October 17, 1938.

6. Pully P. Masengill Brother Company and the S. E. Massengill Company, 1807-1971. Knoxville, Tenn.: Tennessee Valley Publishers; 1996. Appendix 5.