I was convinced that I had done nothing wrong. For someone to believe that I would steal something is completely outside of my personality.
—Leonard Hayflick, October 16, 20121
IN THE 1970S biology was on the brink of major changes. The days of the medical scientist as a selfless, salaried public servant were about to give way to the commercialization of biology. Beginning in 1980, new laws and court decisions allowed biologists to make serious money on their inventions. The changes blurred the once-sacred boundaries between business and biology, and by the early 1980s they were turning some biological scientists into wealthy men. Like an overeager guest, Hayflick would find himself arriving at this party just a little too early.
In February 1971 Hayflick took the next fateful step on the road that began in 1968, when he packed the WI-38 cells into the family sedan and drove them cross-country from the Wistar Institute to Stanford. Like so many roads that people follow to their detriment, this one was paved with many significant but quiet choices, rather than one great, dramatic moment of decision. Nevertheless, it led to a place nearly unimaginable for a man of Hayflick’s growing prominence.
That February Hayflick opened an account at the Great Western Savings and Loan Association in Palo Alto. He named it “Cell Culture Fund.” During his first three years at Stanford, until this moment, he had been keeping the money he collected to cover the costs of preparing and shipping WI-38 cultures in a Stanford University account. (He would later tell NIH investigators that he abandoned the university account because it wasn’t interest-bearing.)2 The exception was his shipments of WI-38 cells to researchers studying aging. The costs of these shipments were paid for by his 1969 contract with the NIH, which was still in effect, and he didn’t collect money for sending out those cells.
Hayflick had intended, he says, when he left the Wistar Institute with most of the world’s youngest WI-38 cells in tow, to find appropriate lawyers to weigh in on who owned the cells.fn1
He believed the question was in dispute. If he was aware of the wording of the original 1962 contract under which he had derived the WI-38 cells, which stated that title to materials developed under it passed to the government when the contract was terminated—as it was in 1968—he chose to ignore it.3
As for the action plan formulated in a Wistar conference room on that January day in 1968, under which virtually all of the ampules were to be transferred to the American Type Culture Collection, to steward them on behalf of the NIH—well, he may have been at the meeting where it was agreed on, but he had been an unwilling participant.4
During the next three years, from February 1971 until March 1974, Hayflick deposited in the Cell Culture Fund at the Great Western Savings and Loan a total of $13,349.84 that he collected for preparing and shipping the cells to researchers outside the field of aging.5 Hayflick also raised his prices beginning in 1972, in line, he says, with what the American Type Culture Collection was then charging.6 The nonprofit ATCC was the highest-profile cell bank in the country, and its pricing could be taken as a standard. But Hayflick kept bumping up his prices, and by August 1974 he was charging academic scientists $35, nearly twice as much as the ATCC charged, for a starter culture of WI-38 cells, and he was charging commercial firms $250—more than eight times as much as the cell repository charged.7
On March 12, 1974, he closed the “Cell Culture Fund” with its accrued $13,000 and change. One week later, on March 19, he incorporated Cell Associates in the state of California, with himself and his wife, Ruth, as sole stockholders.8 Hayflick opened a corporate account in the company’s name at the Great Western Savings and Loan, and beginning in April 1974, he deposited the money he collected for WI-38 cell preparation and shipments in this account. He did not spend any of it, he says, adding that he was simply waiting for the opportunity to enlist a lawyer to sort out whose funds they were—to sort out who owned WI-38.
But Hayflick didn’t get around to finding a lawyer; he was busy. By the summer of 1974 he had been at Stanford six years and had established himself as an important presence on the faculty. His groundbreaking 1961 paper with Moorhead, describing the Hayflick limit, was being cited by other scientists an average of sixty times a year—a huge number of citations compared with most papers—and Hayflick’s influence was growing commensurately. His lab in the parking lot behind the medical microbiology building buzzed with activity. He supervised graduate students, lab technicians, and postdocs, traveled extensively, and was the lead investigator on several NIH research grants and contracts that in the course of the years between 1968 and 1975 brought more than $2 million in NIH money to Stanford. (That’s nearly $10 million in 2016 dollars.) At home his youngest, Annie, was nearly nine years old, and Joel, the eldest, was preparing to become a freshman at Stanford.
In the midst of his dizzying schedule, in the late summer of 1974 an invitation came Hayflick’s way from the NIH. The new National Institute on Aging was being launched, responding to an explosion of interest in aging research. Would Hayflick consider being interviewed for the position of director?
Today ambitious biologists often found companies to commercialize their inventions. They rub shoulders with venture capitalists and dispense wisdom from their seats on companies’ scientific advisory boards. They are seen as paragons of success and are objects of envy, not scorn. Their universities applaud them and do all they can to enable their entrepreneurial efforts.
So it’s hard to appreciate what a radical departure it was in 1974 for Hayflick to form a company. In those days biology was pursued as an end in itself: for knowledge, for glory, perhaps, but not as a commercial enterprise. It had been so since at least 1923, when Frederick Banting and Charles Best, the Canadian inventors of the first “biotech” product—insulin extracted from animals—sold their patent rights to the Board of Governors of the University of Toronto, for $1 each, as a means of getting insulin made and out to the diabetics who needed it.9 In 1955, when the famous broadcast journalist Edward R. Murrow asked who owned the patent on the first vaccine against polio, its inventor, Jonas Salk, famously replied: “There is no patent. Could you patent the sun?”10
In 1953 the earnest author of a letter to Science captured this ethic and the expectations of biologists that accompanied it. The “true” scientist, the letter writer Frederick J. Hammett declared,
is not properly concerned with hours of work, wages, fame, or fortune. For him an adequate salary is one that provides decent living without frills or furbelows. No true scientist wants more, for possessions distract him from doing his beloved work.11
Very little in this attitude had changed when Hayflick founded Cell Associates. This did not deter him.
Hayflick launched the company, he says, not as a moneymaking venture but simply to get a tax advantage: being incorporated would lessen the amount of tax he had to pay on the money he was accumulating.12 (The $13,350 he had in hand at the time he incorporated would be more than $65,000 in 2016).13 Yet soon after founding the firm, Hayflick began to act like an entrepreneur. He ordered officials at London’s Medical Research Council, where he had sent one hundred ampules of the youngest WI-38 cells in 1962, to stop distributing them without first seeking his approval.14 And, departing from years of practice in which scientists, both commercial and academic, had come to him if they wanted WI-38 cells, Hayflick began to seek out customers in industry. With these firms he jettisoned any notion of recovering only his costs in preparing and shipping the cells. He began flat out selling them, at prices that brought in $47,543.38 in the fourteen months after he launched Cell Associates.15 (That’s $209,000 in 2016 dollars.)
In June 1974 he wrote to the French firm Institut Mérieux, which was using WI-38 cells to make Plotkin’s RA 27/3 rubella vaccine. He declared that it “has recently been decided that a supply agreement shall be made with manufacturers using WI-38 for research, development and production purposes.” In this letter Hayflick added that he didn’t want to set prices that would put WI-38 cells out of reach and asked the company for its view on what price would be reasonable.16 In August he wrote to the director of the Institute of Immunology and Virology in Zagreb, on Cell Associates letterhead. The Institute’s quiet but determined chief, Drago Ikić, had been the driving force behind Yugoslavia’s becoming the first country to license any vaccine made in WI-38 cells—a polio vaccine—in 1968. Hayflick now informed Ikić that young starter cultures of WI-38 could be supplied for $1,500 each. “We are currently supplying starter cultures of WI-38 at the ninth or tenth population doubling level (PDL) to several vaccine manufacturers of poliomyelitis,” he wrote in that letter.17 He later sent the Yugoslavian institute two starter cultures and collected $3,000.18
He approached New York–based Pfizer, the maker of the WI-38–propagated polio vaccine Diplovax, to ask if it would like to acquire a large stock of WI-38 cells; the company told him it wasn’t interested—perhaps because Lederle was in the process of chasing it out of the U.S. polio vaccine market.19 But another U.S. vaccine maker was highly interested. In mid-July of 1974, or soon after, Hilleman, the vaccine chief at Merck, called him, Hayflick says.
Hilleman was keenly interested in obtaining ample supplies of young WI-38 cells because, nine months earlier, Dorothy Horstmann had finally worn down the tough Montanan and persuaded him to drop the company’s HPV-77 duck-embryo rubella vaccine in favor of Plotkin’s RA 27/3 vaccine, produced using WI-38 cells. Hayflick remembers Hilleman telling him during that phone conversation that a Merck lawyer, Donald S. Brooks, had established that Hayflick owned the WI-38 cells. In addition, says Hayflick, Hilleman told him that Leon Jacobs, the associate director for collaborative research at the NIH, had affirmed to Merck that Hayflick owned the cells. (The NIH’s Jacobs would vehemently deny ever saying this.20 Later Merck would tell NIH investigators that it did not proceed with the contract until Hayflick—not the company—attested that he owned the cells and that NIH concurred).21 Now Hilleman wanted to buy the youngest cells that Hayflick could provide.
Hayflick was impressed. “I don’t have to tell you how persuasive [Hilleman’s information] was,” he said in a 2013 interview. “I’m talking to a giant in the industry. A man who doesn’t want to risk his job as a vice president or besmirch the name of Merck. All that is critically important. So he certainly didn’t lie to me. Whether this [Merck] lawyer made a mistake in his interpretation is another question. Could he have? Certainly. But I acted on information I had.”22
On October 23, 1974, Hayflick executed a contract with Merck. In it he attested that Cell Associates had acquired ownership of all of the hundreds of young WI-38 ampules that Hayflick had taken from the basement of the Wistar Institute, and that previously he himself had had full right to and ownership of those ampules.23 The contract stated that, as president of Cell Associates, Hayflick agreed to consign to Merck one hundred ampules of WI-38 cells at the ninth population doubling level and fifty ampules of cells at the tenth. Each ampule contained millions of cells with dozens of doublings left in them. The company would be able to thaw and expand them, one ampule at a time, until Hilleman’s great-great-grandchildren were in their graves, and longer. For practical purposes the deal would assure Merck an unending supply of WI-38.
Under the contract Merck agreed to pay Cell Associates $5,000 for each ampule of cells at the ninth population doubling level and $2,500 for each ampule of cells at the tenth. Hayflick also granted Merck the right of first refusal on the sale of one hundred more of these young ampules. At the outset the contract would bring in $625,000. Fully executed, it would be worth $1 million—$4.8 million in 2016 dollars.
With his sales of the WI-38 cells to companies beginning in the spring of 1974, Hayflick crossed a line that would make it extremely hard for him to defend himself later. Had he simply continued to provide the cells to biologists and recover only the costs of preparation and shipping, he might have made a case that he was acting as a responsible steward, even if he was thumbing his nose at the 1968 decision by the NIH that the American Type Culture Collection should play this role and that the youngest cells should no longer be thawed and sent out. The arguments that he would later muster in his defense were true: that NIH officials became aware almost immediately, in 1968, that he had taken all the cells to Stanford and didn’t chase him down to recover them; that he had openly charged costs for shipping the cells—including to NIH scientists—for years, and the agency had uttered not a peep; and that he had reported distributing the cells “outside the contract” in his progress reports to Donald Murphy, the NIH project officer who supervised the contract under which he distributed the cells for free to researchers studying aging.24
But none of this would mitigate the public damage when juxtaposed with Hayflick’s collecting more than $47,000 from firms in the fourteen months that he sold the WI-38 cells through Cell Associates—or with his eye-popping contract with Merck worth up to $1 million. By amassing that kind of money for the cells and by negotiating the Merck contract, Hayflick made his case a political and personal disaster when the facts became public.
Ironically, just as Hayflick was defying the rules of behavior for biologists by launching Cell Associates, the first, hugely important, biotechnology patents—which would create some very wealthy academic scientists—were being planned a few hundred yards from Hayflick on the Stanford campus. There, at the medical school, an intense thirty-nine-year-old associate professor of medicine named Stanley Cohen was having his arm twisted by Niels Reimers, the forward-looking chief of Stanford’s young Office of Technology Licensing.
Stanford, like other universities in the late 1960s and early 1970s, was being forced to come to grips with the slowing growth of government funding for medical research after a quarter century of astonishing gains. Partly as a result, the university was becoming less passive about trying to commercialize inventions made by its scientists. Reimers, a former Stanford engineering major with experience in the electronics industry, was the face of its quest to do better.
In the spring of 1974 Reimers was trying urgently to get Cohen to agree to file a patent application. Cohen was the lead author on a landmark paper published in November 1973.25 He was proud of the paper and the huge contribution to biology that it was clearly going to make, launching a new technology so accessible that virtually any lab could use it. Cohen and his coauthors had succeeded in cutting and splicing genes from different biological sources into circular pieces of bacterial DNA called plasmids. By inserting the plasmids in bacteria, they could be made to pump out proteins coded for by those genes. Soon dubbed recombinant DNA technology, the invention would launch the biotechnology industry, leading to products like human insulin and clot-dissolving drugs for heart-attack patients.
But Cohen had not thought of patenting the gene-splicing invention that the paper described. Indeed, Reimers, Stanford’s tech-transfer boss, had learned of the exciting new paper only six months after its publication, because Stanford’s news director, Bob Beyers, sent him a copy of a New York Times article about it.26 The patent clock was ticking; any application needed to be filed by November 1974, that is, within a year of Cohen’s publication of the discovery.
Reimers recalled Cohen as a reluctant conscript who, when first approached by Reimers, told him he wasn’t interested in patenting the new technology. He saw his invention as something that was meant to go out to the research community broadly, not to become a commercial captive. Cohen, who was a physician as well as a scientist, acquiesced, Reimers remembered, only after Reimers argued that patent protection would entice companies that would license the technology and use it to develop drugs that otherwise would not be made—drugs like penicillin, whose commercial production had been delayed for eleven years for lack of patent protection.27 In the end the patent application was filed just in time.
Cohen’s attitude was typical of the era.28 Biology was not thought of as a commercial venture, and most biologists looked askance on any colleague who moved in that direction. In 1976 Cohen’s equal partner in the revolutionary discovery learned this the hard way. Herbert Boyer, a biologist at the University of California at San Francisco, was the senior author on the recombinant DNA paper. After he partnered with a young venture capitalist named Robert Swanson and the duo used $1,000 of their own money to launch a company, Genentech, to exploit the new gene-splicing technology of which Boyer was a coinventor, he took tremendous heat from his academic colleagues.
Boyer recalled later that “the way the attacks went, I felt like I was just a criminal.”29
A good number of Hayflick’s colleagues, when they learned of his activities, reacted the same way. “In those days, in that environment, when you did research with government support, it was in the public domain. When it came out that Len was selling these cells, a lot of people were appalled,” said Cristofalo, Hayflick’s former Wistar colleague whom Koprowski had sent to Stanford to try to recover the cells from Hayflick.30
Hayflick, on the other hand, felt not the least bit like a criminal. He continued to see himself as providing a valuable service to colleagues—which he no doubt was doing—and to companies, in exchange for what now was clearly fair market value for the WI-38 cells. Vaccine-making firms, with their bottom-line focus, would not be handing him tens of thousands of dollars for tiny ampules of WI-38 if the cells were not precisely that valuable.
But there were major differences between Boyer’s enterprise and Hayflick’s. Boyer was an inventor on a patent—unlike the WI-38 cells, the Cohen-Boyer gene-splicing techniques could be patented because they were methods, not living things. What was more, Cohen and Boyer had assigned their rights as inventors to their universities, which would be the owners of any patents that issued. Whatever portion of the royalties might end up flowing to the men as individuals would be at their universities’ discretion and would be aboveboard gains for them under Stanford’s royalty-sharing policies. Hayflick, by contrast, was selling unpatented WI-38 cells that the NIH had paid him to develop under a contract that specified that title transferred to the government when the contract was up. His actions were rather akin to those of a horse breeder on staff at a stud farm—a breeder who is paid by a client to develop a world-class racehorse to sire more of the same. The breeder, after developing the prize stallion, moves cross-country with the animal and begins selling its offspring to wealthy racehorse owners, arguing that it is not clear who owns the valuable stud and saying that he will keep the proceeds of the sales until lawyers can figure that out.
On October 17, 1974, Hayflick spent the day in Bethesda, Maryland, at the invitation of the National Institutes of Health, in a preliminary series of discussions about the directorship of the new National Institute on Aging. He was briefed by the agency’s deputy director, Ronald Lamont-Havers, a jowly arthritis physician with black horn-rimmed glasses; chatted with staff in the Office of the NIH Director; then met over a lengthy brown-bag lunch with the search committee charged with finding a director for the new institute.31
Hayflick would later insist that, during his meeting with Lamont-Havers on that day, he raised the issue of his possession of the WI-38 cells and asked the NIH deputy director to assign a lawyer to determine who owned them.32 Lamont-Havers would just as vehemently insist that Hayflick made no such request.33 From the NIH’s point of view, it would emerge, Hayflick was anything but aboveboard with the agency about his sales of the cells to companies—until the most senior NIH officials learned of those sales, almost accidentally.
On Thursday, May 15, 1975, Donald Murphy, the midlevel NIH administrator who had launched and oversaw Hayflick’s ongoing contract to supply WI-38 cells for aging research, was attending a meeting at the Institute for Medical Research, a cell repository in Camden, New Jersey. There he learned something that bothered him.34
Murphy was a former marine and a PhD marine biologist who grew up in Hawaii and had come to the NIH in 1967 as a grants administrator. Hayflick liked him and considered Murphy a friend as well as a colleague. Murphy had been communicating with Hayflick as the NIH prepared to open the National Institute on Aging on July 1, keeping him abreast of efforts to staff up the institute and sharing concerns that key positions shouldn’t be filled before a director—presumably Hayflick—was in place.35
Now, at the Camden meeting, Murphy was startled when someone told him that Hayflick was selling very young WI-38 cells to companies for $5,000 per ampule and somewhat older cells for $250. He contacted a commercial firm and learned that it had recently bought ampules of the slightly older cells from Hayflick at the latter price.36
Then Murphy called Hayflick and confirmed that what he was hearing was true—that Hayflick was selling the cells through Cell Associates. Soon he was on a hastily arranged conference call with Thomas Malone, the agency’s associate director for extramural research—and with Lamont-Havers, who by then was serving as the NIH’s acting director during a several-month gap between permanent directors. The matter was pressing, for the next day—Friday, May 16—Hayflick’s final round of interviews for the position of director of the National Institute on Aging was scheduled.37
Hayflick’s first meeting the next morning was with the NIH’s incoming permanent director, Donald Fredrickson. An NIH veteran who had directed the agency’s heart institute, Fredrickson was finishing a year’s stint as the president of the Institute of Medicine before taking the helm at the NIH, and so Hayflick met him at the institute’s home—the stately National Academy of Sciences building on the Washington Mall—and Fredrickson drove Hayflick the eleven miles to the biomedical agency in Bethesda. On the way, Hayflick remembers, Fredrickson turned to his passenger and said, “I hear you have a problem.”38
After Fredrickson dropped off his passenger at the NIH, Hayflick proceeded through an orderly round of interviews with other senior agency figures. One of these had been hastily added to the schedule the previous afternoon. Just before lunch that Friday, Lamont-Havers, the agency’s acting director, met with Hayflick. He told Hayflick, Lamont-Havers recalled one year later, that the job offer was a firm one—“contingent upon the resolution of a possible conflict of interest in relationship to the selling of the WI-38 cells.”39
Lamont-Havers had already decided who was going to investigate Hayflick’s activities with the WI-38 cells. It wasn’t a lawyer trained in intellectual property law. It was James W. Schriver, who headed the NIH’s internal auditing office. Called the Division of Management Survey and Review, it was charged with providing detached appraisals of the agency’s management practices and with rooting out the misuse of grant funds and conflicts of interest. In this the office worked closely with the Justice Department and the FBI.40
The NIH hired Schriver to head its new auditing division in 1963.41 Schriver, who died in 1999, was a native of Carlisle, Washington, an Olympic Peninsula town so small it scarcely appears on maps, even today. He earned a bachelor’s degree in business administration at the University of Oregon in 1939 and in 1945 went to work for the U.S. government, moving through internal auditing positions of increasing responsibility. When he joined the NIH, he had most recently worked in the U.S. Army Audit Agency and the Department of Agriculture investigating, among other things, food stamp fraud. Schriver would, over time, become the man sought out by whistle-blowers at the NIH and the person whom agency directors turned to with thorny, unpalatable problems. (In 1971, when Roderick Murray and the Division of Biologics Standards were under fire from Senator Abraham Ribicoff, the NIH’s then-director Robert Marston asked Schriver to investigate.)42
In the unsmiling photos that peer out occasionally from the archived pages of the NIH’s in-house newspaper, the NIH Record, Schriver looks to be all business. He has a square face and jowls and, at the time of his 1980 retirement, silver hair. The New York Times would later report him to be “widely respected for honesty and fairness.”43 In 1972 the NIH’s parent department, the Department of Health, Education and Welfare, bestowed on him its Superior Service Honor Award, “in recognition of his high professional standards and leadership.” Richard Dugas, who worked for Schriver and flew with him to California to investigate Hayflick, recalls Schriver as “the type when he walked into the room, you knew he was the boss.”44
Nicholas Wade, then a Science reporter, interviewed Schriver in 1976. He recalls him as being “very accountant-like. Quite a grandfatherly type, very slow and patient but very determined…. He presented this as just an accounting issue. These [WI-38] vials were valuable property and it was his job to find out what had happened to them.”45
When Hayflick’s chief lab technician, the tall, likable Nancy Pleibel, decided to follow her boss from Philadelphia to Stanford in the summer of 1968, she left behind the only life she had known, including her newly widowed father and all of her friends. But despite the big geographical leap, and the empty shell of a lab that she and her boss confronted that summer, Pleibel soon knew she had made the right decision.
For her the Hayflick lab continued to be a fine place to work. The job was important. She was contributing to bigger things, and they kept getting bigger: Dr. Hayflick was enterprising, constantly willing to take on another grad student, apply for another grant, travel to another conference. And she and her boss had a very good working relationship. He was decent and, although he was quiet, he didn’t fail to communicate. He made his expectations very clear, right down to the correct way to take phone messages. When he was put out, he never yelled. He spelled out the problem and then spelled out how it should be fixed so that it would not happen again. She had never sensed an ounce of duplicity in him; she couldn’t imagine him playing less than straight with anyone.46
So Pleibel wasn’t alarmed when, in late May 1975, Hayflick explained to her and the rest of the staff that some investigators from the NIH would be visiting the lab, looking into something to do with contract management. His NIH project officer, Donald Murphy, would be with them. Pleibel and the rest of the lab staff were to cooperate in every way, answer all the NIH investigators’ questions, and show them whatever they needed to see.
When Pleibel first laid eyes on Schriver, he struck her as belonging in a corporate office. He wore a suit; he was tall; he moved and spoke like a man from that world. He had with him two colleagues who also wore suits. Richard Dugas, thirty-seven, was an easygoing former high school football player and self-described “family man” with a bachelor’s degree in economics from Providence College in his native Rhode Island, who was hired by Schriver in 1966. Chris Curtin, a bald, trim, dapper man in his early fifties who had taken a two-year accounting course at Benjamin Franklin University in Washington, DC, had a dry wit but agonized over his work—over the costs, to people’s reputations, of making mistakes. Schriver had supervised Curtin at the Department of Agriculture before hiring him away to the NIH.47
Over the course of the next three consecutive days, Schriver, Dugas, and Curtin interviewed Hayflick at length and inspected the Hayflick lab. In a return visit the next month that lasted another three days, they searched freezers, counted ampules, and pored over Cell Associates’ invoices and bank statements.48 And Schriver asked what seemed to Hayflick’s technician, Pleibel, to be endless questions. The questions were unsettling to Pleibel for two reasons. First, they often betrayed a lack of understanding of how a lab functioned and what cell culture was all about. There was, for instance, the moment when Schriver found several ampules of WI-38 lying on the bottom of a liquid-nitrogen freezer, rather than clipped in place on the long, unwieldy canes that hung down in the freezers. (A cane is a long, straight metal rod with slots that hold ampules.)
There was a simple explanation for how they got there. In the process of retrieving ampules from a liquid-nitrogen freezer, they occasionally got dropped and fell to the bottom of the freezer. This was no surprise: to retrieve ampules, a technician had to wear the equivalent of a welder’s mask, in case the ampule exploded, and big, gray insulated gloves, and then peer down into the freezer as the liquid nitrogen steamed up in his or her face, and then wield a pair of forceps to extract the ampule from the cane. It was no easy matter, and when the occasional ampule got dropped, it was simplest to leave it where it had fallen at the bottom and select another. The fallen ampule could be retrieved at some future point, when the freezer was drained of liquid nitrogen. Now that future point had arrived, and Schriver found ampules scattered on the bottom of a freezer. “Are these being hidden?” Pleibel, in a 2013 interview, recalled Schriver asking.49
Schriver’s questions also became increasingly adversarial as the days went by. It seemed to Pleibel that he was looking for something that he wasn’t finding, and that he was becoming convinced that Pleibel and others on the lab staff were hiding that something. “He was trying to press like an attorney to get us to say things that we didn’t know about or didn’t have the information. And he was getting frustrated,” Pleibel recalled. “It seemed like he didn’t believe what we were saying.”
Schriver had arrived in the lab, Pleibel decided, with a preconceived idea that there should be a specific number of frozen ampules of WI-38, and that he was going to account for every single one of them. Confronted with what would emerge as Hayflick’s less-than-meticulous record keeping, this accounting turned into an exercise in teeth-grinding frustration.
At one point, Pleibel recalled, Schriver told her that if his team was not able to get the information that they wanted on this trip, there could be a Senate investigation. The lab staff would have to go back to testify in Washington. Pleibel wasn’t intimidated. She felt she had nothing to hide.
She also thought that Schriver was disruptive, wandering around the lab, picking things up, asking a question here, a question there. The staff couldn’t plan, didn’t know when they would be interrupted, worried about maintaining sterility, grew upset. Finally Pleibel asked to meet privately with Murphy, the NIH program officer. They met in the lobby of the Holiday Inn near Stanford’s Palm Drive. (Pleibel remembers the setting vividly because the lobby looked out on the hotel pool, and as she spoke with Murphy, a man emerged from his morning swim, stark naked.) She asked Murphy to ask Schriver to tamp it down. Things improved, somewhat. And then, as suddenly as they had appeared, the NIH investigators were gone.
After first being interviewed by Schriver in late May 1975, Hayflick got on a plane. His journey took him to the Queen Elizabeth Hotel in Montreal, Canada, for the Twenty-sixth Annual Meeting of the Tissue Culture Association. With him he carried two bottles. They contained cultures of WI-38 cells—young cells, at just the tenth population doubling level. In Montreal he handed the bottles to officials from Connaught Laboratories, Ltd., of Toronto, Canada’s major vaccine maker. The company had recently licensed Plotkin’s rubella vaccine from the Wistar and wanted to ensure that it had the WI-38 cells it would need to produce the vaccine.50 Connaught agreed to pay Hayflick $5,000 for the two cultures.51
That Hayflick continued to sell the cells as the government investigators trolled through his lab is testament either to his naïveté or his bullheadedness—or, perhaps, to a sense of obligation to the company; it seems at least possible that the sale was arranged several weeks in advance of the meeting, before the Schriver investigation began. Whatever his motive, Hayflick never collected the $5,000 from Connaught for the cells—the last ones he would pass out in the name of Cell Associates. When officials from the Canadian company asked him several months later why he hadn’t billed them, Hayflick said he hadn’t had time.52
On the same day that he handed off the cells in Montreal, Hayflick called Lamont-Havers, the acting director of the NIH, and told him he was withdrawing as a candidate for the directorship of the National Institute on Aging.53 Hayflick knew that he was in trouble—but not yet just how much.
During his first interview with Schriver in May 1975, Hayflick told Schriver, according to Schriver’s documentation of that meeting, that he hoped the investigation could be resolved without having it discussed with Stanford University officials. Schriver said he thought that would be possible.54 But by June, after consulting with senior NIH officials, he had changed his mind.55
On June 17, 1974, Schriver met with Clayton Rich, Stanford’s vice president for medical affairs and the dean of the Stanford School of Medicine. Also present was John J. Schwartz, a Harvard Law School graduate who was assistant vice president and counsel for medical affairs. Schriver briefed the men on what he had learned of Hayflick’s activities with WI-38, and then they summoned Hayflick to Rich’s office. Schriver’s documentation of the meeting states that this was the point at which Hayflick revealed Cell Associates’ contract with Merck.56
But what Hayflick remembers of this meeting is that, as he entered, Rich was behind his desk and Schwartz was sitting off to one side. The first words that anyone spoke came from Schwartz, who said to Hayflick: “You better get a lawyer.”57
Schriver, Dugas, and Curtin made several trips in the coming months, tracking down and interviewing Hayflick’s commercial customers and other key recipients of the WI-38 cells. Curtin and Dugas visited Connaught Laboratories in Toronto and Pfizer’s offices in New York City. Schriver went to the Institute of Immunology in Zagreb and visited officials at the Medical Research Council in London. He interviewed Perkins, the former MRC vaccine regulator, who was by then at the World Health Organization. He spoke with Koprowski at the Wistar Institute. And he called Donald Brooks, the Merck attorney who, according to Hayflick, had established that Hayflick owned the WI-38 cells. Brooks told Schriver that the company had entered the pricey contract with Hayflick only after Hayflick attested that he owned the cells, and that NIH concurred.58
In between trips, back at the NIH, Schriver became deeply absorbed in the Hayflick case. He spent hours in building 1 on the NIH campus, meeting with top officials—in particular sixty-year-old Leon Jacobs, the NIH’s associate director for collaborative research.
Jacobs, a Brooklyn native with a quick-trigger temper, was known for his work on blindness caused by the parasite Toxoplasma gondii. He had been at the NIH for most of the previous four decades. It was perhaps Hayflick’s misfortune that in the mid-1960s Jacobs had been the scientific director in the Division of Biologics Standards. Jacobs may well have been offended by Hayflick’s 1972 excoriation of the DBS at the U.S. Senate—particularly Hayflick’s description of the “undirected and subordinate role” of scientific research in the DBS, his contention that this lack of leadership was suppressing the potential of the DBS’s capable biologists, and his suggestion that DBS scientists should be allowed to move on to better opportunities “where they will enjoy a full flowering of their capabilities.”59
Whether or not Jacobs allowed Hayflick’s humiliating Senate testimony to influence his initial attitude toward Hayflick, the senior NIH official developed an animus toward Hayflick as Schriver’s investigation continued.
In the summer of 1975, Jacobs had been put in charge of an internal NIH committee intended to get a handle on and then supervise the ongoing use of the WI-38 cells. Jacobs was the man who, according to Merck, had one year earlier told the company that Hayflick owned the trove of young WI-38 cells at Stanford.60
Jacobs insisted to Schriver that he had said nothing of the kind but had merely ascertained, when an employee named Fritz Miller phoned him from Merck in July 1974, that there was no agreement between the U.S. government and the Wistar that would have allowed the Wistar to own a patent on the cells, if indeed one existed. It did not, and he told the company that too.61 Later Jacobs telephoned Brooks at Merck and wrote a memo to the record: “Mr. Brooks informed me that, regarding Merck’s dealings with Dr. Hayflick, Merck relied strictly on Dr. Hayflick’s representations—and not on any information obtained during a telephone conversation with me or anyone else.”62
Brooks was not entirely forthcoming with Jacobs. A July, 1974, memo entitled “WI-38 Human Diploid Cells” written by Fritz Miller after his consequential conversation with Jacobs and copied to Maurice Hilleman, Brooks, and other Merck executives reads in part:
“A question was raised whether Dr. Hayflick had rights to the cells to offer them for sale. Dr. Leon Jacobs of the NIH had a search of the records made by counsel and he told me by telephone on 7/11/74 that there is no patent that the NIH knows about…. Accordingly, Dr. Jacobs is of the opinion that Dr. Hayflick is free to sell the cells. We should now be able to proceed with the development of a price to offer Dr. Hayflick.”63
In the summer of 1975 Schriver also consulted with the NIH’s legal adviser, thirty-seven-year-old Richard J. Riseberg, another Harvard Law School graduate, who would go on to positions of increasing seniority at the NIH’s parent Department of Health, Education and Welfare. Riseberg consulted the original 1962 NIH contract under which Hayflick had developed WI-38—the document which stated that, when the contract ended, the contractor agreed to transfer title to the government of any and all materials developed under it by the contractor. He examined the minutes of the January 1968 meeting where the disposition of the cells was decided. He looked at the letter from the NIH to the Wistar following up that meeting, affirming the arrangements for the cells to be transferred to the American Type Culture Collection on March 1, 1968, and reasserting the agency’s ownership of the cells. And he concluded that the WI-38 ampules that Hayflick had taken to Stanford belonged to the NIH.64
In July, less than two months after Schriver and his deputies first visited Hayflick’s Stanford lab, Riseberg contacted the criminal division of the Department of Justice. Lawyers there took a month looking over the facts of the case, then declined to launch a criminal probe.65 They told the NIH that the agency would be more likely to get the result it wanted—the return of all of the young WI-38 cells to the NIH, along with all of the money that Hayflick had collected—by launching a civil proceeding; the agency’s passive acquiescence in Hayflick’s possession of the cells between 1968 and 1975 would make a criminal case difficult to win.66
In August 1975, two months into the Schriver investigation, Hayflick, Ruth, and their two eldest daughters took a trip to Israel, where Hayflick attended a scientific conference. He was miserable during the trip. When he returned, it was to a call from Schriver’s lieutenant, Dugas, informing him that NIH officials would be taking the WI-38 ampules from his lab beginning on August 19.67
Over the next eight days those officials—who had called around to find an airline that would allow them to carry those liquid-nitrogen refrigerators that looked like bombs in the cabin (United would not; TWA would)—collected Hayflick’s entire remaining stock of low-passage WI-38 ampules and delivered it to the American Type Culture Collection in nearby Rockville, Maryland.68 The cells had at last landed at the facility where the NIH had intended them to be transferred fully seven years earlier, when Hayflick left the Wistar Institute.
Soon after the transfer, John Shannon, who headed the ATCC’s cell culture department, drafted a memo to the cell bank’s director, Dick Donovick. Shannon reported that the federal scientists had delivered to the ATCC 103 ampules of young WI-38 cells. Of these, 46 were ninth-generation cells and 57 were the youngest, eighth-passage cells. These 57 were what remained of the 375 eighth-passage ampules that Hayflick had moved to Stanford from the Wistar in 1968. Since their arrival at the ATCC, Shannon added, two of the eighth-passage ampules had exploded. The rest of the cells, he wrote, “are properly inventoried, racked on canes, and stored in a separate liquid nitrogen refrigerator (MVE Model VPS 3500).” They are kept, he added, “under daily surveillance.”69