Wrongful Death: The AIDS Trial

by Stephen Davis

  Chapter Thirty-Nine

  Ivan Yaeger is on the stand as court resumes after lunch. Mr. Baker seems unshaken by his encounter with the media.

  “Mr. Yaeger, what is your occupation?”

  “I’m a P.A.”

  “And what’s a P.A.?”

  “A Physician’s Assistant.”

  “And how long have you been a P.A.?”

  “More than 35 years. I was trained in the Army as a 91C20 and served as a medic in Vietnam.”

  “Mr. Yaeger, what's a ‘popper’?”

  “A popper is some form of nitrite inhalant.”

  “But why are they called ‘poppers’?”

  “Because they used to come in a small glass ampoule that you had to pop the top off of before you could sniff it.”

  “Let’s take amyl nitrite in particular. Did it come in this glass vial?”

  “Yes, it did.”

  “And why would anyone want to sniff amyl nitrite?”

  “Well, when it first came out, amyl nitrite had a number of legitimate medical uses, for elderly people with angina, for instance – heart pains. You'd just pop it and take a whiff, and it would calm your heart. It was one of the things people did occasionally if they felt a heart attack coming on. It also gave them a rush and a short-lived feeling of euphoria.”

  “You said, Mr. Yaeger, ‘when it first came out.’ Do you know what company discovered, patented, and made a lot of money from its monopoly on amyl nitrite for many years?”

  Yaeger looks over at the defendants’ table. “Yes, it was Burroughs Wellcome.”

  “Was amyl nitrite profitable for Burroughs Wellcome?”

  “Oh, yes. They made a ton of money on poppers.”

  “And what happened to this goldmine for Burroughs Wellcome?”

  “Nitroglycerin happened. Nitro was better, more convenient, and it didn't give you a headache. You just stuck this little pill under your tongue instead of popping a vial.”

  “So what did Burroughs Wellcome do when the sales of amyl nitrite fell off?”

  “They did what Burroughs Wellcome always did when they could no longer sell a drug they have stockpiled. They come up with another use.”

  Crawley doesn’t like the tone of this exchange. “Objection, Your Honor.”

  Judge Watts doesn’t like it either. “Sustained. The witness will refrain from sarcasm and simply answer the questions.”

  Yaeger looks genuinely apologetic. “Sorry, Your Honor.”

  Baker doesn’t let the objection bother him, however. “So who then became the biggest buyer of amyl nitrite – poppers – from Burroughs Wellcome?”

  “The U.S. military. Some marketing genius at Burroughs Wellcome got the Pentagon to believe that amyl nitrite was an antidote to gun fumes.”

  Crawley’s up again. “Objection, Your….”

  Judge Watts doesn’t need Crawley to finish. “Mr. Yaeger, I warned you. Cut the sarcasm. One more time and you're in contempt.”

  “But it’s true, Your Honor.”

  Arguing with Judge Watts is not the smartest thing Yeager can do, which he quickly deduces from the look on her face. Although Yeager was not one to back down very easily, he knew Judge Watts was also not one he wanted to tangle with.

  “Then figure out a different way to tell the court the truth, Mr. Yaeger, without the wisecracks.”

  “Yes, Your Honor.”

  Baker doesn’t want to lose this witness, either. Maybe I can ask the questions differently. “So the Army was buying poppers?”

  “Absolutely. And sending them over to Vietnam by the cratefuls. The soldiers loved it. Here was a very cheap, very effective drug they could add to their... 'chemistry stash'.... And the best thing was, the high they got from doing poppers was completely legal.”

  “And when the soldiers came home from Vietnam, starting in the late ‘60’s?”

  “At first, poppers were available without a prescription in this country, too. So the use of poppers began to spread, fast. But then there were reports of very nasty side effects, and once again Burroughs Wellcome found itself on the losing end, as the FDA restricted the sale of poppers.”

  Crawley’s chair makes that squeaking sound on the floor, which prompts both Judge Watts and Baker to look at him, expecting him to object again. But Crawley didn’t stand or say a word. He must have thought twice and figured Judge Watts had established her own position and would curtail this witness without needing his help any more.

  When Crawley was settled again, Baker continued.

  “What happened next?”

  Crawley apparently changed his mind. “Your Honor, what is this? A history lesson? What's the point?”

  Judge Watts looks at Baker. “What is the point, Mr. Baker?”

  “Your Honor, if the virus called HIV cannot cause AIDS, the question naturally arises: What might cause AIDS instead? If you will give me the opportunity to continue along this line, I believe Mr. Yaeger can start to give us an answer to that question.”

  “And the relevance to this case?” Judge Watts wasn’t letting Baker off that easily.

  “Your Honor, if we have been giving AZT to people who are HIV-positive to supposedly treat their AIDS, and if HIV doesn't cause AIDS, but something else does, then we have been giving the wrong drug to the wrong people, and killing them needlessly and wrongfully. I believe the jury should know that there are other very real possibilities of what might cause AIDS, that we’ve known about from the very beginning.”

  Judge Watts thinks for a few seconds. “All right, Mr. Baker. I get your point. I'll give you ten minutes for this line of questioning.”

  “Thank you, Your Honor. Now, Mr. Yaeger, please briefly tell us what happened after the sale of poppers was restricted by the FDA, some time around 1970 – have I got the date right?”

  “Yes, it was about that time. An enterprising gay medical student in California found out how to alter amyl nitrite just a little, making it butyl nitrite, which wasn't restricted. And then someone else came up with isobutyl nitrite.”

  Baker looks at the lawyer for the FDA, seated at the defense table. “And how did the FDA respond?”

  “They basically looked the other way and allowed the distribution of these new poppers, as long as they were labeled, quote, ‘room odorizor,’ unquote, and marketed strictly to gay men.”

  “How did they regulate that?”

  “They couldn’t, really, and they didn't. But there was kind of an unwritten agreement that was almost never broken to advertise poppers only in gay publications. There were a few exceptions for women's magazines that gay men would read, like Playgirl, but everyone respected this agreement without having to say anything. And poppers ads were a huge chunk of revenue for the gay magazines. There was even a comic strip called Poppers....” There was a chuckle that very quickly ran the length of the courtroom and then stopped on its own.

  “Were they still being sold in those little glass ampoules you had to pop?”

  “No. Now they came in little brown bottles with a convenient screw-off top.”

  “But they kept the name, ‘poppers’?”

  “Yes.”

  Baker pauses for a minute and leans on the lectern, apparently trying to decide on his next question. “And they became popular among gays?”

  “Oh, yes. In the ‘70’s and ‘80’s, poppers were the rage. You'd go into a gay bar and a large percentage of the men on the dance floor would have poppers in their hands. Some disco clubs would even occasionally spray the dance floor with poppers’ fumes. And in the gay baths, there was literally nowhere you could go to escape the smell of these nitrites. It was really amazing. Within only a few years, hundreds of thousands of men were persuaded that poppers were an integral part of their gay identity. Magazine ads in the gay press conveyed the message that nothing could be butcher or sexier than to inhale these noxious chemical fumes. Bulging muscles were linked to a drug that was indisputably hazardous to your health.”

  “Why? What
was so special about poppers?”

  “They were cheap. They were readily available. And they were perfect for the gay community.”

  “How so?”

  Yaeger squirms in the witness chair a little, wondering how he’s going to tastefully give his next answer. “One of the effects of poppers is to...” and he looks specifically at the women in the jury, “…how do I want to say this? Because it is a vascular dilator, it helps create an erection in addition to creating a high, and at the same time, it relaxes the muscles of the anus. The drug also seems to intensify and prolong the sensation of orgasm and deaden the sense of pain.”

  “So it would make it easier and more pleasurable to have anal sex with another man.”

  “With many men. You could finish with one guy, take a short break, take another whiff from a popper, and go at it again with somebody else within minutes. Poppers made for quick, painless anal intercourse. Some guys did this forty, sometimes fifty times a day. It was the perfect gay drug.”

  Baker shuffles through some papers on his table, picks one up, looks at it carefully, then waves it toward Yeager as he asks the next question. “Had there been any research on the side effects of poppers, especially used in that quantity?”

  “No, not at that time – at least, not that the gay community was aware of. The real research didn’t start until the late ‘70’s.”

  “And what did that research find out?”

  “Objection. If Mr. Baker is asking for this witness to talk about the medical side-effects of these so-called poppers, then he isn't qualified...not been established as an expert witness...we have no idea of his credentials to make such pronouncements….” Crawley is visibly shaken and unable to deliver his usual smooth, well-thought-out phrases.

  The Judge notices this as well. “I hear you, Mr. Crawley. And Mr. Crawley does have a point, Mr. Baker.”

  Baker walks toward the Judge’s podium, about half-way. “Yes, Your Honor, I understand. I am not trying to offer this witness as an expert in medicine or the side effects of drugs. I intend to call another witness for that. I'll be happy to phrase my questions to stick to this witness’s personal understanding.”

  Judge Watts is skeptical, but she is also captivated by Mr. Yaeger’s testimony. “I'll let you proceed on that basis for the moment, Mr. Baker.”

  “Thank you, Your Honor. Mr. Yaeger, what did you personally come to believe about the effects of poppers on the human body, based on what you read and heard and knew as part of your profession as a Physician’s Assistant?”

  “I think...it was pretty clear to me that poppers could cause a lot of damage, like anemia, strokes, damage to the heart and lungs, and even the brain, and most importantly, the destruction of the immune system.”

  “Immune deficiency?”

  “Yes.”

  “You're saying that it was known back in the 1970’s that poppers destroyed the immune system?”

  “Well, I knew it then, and apparently others did, too, because the FDA periodically would make some attempt to regulate the sale of poppers. But someone would always get around that by either changing the chemical formula or the product name.”

  “What about the gay publications? Didn't they alert their readers to the dangers of poppers?”

  Yaeger shakes his head No. “They would have lost so much money from the advertising – just like 10 years later with AZT...”

  “Objection.”

  “Sustained. The last part of the witness’s answer will be stricken from the record and the jury is ordered to disregard it.”

  Baker knew he had scored anyway. “So what was the print media’s position on poppers?”

  “Well, one major gay magazine, called The Advocate, ran a series of ads promoting poppers as, quote, ‘a blueprint for health,’ unquote, which gave the impression that poppers – like vitamins, fresh air, exercise and sunshine – were an essential ingredient in a healthy lifestyle for gay men. And the poppers manufacturers made sure that the magazines were constantly reminded about who was the largest advertiser in the gay press – again, just like with AZT...”

  Judge Watts bangs her gavel this time and looks sternly at the witness. “Mr. Yaeger!” Then she looks at the court recorder. “Strike that from the record and, jury, disregard the witness’s last comment. I don't want to have to speak to you again, Mr. Yaeger.”

  Yaeger nods. Baker nods as well. “So poppers were a big business?” Baker asks.

  “The statistic I remember so well is that in 1980, there were 5 million doses of nitrite inhalants sold in the U.S., making the poppers industry 50 million dollars in one year alone. It was a huge business, just like A...,” Yaeger stops himself just in time and looks at the Judge innocently.

  Baker asks the next question quickly, before either Yaeger or the Judge can say anything more. “Mr. Yaeger, going back to the side effects of poppers for a minute, do you recall learning anything yourself about the relationship between poppers and a disease being called Kaposi's Sarcoma, or KS?”

  “Yes, I remember reading a number of studies at that time that proved there was a link between the two. It was my job to keep myself medically informed.”

  “So when a new disease called AIDS showed up in the early 1980’s, predominantly in the gay community who were using poppers extensively, and its chief symptom at that time was this Kaposi's Sarcoma, along with opportunistic diseases that resulted from an immune deficiency, what did you think?”

  “Like a lot of people, I thought it was probably the poppers that were causing it.”

  “Objection.”

  “No, Mr. Crawley.” Judge Watts is not going to stop this testimony. “The witness clearly gave his own opinion and not as a medical expert. Continue, Mr. Baker.”

  “Mr. Yaeger, what happened to change your mind about poppers and AIDS?”

  “I didn’t, Mr. Baker…”

  “You didn’t what, Mr. Yaeger?”

  “I didn’t change my mind. I still think poppers cause AIDS.”

  “But you just said, ‘like a lot of people, you thought poppers caused AIDS.’ What I want to know, I guess, is what made a lot of other people stop believing that poppers were the cause of AIDS?”

  “Objection. Speculation and hearsay.”

  “Sustained. Rephrase your question, Mr. Baker.”

  Baker thinks for a minute. “Mr. Yaeger, what were you, and a lot of other people, being told was the cause of AIDS by Dr. Robert Gallo?”

  “He said it was the HIV and not poppers. And he was supported by the CDC, a name we trusted.”

  “The Center for Disease Control said that poppers were not associated with AIDS?”

  “Yes. Very clearly.”

  “So it was understandable, in your mind, why a lot of people might change their minds that poppers were causing AIDS?”

  “Well, I guess not everyone is as intelligent as I am, and would believe what the authorities say, instead of what the facts dictate, yes.”

  “So the facts were overwhelming, as far as you were concerned?”

  “Yes, unquestionably.”

  “Then why was it so easy to divert the rest of the gay community from poppers as the cause of AIDS?”

  “For one thing, poppers can be highly addictive, in the sense that many gay men who use them find that they're no longer able to enjoy sex without them. I mean, like I said, this was the perfect gay drug. If there were any reason not to blame it for causing AIDS, people would jump on it.”

  “And how about today, Mr. Yaeger. Are poppers still being used?”

  “Well, they're illegal in the U.S. and many places in Canada. But you know, making a drug illegal doesn't ever stop its use. Yes, poppers made a comeback in the 1990’s, but of course, not nearly to the extent like before.”

  “To your knowledge, are there gay men who are using poppers today, getting sick, and dying of AIDS?”

  “Objection, leading the witness and asking for a conclusion.”

  “Sustained.”

>   “Okay….” Baker’s eyes look skyward as he searches for a different way to ask the same question. “Mr. Yaeger, are there gay men using poppers today?”

  “Yes, there are.”

  “Mr. Yaeger, are there gay men getting sick and dying today?”

  “Yes, there are.”

  “And Mr. Yaeger, are there gay men getting sick and dying today who also happened to use poppers?”

  “Absolutely.”

  “Do you think they would stop if they knew that poppers caused AIDS?”

  “Objection. Leading….”

  Judge Watts interrupts Crawley, but somehow it felt like the Judge was not letting Crawley complete his objection so that she could give Baker another chance, rather than having to stop this line of questions completely. “Sustained. Try again, Mr. Baker.”

  “Mr. Yaeger, if the gay community was told by someone in authority in our government that poppers caused AIDS, what do you think they would do?”

  “Objection, calling for a conclusion.”

  “Overruled. Mr. Baker is simply asking for Mr. Yeager’s opinion, which I, too, would like to hear. Mr. Yaeger, please answer the question.”

  “I think they would stop using poppers, Mr. Baker.”

  Baker walks back to the lectern, flips a few pages on his yellow pad, looks at the jury to see whether they are finished digesting the last round of questions, and then continues.

  “Just a couple last, very personal questions, if you don't mind, Mr. Yeager?”

  Yaeger visibly relaxes in the chair, as if the hard part were over. “I don’t mind, Mr. Baker. That’s why I’m here.”

  “You're gay, are you not, Mr. Yaeger?”

  “I am.”

  “So you had first-hand experience with poppers, did you not?”

  “I did.”

  “Did you do, as you said, forty or fifty poppers a day, like the others?”

  “No, I did not. Early on I saw a friend of mine – he was a writer, George Whitmore – dancing in a gay bar with poppers in his jeans. One of the bottles broke and spilled out onto his leg, burning him horribly. I thought, if that's what this stuff does to your skin, what does it do when you inhale it?”

  “But you had friends who did poppers?”

  “Yes, I did. A lot of friends who did a lot of poppers.”

  “What happened to them?”

  “They all died of AIDS.”

  “Thank you, Mr. Yaeger.”