AH Robins Company v. Fadely

• Citation: 299 F.2d 557
• Decision Date: 14 February 1962
• Docket Number: No. 18828.,18828.
• Parties: A. H. ROBINS COMPANY, Inc., Appellant, v. Kathlynn P. FADELY, d/b/a Physician's Apothecary and Physician's Apothecary, Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

299 F.2d 557 (1962)

A. H. ROBINS COMPANY, Inc., Appellant, v. Kathlynn P. FADELY, d/b/a Physician's Apothecary and Physician's Apothecary, Appellees.

No. 18828.

United States Court of Appeals Fifth Circuit.

February 14, 1962.

Jack B. Porterfield, Jr., Birmingham, Ala., Arthur J. J. Bohn, Fort Lauderdale, Fla., Robert J. Habenicht, Richmond, Va., for appellant.

J. S. Mead, Emmett R. Cox, Birmingham, Ala., for appellees, Mead, Norman & Fitzpatrick, Birmingham, Ala., of counsel.

Before RIVES, CAMERON and BROWN, Circuit Judges.

CAMERON, Circuit Judge.

Appellant Robins, plaintiff below, appeals from a judgment by the court below dismissing its petition for an order to show cause why appellee, Mrs. Fadely, defendant below, should not be adjudged in contempt of court for the alleged violation of a consent decree for injunction restraining appellee from substituting and passing off the product of another for the product of the plaintiff known as "Donnatal." The consent decree of injunction was entered December 2, 1957 and enjoined appellee "from infringing plaintiff's trademark `Donnatal' and from substituting and passing off the product of another for the product of the plaintiff when selling, offering for sale or filling prescriptions, upon calls for any product of the plaintiff."¹

Upon appellant's petition for order to show cause, accompanied by affidavits, the court below entered, January 9, 1959, an order requiring appellee to show cause why she should not be punished for contempt of court for violating the consent decree which had been entered December 3, 1957, by substituting the product of another manufacturer in filling prescriptions calling for "Donnatal." Appellee answered, denying that she had violated the order. The parties thereupon promptly availed themselves of the discovery procedures of F.R.Civ.P., which occupy about forty-five pages of the printed record. A number of these procedures were the subjects of contests before the court. Thereupon, the action was submitted to the court below by the testimony of seventeen witnesses and a number of exhibits, and the trial court entered its judgment on May 26, 1960 dismissing the petition and order to show cause which it had theretofore entered, incorporating in its decree its findings of fact and conclusions of law pertinent portions of which are reproduced in the margin.²

In its argument before us, appellant contends that the court below committed six errors³ which, singly or cumulatively, require a reversal. A careful consideration of these specifications of error leads us to the conclusion that they are without merit and that the judgment appealed should be affirmed.

Appellant's first contention is that the trial court placed upon it an illegal burden, stating in its conclusion of law: "This is a civil contempt action and to warrant punishment therefor the alleged contemptuous acts of the defendant must be established by clear and convincing evidence, and while proof beyond a reasonable doubt is not required, doubt should be resolved in favor of the defendant * * *" The argument is directed solely against the last clause in the foregoing quotation — "doubt should be resolved in favor of the defendant." Appellant concedes, as it must, that in a civil contempt action, guilt must be established by clear and convincing evidence.⁴ Just preceding the language appellant challenges the court below had stated unequivocally that "proof beyond a reasonable doubt is not required * *" Despite that clear statement of the standard the trial court was laying down for itself, appellant construes the ensuing clause as expressing the opinions of the trial court that proof was required beyond all doubt. Appellant's position is clearly without merit and no convincing authority is cited in support of it. The entire sentence used by the court below indicates clearly that it meant that it acted on the principle that proof was not required to be made beyond a reasonable doubt, but that doubt as to whether the evidence against appellee measured up to the requirements of clear and convincing should be resolved in favor of appellee. The construction appellant seeks to give to the concluding words of this sentence would throw them entirely out of step with all of the words which had gone before them, and would make this statement of the burden of proof clash with other statements in the court's findings that it was not satisfied from all of appellant's evidence that appellee had violated the injunction.

Specifications of Errors Nos. II, III, and IV, note 3 supra, relate to the "tracer" now conceded by appellant to have been presented in Donnatal, and will be treated together. There is confusion in the arguments about what the parties and the court below did with respect to the tracer evidence and its impact upon the trial, and a somewhat detailed look at this feature of the case is indicated.

The "tracer" made its first appearance in the trial when, on February 9, 1959, appellee propounded written interrogatories to appellant under Rule 33, F.R. Civ.P., 28 U.S.C.A. Interrogatory No. 9 was in these words: "State whether or not `Donnatal' contains any `tracer' or other chemical which makes `Donnatal' readily identifiable; (a) If your answer to this interrogatory is in the affirmative, give the name of the chemical used." February 24, appellant filed its application for reconsideration of its objections, which had manifestly been presented to the court orally, to answering Interrogatory No. 9 inter alia. The application for reconsideration set forth five reasons for its objections.⁶ March 16, appellant, through David A. Mefford, its Chief Control Chemist, filed its answer to appellee's interrogatories, Answer No. 9 being as follows:

"Plaintiff will not rely on the presence of a tracer to establish the existence of substitution."

March 26, the court below filed its order on appellant's application for reconsideration, supra, which order contained these provisions:

"Upon consideration of such application, the Court declines to reconsider its oral rulings on plaintiff\'s objections to defendant\'s interrogatories, announced to counsel on February 13, 1959, and embodied in its written order of March 11, 1959, except that plaintiff is relieved of the duty to respond to defendant\'s interrogatory No. 9; provided, however, if plaintiff declines to answer interrogatory No. 9, it may not, upon the hearing of this cause, introduce evidence, directly or indirectly, relating to the existence in its product, `Donnatal,\' of any `tracer\' or other chemical which makes such product identifiable.

"It is further Ordered, Adjudged and Decreed by the Court that plaintiff\'s original answers to defendant\'s interrogatories be retained by the Clerk of this Court under seal until published by order of this Court."

According to the record, therefore, the court below gave appellant Robins the option of answering or not answering whether "Donnatal" contained a tracer which would make it readily identifiable; it provided in each of its orders that the answers would be kept secret until published by an order of the court; and it provided that, if the appellant elected to refuse to make any disclosure concerning the tracer, the court would not permit any proof concerning it to be made at the trial. And, subject to these conditions, the appellant voluntarily answered that it would not "rely on the presence of a tracer to establish the existence of substitution."

It is not accurate to say, therefore, that the court below forbade the introduction of evidence of the tracer evidence by appellant. What it actually did was to give appellant the free and unfettered option to make a secret revelation of the identity of the tracer, restricting appellant's right to make proof concerning the tracer only if it voluntarily declined to make known the chemical which was used as a traced in response to appellee's interrogatories. It is manifest that appellee could not prepare itself to meet proof concerning the tracer if offered at the trial without having the tracer identified in advance in order that she could prepare her proof. It is further plain that appellant made its own election whether it would disclose the identity of its tracer or forego the right to make proof of it at the trial.

Under these conditions we do not think the trial court committed error in giving weight to the fact that the appellant elected to omit proof that Donnatal did contain a chemical tracer which would make the product "readily identifiable," choosing instead "to rely entirely upon a delicate chemical analysis * * *"⁷

Appellant seeks to support its position that it was error for the court below to give any consideration at all to the election made by it to withhold altogether any evidence concerning the tracer. The authorities it cites⁸ deal with highly favored privileged communications such as those between physician and patient, and between attorney and client. We do not think they are persuasive here.

The rule applicable here is thus stated in 4 Moore, 2d Ed., page 2468:⁹

"Most of the cases dealing with questions of privilege involve the attorney-client privilege and the privilege against disclosure of government files and documents * *

"There is no true privilege against discovery of trade secrets or other `confidential\' business information, but the courts nevertheless will exercise their discretion to avoid unnecessary disclosure of such information, particularly where the action is between competitors * * *"

The provisions of Rule 30(b) control: "* * * for good cause shown, the court in which the action is pending may make an order * * * that secret processes, developments, or research need not be disclosed, or that the parties shall * * * file specified documents or information enclosed in sealed envelopes to be opened as directed by the court * *."

The District Court leaned over backward to give appellant the...