Chichester Chemical Co. v. United States

• Decision Date: 06 April 1931
• Docket Number: No. 5016.,5016.
• Citation: 60 App. DC 134,49 F.2d 516
• Parties: CHICHESTER CHEMICAL CO. et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — District of Columbia Circuit

60 App. DC 134, 49 F.2d 516 (1931)

CHICHESTER CHEMICAL CO. et al. v. UNITED STATES.

No. 5016.

Court of Appeals of District of Columbia.

Argued March 3, 1931.

Decided April 6, 1931.

C. H. Merillat and P. H. Marshall, both of Washington, D. C., for appellants.

L. A. Rover, of Washington, D. C., for the United States.

Before MARTIN, Chief Justice, and ROBB, VAN ORSDEL, HITZ, and GRONER, Associate Justices.

GRONER, Associate Justice.

This is a libel filed by the United States August 20, 1920, to condemn certain drugs, known as "Chi-ches-ters, Diamond Brand, New Style Pills," as misbranded, in violation of the Food and Drugs Act. There was a trial to a jury in the court below, and a verdict and judgment in favor of the government. An amended libel was filed November 28, 1921, which charged that the drug was misbranded, in that the booklet placed in each package of pills contained statements which were false and fraudulent within the intent and purpose of section 8, paragraph 3, of the act. Act of June 30, 1906, c. 3915, § 8, 34 Stats. 771, as amended by Act of Aug. 23, 1912, c. 352, 37 Stats. 416, 21 USCA § 10. The statements which the libel charges were false and fraudulent are as follows:

"`Relief for Ladies. * * * Worth proved * * * Reliable. Effective * * * a standard, reliable remedy for functional derangements of the female organism. * * * a standard and reliable remedy * * * for Amenorrhoea (Suppression of the menses, due to colds, ill-health and other morbid causes). * * * For Dysmenorrhoea (Painful or scanty menstruation). The intensity of suffering varies. In some, the pain is moderate, continuing only a few hours, or it may be agonizing as to cause fainting, and undermine the patient's health. In all such cases, we earnestly recommend that a regular course of treatment with Chi-ches-ters Diamond Brand Pills be taken at each period for three or four months, when our remedy will be found to give lasting benefit and genuine relief * * * To prevent difficult, painful, over-profuse and other morbid menstrual conditions, and to keep this important function normal, take one pill three times daily for a few days before the expected re-appearance of the menstrual flow. Our Diamond Brand Pills can confidently be depended upon * * * `Worth any money to suffering females. * * * No lady should think of being without this valuable remedy, and avoid long suffering. * * * Can not be surpassed * * * For severe pain they can not be surpassed for relief given * * * they are truly wonderful. * * *'"

Section 8 of the Drugs Act, as amended (21 USCA § 10), provides: For the purposes of this act, an article shall also "be deemed to be misbranded; In case of drugs: * * * If its package or label shall bear or contain any statement, design, or device regarding the curative or therapeutic effect of such article or any of the ingredients or substances contained therein, which is false and fraudulent."

The assignments of error on this appeal relate, first, to the refusal of the trial court to permit to be read in evidence letters of instruction and directions from appellant to his attorney, written between the years 1908 and 1920, and a certain other letter from appellant to Drug Inspector Kathe, the purpose in offering the letters being to show appellant's good faith in the preparation of its advertising literature; second, the admission in evidence by the court, over the objection of the company, of a certified copy of a record of the Department of Agriculture containing an alleged formula, or list of ingredients entering into the composition of the pills; third, that the court erred in so broadening the inquiry before the jury as to permit the government to show that the pills were useless in cases of menstrual trouble caused by cancer, tuberculosis, and other diseases, notwithstanding a fair construction of the language used in the pamphlet confined its claims to value as a cure for amenorrhoea due to colds, anemia, and other like causes; and, finally, that the court erred in submitting the case to the jury at all because the evidence failed to show intentional fraud.

The pills were first put on the market in 1881, and were manufactured for the then owner of the formula by Parke, Davis & Co. Since 1915 they have been manufactured by Arner & Co., who are said to be the largest manufacturing chemists in the United States. The challenged literature was changed from time to time, but had been used as it was when suit was brought for several years. The pills are said to contain four ingredients, namely, two grains of extract of cotton root bark, one-fourth grain of extract of hellebore, one-half grain of iron sulphate, one-half grain of aloes.

Since, after careful consideration, we have reached the conclusion that the court erred in rejecting the letters from appellant which were offered in evidence, we shall discuss the other assignments only as they relate to the first.

The rejected correspondence between Chidester, who then owned the formula, and his counsel began in February, 1908 — twelve years before the institution of the suit in this case. The first letter in the correspondence directed counsel to deliver to the head of the Bureau in Washington copies of the decisions in three federal cases involving infringements in which the Chichester Company had been successful, and directed him to go over these decisions with the law officers of the government. The letter also noted an...