Griffin v. O'Neal, Jones & Feldman, Inc.

• Decision Date: 14 March 1985
• Docket Number: No. C-1-84-1228.,C-1-84-1228.
• Citation: 604 F. Supp. 717
• Parties: Kevin GRIFFIN, et al., Plaintiffs, v. O'NEAL, JONES & FELDMAN, INC., et al., Defendants.
• Court: U.S. District Court — Southern District of Ohio

604 F. Supp. 717

Kevin GRIFFIN, et al., Plaintiffs, v. O'NEAL, JONES & FELDMAN, INC., et al., Defendants.

No. C-1-84-1228.

United States District Court, S.D. Ohio, W.D.

March 14, 1985.

Stanley M. Chesley, Waite, Schneider, Bayless & Chesley, Cincinnati, Ohio, for plaintiffs.

James Q. Doran, Cincinnati, Ohio, Charles R. Janes, Trial Atty., Knepper, White, Arter & Hadden, Columbus, Ohio, for defendants; Michael R. Gallagher, Gallagher, Sharp, Fulton & Norman, Cleveland, Ohio, of counsel.

OPINION AND ORDER GRANTING MOTION TO DISMISS

SPIEGEL, District Judge:

This matter came on for consideration of the motion to dismiss filed by defendants Carter-Glogau Laboratories, Inc. and Revco D.S., Inc. (doc. 6). A brief in opposition has been filed by plaintiffs (doc. 11), to which defendants have replied (doc. 13). For the reasons set forth below, we hereby Order that counts four and six be stricken from plaintiffs' Complaint and, consequently, that plaintiffs' Complaint be dismissed in its entirety, as we are without jurisdiction to hear their case.

Plaintiffs Kevin and Maureen Griffin, individually, and as Next Friends and Guardians of their minor daughter Meghan, seek recovery from all defendants based on events that had their inception when Meghan was born prematurely at Good Samaritan Hospital in Cincinnati, Ohio. They sue for damages for themselves and for Meghan that stem from injuries suffered by her as a result of the administering of E-Ferol Aqueous Solution to her for an extended period of time following her birth. Plaintiffs assert seven causes of action: negligence; breach of the warranty of merchantibility and fitness for an intended purpose; strict liability; violation of the Federal Food, Drug and Cosmetic Act (FDCA); fraud; violation of Title IX of Organized Crime Control Act (hereinafter the Racketeer Influenced and Corrupt Organizations Act or RICO); and willful and wanton conduct. There exists no diversity of citizenship between the parties. Rather, plaintiffs claim jurisdiction by way of 28 U.S.C. § 1331, citing their allegations of liability grounded on the FDCA and RICO, both federal statutes, and upon the doctrines of pendent and ancillary jurisdiction.

Through their motion to dismiss, defendants challenge sufficiency of plaintiffs' federal claims under the FDCA and RICO, arguing that no private cause of action can be implied under the former and that the facts of this case are inapplicable to the latter. If defendants are correct on both counts, we would lack federal question or "arising under" jurisdiction. Absent diversity of citizenship, this case would warrant dismissal, thus leaving plaintiffs to their remedies in state court.

Specifically, pursuant to Rules 12(b)(1) and 12(b)(6), Fed.R.Civ.P., defendants move for an order striking counts four (FDCA) and six (RICO) of plaintiffs' Complaint and then for dismissal of plaintiffs' Complaint for lack of subject matter jurisdiction. The standard of review by which we are bound has been set forth in Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). A motion to dismiss ought not to be granted "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Id. at 45-46, 78 S.Ct. at 101-102 (footnote omitted). In addition, we must "accept as true all the well-pled allegations in the complaint under attack." Great Lakes Steel v. Deggendorf, 716 F.2d 1101, 1105 (6th Cir.1983); Westlake v. Lucas, 537 F.2d 857, 858 (6th Cir.1976). It is within this framework that we evaluate defendants' motion.

I

The Federal Food, Drug and Cosmetic Act (FDCA), 21 U.S.C. § 301 et seq., is a public protection statute, one designed, among other things, to keep misbranded and/or adulterated articles from entering interstate commerce. See United States v. Walsh, 331 U.S. 432, 434, 67 S.Ct. 1283, 1284, 91 L.Ed. 1585 (1947). Congress has provided criminal penalties to be imposed on those found to violate the prohibited acts set forth in § 331. It is clear from the face of the statute that no civil private right of action exists. Notwithstanding this omission, plaintiffs ask this Court to imply a cause of action because "there is no language contained in the statute that prohibits a civil claim" (doc. 11, p. 4, emphasis ours). In response, defendants represent that no court considering the issue has ever implied a civil cause of action under the FDCA and that we ought to rule similarly.

Our research confirms, and plaintiffs do not dispute, defendants' contention that there is no legal precedent supporting plaintiffs' theory that private citizens may bring suit against alleged violators of the FDCA. See, e.g., Pacific Trading Co. v. Wilson and Co., Inc., 547 F.2d 367 (7th Cir.1976); National Women's Health Network, Inc. v. A.H. Robins Co., Inc., 545 F.Supp. 1177 (D.Mass.1982); Keil v. Eli Lilly and Co., 490 F.Supp. 479 (E.D.Mich. 1980); Gelley v. Astra Pharmaceutical Products, Inc., 466 F.Supp. 182 (D.Minn.), aff'd on other grounds, 610 F.2d 558 (8th Cir.1979). While it is true that none of these cases serve as binding precedent upon us, we are inclined to follow them. In particular, we believe that Judge Nelson's treatment of the question presented is a correct application of the legal issues at hand. See National Women's Health Network, 545 F.Supp. at 1178-80.

Assuming we were not wont to adopt the findings of the Seventh Circuit and the district courts listed above, we could undertake an independent analysis of whether we ought to imply a private right of action under the FDCA pursuant to Cort v. Ash, 422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975), and its progeny. In Cort, of course, the Supreme Court teaches that four factors merit attention when divining a private remedy: (1) did the legislature intend for plaintiffs to be within the protected class; (2) did the legislature intend, in any fashion, to create a private cause of action; (3) would the legislative purpose be compromised if a private right were implied; and (4) would an implied right under federal law interfere with a state's province to regulate a particular area? Id. at 78, 95 S.Ct. at 2088. See also Cannon v. University of Chicago, 441 U.S. 677, 689-709, 99 S.Ct. 1946, 1953-1964, 60 L.Ed.2d 560 (1979). These four factors, however, do not command equal weight. Rather, the intent of Congress looms as the all-important inquiry. See Daily Income Fund, Inc. v. Fox, 464 U.S. 523, 104 S.Ct. 831, 839, 78 L.Ed.2d 645 (1984); Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Curran, 456 U.S. 353, 377, 102 S.Ct. 1825, 1838, 72 L.Ed.2d 182 (1982); Middlesex County Sewerage Authority v. National Sea Clammers Ass'n, 453 U.S. 1, 13, 101 S.Ct. 2615, 69 L.Ed.2d 435 (1981); Northwest Airlines, Inc. v. Transport Workers Union of America, 451 U.S. 77, 91, 101 S.Ct. 1571, 1580, 67 L.Ed.2d 750 (1981); Transamerica Mortgage Advisors, Inc. v. Lewis, 444 U.S. 11, 23-24, 100 S.Ct. 242, 249, 62 L.Ed.2d 146 (1979); Touche Ross & Co. v. Redington, 442 U.S. 560, 568, 99 S.Ct. 2479, 2485, 61 L.Ed.2d 82 (1979). As a result of these recent rulings, it is apparent that the Supreme Court intends to limit the availability of private causes of action, a trend recognized by our parent circuit. See, e.g., Rauchman v. Mobil Corp., 739 F.2d 205, 207 (6th Cir.1984); Howard v. Pierce, 738 F.2d 722, 731 (6th Cir.1984) (Engel, J., dissenting).¹

In support of the position that the FDCA permits a private civil cause of action, plaintiffs proffer policy arguments. They maintain that the Food and Drug Administration (FDA) is overworked and underfunded; consequently, society is exposed to unapproved—and presumably unsafe— drugs. Plaintiffs present their case as the "perfect" example of the FDA's impotence to afford protection to citizens using licit drugs. They allege that defendants

marketed more than fifty (50) unapproved drugs despite government warnings... ; improperly marketed more than a dozen other drugs in unapproved strengths and sizes as well as thirty-four (34) vitamin and mineral products... ; and received sixteen (16) letters between 1976 and 1981 informing it that the FDA considered some of its products unsafe or ineffective,

(doc. 11, p. 5), all without FDA sanction. Plaintiffs characterize the FDA's inaction as a helpless inability instead of a deliberate unwillingness to act. Naturally defendants have a differing view of the significance of these facts, assuming, for argument's sake, that they are true. We need not resolve said conflict, however. In essence, plaintiffs ask us to imply a private remedy because, in so doing, we only would be furthering Congress's purpose in enacting the FDCA—that is, preventing introduction of misbranded and/or adulterated drugs into the stream of commerce. Plaintiffs thus urge that we focus on Factor Three of the Cort v. Ash analysis. But because the recent relevant Supreme Court case law forbids us from considering Cort's third factor before we are satisfied that we have met the second, we cannot adopt the reasoning urged upon us by plaintiffs.²

We have established that the plain language of the FDCA implies no civil private right of action. Neither plaintiffs nor defendants cite any legislative history to the Court. Judge Nelson, though, in National Women's Health Network, indicates that a rejected version of the FDCA would have incorporated a private right of action for damages. 545 F.Supp. at 1179-80. Given this legislative indication, albeit indirect, and the actual statutory language, we do not hesitate in concluding that Congress intended no private remedy under the FDCA.

There being "no set of facts" entitling plaintiffs to relief on their claim grounded on a violation of the FDCA, defendants' motion to dismiss is granted in part and plaintiffs' fourth cause of action is Ordered stricken from the Complaint.

II

Plaintiffs' Complaint also claims jurisdiction arising under Title IX of the ...