Janda v. Riley-Meggs Industries, Inc., Civ. A. No. 89-71690.

• Decision Date: 21 May 1991
• Docket Number: Civ. A. No. 89-71690.
• Citation: 764 F. Supp. 1223
• Parties: David H. JANDA, Plaintiff, v. RILEY-MEGGS INDUSTRIES, INC., a Canadian company, and Ron Foyt d/b/a Megg-Nets U.S.A., a Minnesota citizen, Defendants.
• Court: U.S. District Court — Western District of Michigan

764 F. Supp. 1223

David H. JANDA, Plaintiff, v. RILEY-MEGGS INDUSTRIES, INC., a Canadian company, and Ron Foyt d/b/a Megg-Nets U.S.A., a Minnesota citizen, Defendants.

Civ. A. No. 89-71690.

United States District Court, E.D. Michigan, S.D.

May 21, 1991.

Mark A. Cantor, Earl J. LaFontaine, Elizabeth F. Janda, Brooks & Kushman, Southfield, Mich., for plaintiff.

Mark E. Straetmans, Berry, Moorman, King & Hudson, Detroit, Mich., for defendants.

MEMORANDUM OPINION AND ORDER GRANTING IN PART, AND DENYING IN PART, FOR SUMMARY JUDGMENT

GADOLA, District Judge.

Jurisdiction is proper based on diversity of citizenship. Plaintiff filed a motion for summary judgment March 6, 1991. Defendants Riley-Meggs Industries, Inc. and Ron Foyt filed a response April 2, 1991. Plaintiff then filed a reply April 17, 1991. The court heard oral argument May 1, 1991.

BACKGROUND FACTS

Dr. David H. Janda, plaintiff, is an orthopaedic surgeon licensed to practice medicine in Michigan. Defendant Riley-Meggs Industries, Inc. ("Riley-Meggs") is a Canadian corporation which manufactures and sells softball and baseball bases called "Megg-Nets." Defendant Ron Foyt ("Foyt") is the sole distributor of Megg-Nets bases in the U.S.

Plaintiff claims that he has gained a significant reputation as a result of his substantial research and his published articles on preventive medicine in the sports medicine field. Plaintiff claims his most recognized study has been the three-part study (the "University of Michigan study") of softball and baseball injuries due to sliding and the prevention of these injuries by the use of a particular type of detachable base. The base used in plaintiff's University of Michigan study was a base invented by Mr. Roger Hall and currently marketed as the Rogers Break Away Base™.

Plaintiff claims he began his study of softball sliding injuries and their possible prevention in 1984. In the first phase of his study he discovered that 71% of softball injuries were due to sliding. His research culminated in an article published in American Family Physician.

Plaintiff then examined various bases on the market and chose to use the Rogers base in his University of Michigan study. Plaintiff claims that for four years he studied softball sliding injuries and how the use of the Rogers base could help to prevent such injuries. In this second phase of the study, plaintiff and his co-authors concluded that 96% of sliding injuries could be prevented, and 99% of acute medical care costs associated with sliding injuries could be prevented with the use of the base he used in his study. Phase II of the research was incorporated in an article published in the March 25, 1988 issue of the Journal of the American Medical Association and titled "A Prospective Study: Base Sliding Injuries — Stationary vs. Break-Away Bases."

Plaintiff claims that the Center for Disease Control in Atlanta independently extrapolated the figures from his study and concluded that nation-wide use of the base from this study could save $1.2 billion in medical care costs annually. Plaintiff claims he presented the results from the third phase of his study at the national meeting of the American Academy of Orthopaedic Surgery in February 1989.

Plaintiff claims that since the beginning of his study in 1984, he has given over 50 radio and television interviews relating to his study, and his results have been reported nationally and internationally in newspapers and magazines. Plaintiff claims that as a result of this study, he has received national and international exposure and recognition.

In 1989 plaintiff received the "Excellence in Research Award" in epidemiology from the American Orthopaedic Society for Sports Medicine, which plaintiff claims is the award for the most outstanding clinical research in sports medicine in the country. In addition, plaintiff claims that the integrity and credibility of his name and reputation are widely recognized in Michigan, throughout the United States, and internationally.

Defendant Riley-Meggs Industries, Inc. ("Riley-Meggs") is a Canadian corporation which manufactures and sells a softball or baseball base, called the "Megg-Nets" base, in Canada and the United States. Defendant Ron Foyt is the sole distributor of those bases in the United States. Plaintiff contends that the Megg-Nets base is a detachable base that, unlike the Rogers base used in the University of Michigan study, uses magnets as a means of affixation.

Plaintiff claims that the torts in this action arise from alleged false and deceptive advertising practices used in connection with defendants' sale of the Megg-Nets base. Plaintiff submits that since the March 25, 1988 publication of the second phase of the University of Michigan study, defendants have engaged in the unauthorized use of his name and the study for defendants' own advertising purposes and commercial gain and, in addition, have made false representations as to the safety of the Megg-Nets bases.

Plaintiff asserts that defendants began using flyers (Exhibit A) to advertise and promote the sale and use of the Megg-Nets base. Plaintiff alleges that the advertising falsely represents that Dr. Janda and his University of Michigan studies relating to softball injuries specifically endorse the Megg-Nets base. The advertising states "STUDY SUPPORTS MAGNETIC BASE," and refers to the study conducted by Dr. Janda at the University of Michigan "... and reported in the Journal of American Medical Association." In addition to quoting plaintiff from his article, the ad stated, "We know from previous studies that more than 70 percent of softball injuries are sliding injuries because the players just don't know how to slide, Janda said. It made sense that something like this breakaway base would help and we are delighted with the results." Exhibit A (emphasis added). Plaintiff contends that reference to "this breakaway base" falsely leads the reader to believe that the Megg-Nets base, which is the subject of the advertising, is the base to which Dr. Janda referred.

The advertisement goes on to quote the Center for Disease Control's conclusions about the significance of plaintiff's study by stating, "... If Janda's results were extrapolated nationally, this would indicate that stationary bases are responsible for 1.7 million injuries a year, resulting in $1.5 to $2 billion in medical costs. The breakaway bases, in contrast, would be involved in 70,000 injuries, at a cost of $24 million." Exhibit A. Plaintiff contends that this leads the consumer to believe that these results can be reached through the use of the Megg-Nets base when there is allegedly no evidence to support that claim.

The reverse side of the advertisement was a letter to "Park & Rec" personnel. The letter claims that the Megg-Nets base can reduce injuries by 96% as shown by Dr. Janda's study.

Are you concerned about sliding injuries, the high cost of liability or how often you need to replace bases? If so, you will be interested in the MEGG-NET SUPER BASE SYSTEM. This system features a magnetic break-away base that can reduce injuries by 96%. (See the reverse side for more information gathered in a recent study by the University of Michigan.)

Exhibit A. By specifically referring to Dr. Janda and his University of Michigan study, plaintiff claims that defendants falsely communicated that Dr. Janda supported and endorsed the Megg-Nets base.

After learning of defendants' advertising, plaintiff formally notified defendants that they were not authorized to use his name or the University of Michigan study to promote the sales of their products. In a certified letter of March 10, 1989, plaintiff demanded that defendants cease all use of the objectionable advertising, cease all use of his name and reference to his study, and provide him with information to allow him to contact purchasers to inform them that he did not endorse their product.

Plaintiff filed suit in state court April 20, 1989, alleging that defendants' actions (1) constituted false representations and federal unfair competition in violation of 15 U.S.C. § 1125; (2) constituted unfair trade practices in violation of the Michigan Consumer Protection Act (M.C.L.A. § 445.901 et seq.) and the Pricing and Advertising Act (M.C.L.A. § 445.351 et seq.); and (3) constituted an invasion of privacy and misappropriation of plaintiff's name and reputation for defendants' commercial advantage. Defendants subsequently removed the matter to federal court.

Plaintiff contends that by defendants' allegedly false representations and deceptive trade practices, they have caused and continue to cause (a) irreparable harm to plaintiff and his reputation, and (b) deception and false understanding in the public. Plaintiff seeks summary judgment on the issue of liability on the issues of false advertising, unfair and deceptive trade practices, and misappropriation of plaintiff's name and reputation for defendants' commercial gain.

STANDARD OF REVIEW

Under Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment may be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." "A fact is `material' and precludes grant of summary judgment if proof of that fact would have the effect of establishing or refuting one of the essential elements of the cause of action or defense asserted by the parties, and would necessarily affect the application of appropriate principles of law to the rights and obligations of the parties. Citation omitted." Kendall v. Hoover Co., 751 F.2d 171, 174 (6th Cir.1984) (quoting Black's Law Dictionary 881 (6th Ed.1979)). The Court must view the evidence in a light most favorable to the nonmovant as well as draw all reasonable inferences in the non-movant's favor. See United...