United States v. 143 PACKAGES EACH CONTAINING 3 BOTTLES OF NUE-OVO, 7408.

• Citation: 51 F. Supp. 1
• Decision Date: 26 August 1943
• Docket Number: No. 7408.,7408.
• Parties: UNITED STATES v. 143 PACKAGES EACH CONTAINING 3 BOTTLES OF NUE-OVO (RESEARCH LABORATORIES, Inc., Intervener).
• Court: U.S. District Court — Western District of Washington

51 F. Supp. 1

UNITED STATES v. 143 PACKAGES EACH CONTAINING 3 BOTTLES OF NUE-OVO (RESEARCH LABORATORIES, Inc., Intervener).

No. 7408.

District Court, W. D. Washington, S. D.

August 26, 1943.

J. Charles Dennis, U. S. Atty. and Harry Sager, Asst. U. S. Atty., both of Tacoma, Wash., for libellant and plaintiff.

Eisenhower, Hunter & Ramsdell, of Tacoma, Wash., and Harry G. Hoy, of Portland, Or., for intervenor and defendant.

LEAVY, District Judge.

This is a libel proceeding instituted by the United States of America under the provisions of the Federal Food, Drug and Cosmetic Act, 21 U.S.C.A. § 301 et seq., against 143 packages, more or less, each containing three bottles of a proprietary medicine called "NUE-OVO", which were claimed by Research Laboratories, Inc., as being their property.

The method of labeling in this case was novel and unusual in practice. The sufficiency of the government's libel of information was attacked by the intervenor herein on the ground that it did not state facts sufficient to show a violation of the Federal Food, Drug and Cosmetic Act. After amendment by the government of its original libel of information, the attack was renewed upon the same grounds, and the intervenor's motion to dismiss was sustained by the District Court. Thereupon, the government appealed, and the holding of the District Court was reversed and the cause remanded for trial upon the allegations of the amended libel and the issues made by the further pleadings of the intervenor. United States v. Research Laboratories, Inc., 9 Cir., 126 F.2d 42.

Trial upon the issues as made by the pleadings was by jury, resulting in a verdict finding for the government in its contention that the articles were misbranded by reason of the labeling thereof being false and misleading.

Following the receipt and entry of the verdict herein, plaintiff submitted, upon notice, a form of judgment and decree of forfeiture and condemnation, providing that the United States Marshal shall destroy the said 143 packages of "Nue-Ovo".

At the time fixed by the notice for the presentation of the judgment, the intervenor, Research Laboratories, Inc., appeared and objected thereto, insisting that that part of the decree providing for the destruction of the libeled property should be stricken, and in lieu thereof, a provision made for the sale of the property. The parties requested and were given time to submit written briefs upon this issue.

It is the contention of the intervenor, Research Laboratories, Inc., that under the facts as disclosed in this case, the court is without discretion to order the destruction of the property, and they contend further that if such discretion, as a matter of law,...