United States v. 363 CASES, ETC.

• Decision Date: 01 August 1956
• Docket Number: Civ. A. No. 565.
• Citation: 143 F. Supp. 219
• Parties: UNITED STATES of America, Libelant, v. 363 CASES, MORE OR LESS, "MOUNTAIN VALLEY MINERAL WATER", each containing 6 one-half gallon bottles, and 81 five-gallon carboys, more or less, of an article of food and drug, et al., Mountain Valley Sales Company, a corporation; John G. Scott, H. B. McFarling, Claimants.
• Court: U.S. District Court — Western District of Arkansas

143 F. Supp. 219

UNITED STATES of America, Libelant, v. 363 CASES, MORE OR LESS, "MOUNTAIN VALLEY MINERAL WATER", each containing 6 one-half gallon bottles, and 81 five-gallon carboys, more or less, of an article of food and drug, et al., Mountain Valley Sales Company, a corporation; John G. Scott, H. B. McFarling, Claimants.

Civ. A. No. 565.

United States District Court W. D. Arkansas, Hot Springs Division.

August 1, 1956.

Paul Steffy, Food & Drug Div., Dept. of Health, Education & Welfare, Washington, D. C., Charles W. Atkinson, U. S. Atty., Henry M. Britt, Asst. U. S. Atty., Ft. Smith, Ark., for plaintiff.

Wright, Harrison, Lindsey & Upton, Little Rock, Ark., Wootton, Land & Matthews, Hot Springs, Ark., Robert F. Schlafly, St. Louis, Mo., J. F. Schlafly, Jr., Alton, Ill., for defendant.

JOHN E. MILLER, District Judge.

The motion of libelant for judgment "in accordance with the motion for directed verdict" is before the court for consideration and disposition. The trial of this case to a jury began on May 21 and was concluded on June 2, 1956, when the jury returned into open court the following verdict:

"We, the jury, find the issues in this case in favor of the claimant defendants, Mountain Valley Sales Company, John G. Scott, and H. B. McFarling, and against the libelant plaintiff, United States of America."

Judgment was entered in accordance with the verdict.

On May 31, 1956, at the conclusion of the evidence in chief adduced by claimants, the libelant filed its written motion for a directed verdict which, omitting the formal parts, is as follows:

"The uncontroverted evidence in this case shows that Mountain Valley Mineral Water is recommended and suggested for use as a food for special dietary uses because of its mineral content. The labels on both sizes of bottles seized failed to bear the information required by 21 U.S. C. § 343(j) and 21 C.F.R. 125.4. For this reason the mineral water is, as a matter of law, misbranded within the meaning of 21 U.S.C. § 343 (j) and should be condemned pursuant to 21 U.S.C. § 334(a) and (b)."

Upon the presentation of the written motion, the following occurred:

The Court: "Now, this motion of the plaintiff, or libelant, for a directed verdict on the question of the alleged misbranding of the water as appearing in the exhibits, the bottles introduced here, raises this question. Water may be considered a food under the statute when used for dietary uses. Now, if the court were satisfied that this water was recommended for special dietary uses, then I think the motion probably should be granted, but I am not certain at all on that. I find here in the Government's request * * * and the reason I am referring to this is the fact that this request, as made, is not a waiver of the motion. I am referring to it for this reason. Your special requested instruction No. 8 deals with the subject and outlines the statute which requires certain information to be upon the label of a product that is used for dietary purposes or a food. I think that is a question which the court must submit to the jury. Likewise, the claimants have requested an instruction, No. D, covering the same subject as the request of the Government, special request No. 8. * * * I am inclined to think that this is a jury question. I think the jury should be told if they find that it was recommended for special dietary purposes, then as a matter of law the label on the bottle is not sufficient, and the water is subject to condemnation. I think that is the law.

Mr. Robert Schlafly: "Your Honor, may I state one other reason why we think the motion ought to be denied. That is, any particular pamphlet or as to four of the pamphlets there is an issue as to the fact whether it is labeling. Even if a particular pamphlet may be found to represent the water as a food for special dietary use, the jury might find that pamphlet was not labeling."

Mr. Steffy: "Your Honor, on that point, of course, the representation and suggestions that a food is for special uses need not appear on the label. It is a question of what is represented to the public whether it is labeling or advertising or what you have. If those representations are made, be it in the labeling or anywhere else, in that case these particular points of information must appear on the label."

The Court: "I am not certain by any means that the representation for dietary use is made, so I am going to submit the question, among other questions, to the jury. What I am trying to do is to take claimants' special instruction D and plaintiff's special instruction 8 and take the meat out of both of them and consolidate them on that particular question. And, therefore, I am going to overrule your motion and let your exceptions be saved."

Mr. Steffy: "In addition to the motion which was typed out, we didn't have time to type out a motion for directed verdict on the ground that the water is misbranded as a drug because its label is false and misleading, because of the charge that it will aid or assist tetany due to deficiency in the parathyroid gland. Both the evidence of the claimants and Government establishes that fact. When you recall that Dr. Killian was testifying to the long list of things that the water would do, that is the one thing to which he said `No' instead of `Yes'."

The Court: "The additional motion for directed verdict will be overruled and exceptions saved."

Following the overruling of the written motion for directed verdict and the oral motion, the libelant proceeded to introduce its rebuttal testimony and called Dr. John Paul Frawley and Dr. Oliver C. Melson. Upon the conclusion of the rebuttal testimony adduced by the libelant, the defendant introduced John Eibert as a witness in surrebuttal.

The libelant did not renew either of its motions for directed verdict at the conclusion of all the testimony.

At the conclusion of all the testimony and in the absence of the jury, the greater portion of the afternoon was consumed in discussing with counsel the various requests and the action that the court proposed to take in reference to the requests, and also in reviewing for the benefit of counsel the instructions that the court proposed to give to the jury. After the argument by counsel and before the jury retired to consider its verdict, the court in chambers and in the absence of the jury stated to counsel:

The Court: "Now, gentlemen, you have heard the instructions read to the jury as given by the court, and now in the absence of the jury counsel for the libelant may dictate such specific objections as you may have to the instructions as given by the court."

Mr. Steffy: "The libelant has no objections except for the failure to direct a verdict upon the charge that the water is misbranded because it fails to bear statements required by Section 343(j) of the Federal Food, Drug, and Cosmetic Act, since it is represented as a food for special dietary uses because of its mineral content, and also because the water was misbranded, by the testimony of both sides, in regard to the charge that representations were made that it was effective in tetany due to chronic diarrhea and disturbances of the parathyroid glands."

The Court: "All right. Objection overruled. Is that all, Mr. Steffy?"

Mr. Steffy: "Yes, sir."

Following the return of the verdict and entry of judgment thereon and on the same date, the libelant filed the motion now before the court. Omitting the formal parts of the motion, it is as follows:

"(1) The uncontroverted evidence in this case shows that Mountain Valley mineral water is recommended and suggested for use as a food for special dietary uses because of its mineral content. The labels on both sizes of bottles seized failed to bear the information required by 21 U.S.C. § 343(j) and 21 C.R.F. 125.4. For this reason the mineral water is as a matter of law misbranded within the meaning of 21 U.S.C. § 343(j) and should be condemned pursuant to 21 U.S.C. § 334 (a) and (b).

"(2) For further grounds, libelant urges that all of the evidence in the case with respect to the charge that the article is falsely represented as effective treatment for tetany due to disturbances of the parathyroid glands, including that adduced by the claimants, is to the effect that statements and representations are made for such condition, and the water will not provide the promised benefits."

The libelant on its brief states:

"In connection with the charge in the libel that the water was misbranded within the meaning of 21 U.S.C. § 343(j) in that it purports to be and is represented as a food for special dietary uses because of its mineral content and its labeling fails to bear information required by the regulations, the only question presented for the consideration of the jury was whether the water purported to be and was represented as a food for special dietary uses by reason of its mineral content.

"It is the Government's contention that the evidence in this case concerning this issue was uncontroverted, and that the jury's verdict, finding that the water was not represented as a food for special dietary use by reason of its mineral content, is contrary to the uncontroverted evidence, and for that reason should be set aside and judgment entered for the United States of America.

"In connection with the charge that the water was misbranded within the meaning of 21 U.S.C. § 352 (a) because of representations in the labeling concerning tetany due to chronic diarrhea or disturbances of parathyroid gland, we also contend that the evidence was uncontroverted, that the jury's verdict is contrary to such evidence, should therefore, be set aside, and judgment entered on behalf of the United States of America."

The claimants on their brief state:

"The Government's motion asks, in effect, for a judgment notwithstanding the verdict on two grounds, violation of Section 343(j) and of Section 352(a). The motion should be denied because

"(1) The charge as to Section 352(a) is

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