United States v. 4 CANS, ETC., Civ. No. 786

• Decision Date: 06 January 1955
• Docket Number: 787,Civ. No. 786,793,794 and 797.,792
• Citation: 127 F. Supp. 243
• Parties: UNITED STATES of America, Libelant, v. 4 CANS, ETC., MASTER LIQUID; 1 can Master Liquid; 35 jugs Master Liquid and 2 mimeographed letters; 55 bottles Master Liquid and 1 mimeographed letter dated July 30, 1953; 2 cans Master Liquid; 7 jugs Master Liquid and one 4 page leaflet, etc. John E. von Dorn, liquidating trustee of Master Laboratories, a co-partnership, Claimant in each case.
• Court: U.S. District Court — Northern District of Iowa

127 F. Supp. 243

UNITED STATES of America, Libelant,

v.

4 CANS, ETC., MASTER LIQUID; 1 can Master Liquid; 35 jugs Master Liquid and 2 mimeographed letters; 55 bottles Master Liquid and 1 mimeographed letter dated July 30, 1953; 2 cans Master Liquid; 7 jugs Master Liquid and one 4 page leaflet, etc.

John E. von Dorn, liquidating trustee of Master Laboratories, a co-partnership, Claimant in each case.

Civ. Nos. 786, 787, 792, 793, 794 and 797.

United States District Court, N. D. Iowa, W. D.

January 6, 1955.

F. E. Van Alstine, U. S. Atty., Sioux City, Iowa, for libelant.

John E. Von Dorn, Omaha, Neb., for libelees.

GRAVEN, District Judge.

On December 14th, 1954 at the Federal Court House at Sioux City, Iowa there came on for hearing the motions of the Libelant for summary judgment in the above entitled actions. F. E. Van Alstine, United States District Attorney, appeared as attorney for the Libelant in support of said motions. John E. von Dorn appeared as attorney for the Claimant in resistance thereto. It was there agreed between the attorney for the Libelant and the attorney for the Claimant that the said motions be submitted on written briefs and arguments. The attorney for the Libelant thereupon submitted a written brief and argument on its behalf. On December 21st, 1954 the attorney for the Claimant submitted a written brief and argument on behalf of the Claimant, and the said motions were thereupon submitted to the Court and by it taken under advisement. The Libelant submitted affidavits in support of its motion for summary judgment. The Claimant submitted affidavits in connection with its resistance thereto.

The Court now being fully advised in the premises finds:

1. The Master Laboratories was and is a co-partnership consisting of John E. von Dorn and Agnes C. von Dorn. John E. von Dorn is the liquidating trustee of said partnership which is the Claimant herein. The principal place of business of said partnership is in the City of Omaha, Douglas County, Nebraska.

2. For a number of years the Claimant has been engaged in selling in interstate commerce a liquid preparation styled and known as "Master Liquid" or "Master Liquid Hog Medicine". The labels of the preparation contained claims or representations to the effect that the preparation would be beneficial and efficacious in the prevention or cure of a swine ailment commonly referred to as "Necro". The preparation is directed to be used in slop feed for swine.

3. On March 18th, 1949 the United States of America instituted an action in the Cedar Rapids Division of this District which action was Civil Action No. 325 in that Division. For convenience in reference that action will be referred to as Civil Action 325. That action was entitled as follows:

United States of America Libelant vs.

7 Cans, more or less, 3 Gallons each, and 3 cans, more or less, 5 Gallons each of an article of drug labelled in part: "Master Liquid Hog Medicine"; and 43 leaflets entitled "Master Treatment For Brood Sows",

Libelee.

4. In Civil Action 325 the Libelant claimed that the "Master Liquid" preparation which was the subject matter of the action had been shipped in interstate commerce. The Libelant further claimed that the said liquid preparation was misbranded under the provisions of that portion of 21 U.S.C.A. Section 352 which provides: "A drug * * * shall be deemed to be misbranded—(a) If its labeling is false or misleading in any particular." The Libelant asked for the seizure and condemnation of the liquid preparation which was the subject matter of the action under the provisions of 21 U.S.C.A. § 334. The Claimant in the present actions intervened as a Claimant in the action and contested the claims of the Libelant in regard to the liquid preparation. Starting on May 9th, 1950 a Court trial of substantial length was had as to the matters in issue between the Libelant and Claimant. The Libelant presented the testimony of eight expert witnesses. The Libelant's evidence included the results of tests of "Master Liquid" in connection with "Necro". The Claimant presented the testimony of seven expert witnesses. The testimony of the expert witnesses covers over 400 pages of the transcript of the evidence. It was the claim of the Libelant that the swine ailment commonly referred to as "Necro" was of bacterial origin. It was the claim of the Claimant that "Necro" was "caused primarily or that it follows at least from a nutritional deficiency." (Transcript p. 4). It was the claim of the Claimant that alkaline solutions were of benefit in remedying the claimed nutritional deficiency and that the "Master Liquid" was a preparation which would increase the alkalinity of the slop feeds fed to swine, and thereby prevent or cure "Necro". The evidence of the Libelant was to the effect that the Claimant's claim that "Necro" was caused by nutritional deficiency was not well founded. The evidence of the Libelant was to the effect that the Claimant's claim that an alkaline solution would be of benefit in the prevention or cure of "Necro" was not well founded. The evidence of the Libelant was to the effect that adding "Master Liquid" to slop feed had the effect of decreasing the alkalinity of the feed.

On May 20th, 1950 the Court filed its Findings of Fact, Conclusions of Law and Order for Judgment in Civil Action No. 325. In its Findings, the Court among other Findings made the following Findings:

"Finding 11. * * * In common speech, swine are said to be suffering from "Necro" when they are afflicted with Necrotic Enteritis. Necrotic Enteritis is a disease caused by bacteria known as Salmonella Cholerasuis.

"Finding 14. There is no credible or adequate scientific or medical foundation for any claim or representation that the use of Master Liquid Hog Medicine will prevent Necrotic Enteritis in swine.

"Finding 15. There is no credible, adequate, scientific or medical foundation for any claim or representation that the use of Master Liquid Hog Medicine will cure Necrotic Enteritis in swine.

"Finding 16. It clearly and satisfactorily appears that Master Liquid Hog Medicine is without efficacy or benefit in the treatment of Necrotic Enteritis in swine.

"Finding 17. It clearly and satisfactorily appears that Master Liquid Hog Medicine is without efficacy or benefit in the prevention of Necrotic Enteritis in swine.

"Finding 18. It clearly and satisfactorily appears that the ingredients of Master Liquid Hog Medicine, whether used separately or in combination, are without efficacy or benefit in the treatment or prevention of Necrotic Enteritis in swine however used or administered."

The Court further...