United States v. An Article or Device Consisting of 31 Units, Civ. A. No. 19428.
| Decision Date | 04 November 1959 |
| Docket Number | Civ. A. No. 19428. |
| Citation | 180 F. Supp. 52 |
| Parties | UNITED STATES of America v. AN ARTICLE OR DEVICE CONSISTING OF 31 UNITS (cabinet and chair), more or less, labeled (metal plate on cabinet) "GONSERTRON CORPORATION," an unknown number of additional chairs, and pamphlets entitled "Gonsertron Therapy—A New Concept in the Field of Electrotherapy". |
| Court | U.S. District Court — Western District of Michigan |
Fred W. Kaess, U. S. Atty., Donald F. Welday, Jr., Asst. U. S. Atty., Detroit, Mich., for libelant.
Oscar W. Baker, Baker & Baker, Bay City, Mich., Robert A. Jenkins, Hill, Lewis, Andrews, Granse & Adams, Detroit, Mich., of counsel, for claimant.
This is a motion to dismiss the Government's libel of information, filed pursuant to 21 U.S.C.A. § 334, against an electrotherapy device consisting of "31 units (cabinet and chair), more or less, labeled (metal plate on cabinet) `Gonsertron Corporation,' an unknown number of additional chairs, and pamphlets entitled `Gonsertron Therapy—A New Concept in the Field of Electrotherapy.'"
The accused device was manufactured by the Gonsertron Corporation in Michigan. Nine component parts received by the corporation from various states in the union were used in the manufacturing process. These component parts are in common use in industry. None of them were made to the specifications of the manufacturer of the device. The device was not sold or held for sale outside of the State of Michigan.
Sec. 334(a) of 21 U.S.C.A. provides that a misbranded device may be proceeded against on libel of information and condemned in any District Court of the United States within the jurisdiction where the article is found "when introduced into or while in interstate commerce or while held for sale (whether or not the first sale) after shipment in interstate commerce."
The Government agrees that the manufactured device was not introduced in interstate commerce or held for sale in interstate commerce. It contends, however, that Sec. 321(h) of 21 U.S.C.A. defines device to mean "instruments, apparatus, and contrivances, including their components, parts, and accessories," and therefore concludes that since some of the components used in the manufacture of the device were transported in interstate commerce, the device must also be considered to have been introduced in interstate commerce. Sec. 321(h) merely provides that if a device is subject to libel, all the component parts and accessories are also subject to libel....
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United States v. 14 CASES, ETC.,(BAG)" NAREMCO MEDI-MATIC
...290 (N.D.N.Y. 1960), rev'd, 289 F.2d 343 (2d Cir. 1961); United States v. An Article or Device Consisting of 31 Units . . ., 180 F.Supp. 52 (E.D.Mich.1959). The ingredient shipped in the instant case was an active ingredient, however, and this is sufficient to bring these drugs within the p......
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Baker v. U.S.
...whole argument relies on a thirty-year-old case from the Eastern District of Michigan, United States v. An Article or Device Consisting of 31 Units (Gonsertron), 180 F.Supp. 52 (E.D.Mich.1959). There, the district court, in a six-paragraph decision, dismissed the government's motion to seiz......
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United States v. 40 CASES, MORE OR LESS, ETC.
...do not have such similar facts present here. Persuasive reasoning to support the claimant is found in United States v. An Article or Device Consisting of 31 Units, D.C., 180 F.Supp. 52; Penobscot Poultry Co. v. United States, 1 Cir., 244 F.2d 94. However, the best answer seems to be common ......
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United States v. 40 CASES, ETC.
...93 L.Ed. 61. The appellee relies heavily, as did Judge Foley in dismissing the libel, on United States v. An Article or Device Consisting of 31 Units (Gonsertron), D.C.E.D.Mich.1959, 180 F.Supp. 52. That case has been limited considerably by a more recent decision by the same district judge......