ZIRIN LABORATORIES INTERNAT'L, INC. v. Mead-Johnson & Co.

• Decision Date: 28 June 1962
• Docket Number: Civ. No. 21365.
• Parties: ZIRIN LABORATORIES INTERNATIONAL, INC., Plaintiff, v. MEAD-JOHNSON & COMPANY, McKesson & Robbins, and Lambert & Lowman Incorporated, Defendants.
• Court: U.S. District Court — Western District of Michigan

208 F. Supp. 633

ZIRIN LABORATORIES INTERNATIONAL, INC., Plaintiff, v. MEAD-JOHNSON & COMPANY, McKesson & Robbins, and Lambert & Lowman Incorporated, Defendants.

Civ. No. 21365.

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

June 28, 1962.

Cullen, Sloman & Cantor, Detroit, Mich., for plaintiff.

Woodson, Pattishall & Garner, Chicago, Ill., and Harness, Dickey & Pierce, Detroit, Mich., for defendants.

TALBOT SMITH, District Judge.

1. Plaintiff's complaint, as first amended, was an action to recover damages caused by defendants' alleged trademark infringement and unfair competition. Plaintiff alleged that defendants' product, METRECAL, is an imitation of plaintiff's products NATURCAL and NATROCAL. Defendants moved for summary judgment under Fed.Rules Civ. Proc. Rule 56(b), 28 U.S.C.A., on the ground that plaintiff's President, Mr. Benjamin Zirin, admitted in his deposition of September 14, 1961, that plaintiff had not been damaged by defendants' conduct.

2. Plaintiff subsequently asked leave of the court to further amend its complaint. Leave was granted, and plaintiff's second amended complaint was filed. This amendment added to the claim for damages a prayer for injunctive relief and an award of defendants' profits. Defendants' motion has therefore been transformed into a motion for partial summary judgment, addressed only to that part of the second amended complaint which reiterates plaintiff's demand for damages.

3. During the taking of Mr. Zirin's deposition, counsel for defendants asked him to particularize as to the "loss of sales and loss of customers" which the complaint says resulted from defendants' conduct. His reply was: "I can't recall." He was also asked to describe any instance where defendants' product had been "palmed off" as plaintiff's products, as charged in the complaint. Again, the reply was: "I can't recall." Mr. Zirin was unable to recall a single instance in which METRECAL was even sold in competition with NATURCAL or NATROCAL.

4. Defendants argue that these equivocal and obviously unsatisfactory answers constitute an admission by plaintiff that it has not been damaged by defendants' manufacture and sale of METRECAL and that defendants are therefore entitled to summary judgment on the issue of damages. Plaintiff contends, on the other hand, that Mr. Zirin's inability to recall any specific instances of lost sales or customers when asked "out of a clear sky" is by no means an admission that plaintiff has not suffered any such damages. Plaintiff vigorously contends that it "has a right to wait for the trial to prove damages" and has chosen not to avail itself of the opportunity to convince the court, by affidavits or other means, that a genuine issue of material fact exists on this question.

5. The weak point of defendants' argument is that it requires the court to make the inference, from Mr. Zirin's inability to recall any instances of damage, that no such damage in fact existed. This court believes that, as a general rule, such an inference should be made, if at all, by the trier of fact, and not by the court on a motion for summary judgment. As well-put in 6 Moore, Federal Practice § 56.116, at 2080 (2d ed. 1953):

"Rule 56(c) includes `admissions on file' within its enumeration of materials that may be considered on a motion for summary judgment. This is quite proper for if a party has admitted certain facts that are admissible in evidence there is then no triable issue as to these matters. But courts should avoid turning an inference, which the trier of facts might draw, into an admission, and should insist that the statement or conduct of the party clearly measures up to an admission in the case at bar."

Where a party's pleadings, depositions, and other materials filed with the court suggest the existence of a fact fatal to his cause of action or his defense, but the inference, however strong, is merely permissive and not conclusive, established discovery procedures provide the opposing party with adequate tools to remove the cloud of doubt surrounding the inferred fact before he brings his motion for summary judgment.

6. In the case at hand there can be no doubt that the statements made by Mr. Zirin in his deposition suggest very strongly that his company, in fact, suffered no damages as the result of the activities of the defendants, but the astute and persistent interrogation by defendants' counsel failed to induce Mr. Zirin to make an unequivocal statement to that effect. In view of plaintiff's allegation that it has been damaged in the rather substantial amount of some four million dollars, one cannot help wondering how...