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UNITED STATES v. 363 CASES

August 1, 1956

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.



The opinion of the court was delivered by: 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:

    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 not
  properly before the Court on this motion. It relates
  to the `tetany claim' and requires a preliminary
  finding that the pamphlet `Your Health Begins with
  Nature' was labeling. The Government did not ask for
  a directed verdict on the ...

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