The opinion of the court was delivered by: John E. Miller, Chief Judge.
On June 13, 1961, the costs in the above entitled case were
taxed by the Clerk of the Court in the sum of $7,085.50. On June
14, 1961, claimants H.B. McFarling, John G. Scott, and Mountain
Valley Sales Company filed their motion under Rule 54(d), Fed.R.
Civ.P., 28 U.S.C.A., to review the taxation and to retax the
costs in accordance with the objections set forth in the motion.
There are no objections to items 1, 4, 7 and 8, but the
claimants object to a portion of items 2, 3, 5 and 6, and ask the
court to "disallow the part of such expenses incurred in
libelant's unsuccessful effort to prove its charges of false
claims under Sections 352(a) and 343(a) of the Act, as alleged in
paragraphs 3 and 5 of the libel."
The libel was originally filed in the United States District
Court for the Western District of Tennessee on August 19, 1953.
An examination of D.C.W.D.Ark. 1953, 117 F. Supp. 110;
D.C.E.D.Ark. 1955, 135 F. Supp. 333; United States v. United
States District Court, etc., 8 Cir., 1955, 226 F.2d 238; United
States v. 363 Cases, etc., D.C.W.D.Ark. 1956, 143 F. Supp. 219;
United States v. 353 Cases, etc., 8 Cir., 1957, 247 F.2d 473, and
United States v. Miller, 8 Cir., 1958, 256 F.2d 89, will disclose
the course that this proceeding has followed since its filing.
The case was finally tried to a jury May 21 to June 2, 1956. At
the close of the claimants' evidence, the Government filed a
written motion for directed verdict on the ground that the
uncontroverted evidence showed that the Mountain Valley mineral
water was recommended and used as a food for special dietary uses
because of its mineral contents; that the labels on both sizes of
bottles failed to bear the information required by 21 U.S.C.A. §
343(j), and 21 C.F.R. § 125.4. For this reason the mineral
was, as a matter of law, misbranded within the meaning of
21 U.S.C.A. § 343(j), and should be condemned pursuant to
21 U.S.C.A. § 334(a) and (b). The motion was denied, the case was
argued to the jury, and immediately after the instructions to the
jury were given by the court, counsel were called upon, in the
absence of the jury and before the jury retired to consider its
verdict, to state their objections, if any, to the instructions.
Whereupon counsel for the Government said:
"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 * * *." 247 F.2d 476-477.
The jury returned a verdict in favor of the claimants and
against the libellant, and judgment was entered upon the verdict.
In due time the libelant filed its motion for judgment
notwithstanding the verdict on two grounds, which motion,
omitting the formal parts, 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.F.R. [Sec.] 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."
143 F. Supp. 222.
The motion was denied, and an appeal to the United States Court
of Appeals for the Eighth Circuit was perfected.
Of the eight pamphlets seized in the distributor's place of
business and introduced in evidence, the claimants conceded that
four were "labeling." The Government contended that four
additional pamphlets were also "labeling." The claimants
contended that the four disputed pamphlets were not labeling
because the evidence showed that they had not been used by the
distributor in connection with selling the water in Memphis, but
all of the pamphlets were approved advertising matter and
available upon request.
At page 478 of 247 F.2d, the court said:
"We do not propose to set out in this opinion all
of the statements in all of the pamphlets, which the
Government contends were conclusively shown by the
evidence to constitute `labeling', representing that
the water has `special dietary uses'. From the sales
literature received in evidence, it is clear that the
water was recommended for such uses."
At page 480 of 247 F.2d, the court said:
"We think that all of the sales literature received
in evidence was, as a matter of law, `labeling' * *
and that the question whether the literature was
`labeling' was not an issue for the jury."
"Our conclusion is that the water in suit was
conclusively shown to be misbranded, because it was
represented, by its labeling, for special dietary
uses and because the labels on the bottles did not
contain the information required by the applicable
"The judgment appealed from is reversed, and the
case is remanded with directions to enter a judgment
Upon the filing of the mandate, this court on December 19,
1957, entered a judgment, to the provisions of which the libelant
objected. The libelant filed a petition for writ of mandamus,
which was heard by the Court of Appeals on May 28, 1958, and the
court directed the Judge of this court to amend the judgment that
had been entered on December 19, 1957, "by eliminating paragraph
2 and striking out in paragraph 5 the words, `which are directly
referable to the misbranding adjudged herein.'" 256 F.2d 89-90.
Accordingly, on October 24, 1958, the court amended the
judgment, and on October 28, 1958, the Court of Appeals found
that since "the said order or amended judgment is in accordance
with the opinion, ruling and order of this court, it is,
therefore, now here ordered and adjudged by this court that the
petition for writ of mandamus be, and it is, hereby dismissed."
Title 21 U.S.C.A. § 343, is as follows:
"A food shall be deemed to be ...