#I2 RED PILL TRIAL#
The issues remaining for decision by the Court at the time of trial were: (1) whether the products seized were "imitations" under the purview of § 352(i) (2), thus subject to seizure under 21 U.S.C. The case went to trial on February 25, 1986. The Court also adopted the recommendations of the magistrate. § 352(i) (2) if they intentionally induced another to commit any such violation, or if they knew or reasonably could have anticipated that a substantial portion of their products would be passed off as controlled substances in the chain of distribution. The Court further held that manufacturers and distributors may be held contributorily liable for alleged violations of 21 U.S.C. Schatz rejected that argument, holding the doctrine of extended or contributory liability applicable in an action alleging violations of the Food, Drug and Cosmetic Act, 21 U.S.C. Midwest objected to the findings and recommendations of the magistrate, asserting that a distributor may not be enjoined for the alleged improper actions of persons over whom the distributor has no control. The magistrate found § 352(i) (2) was not unconstitutionally vague and the word "imitation," which is the practice of passing off one substance as a different substance, is not equated with "counterfeit," which refers to simulating another's identifying mark on a product (Filing No. Magistrate Peck recommended the government's motion to dismiss should be sustained, claimant's counterclaims dismissed and Midwest's motions for summary judgment should be denied.
Magistrate Peck for findings and recommendations pursuant to 28 U.S.C. § 352(i) (2) must be equated with "counterfeit," and that the drugs seized were not "counterfeit" because of differences in markings. § 352(i) (2) is unconstitutionally vague, that the term "imitation" in 21 U.S.C. Midwest moved for summary judgment in its favor on both actions asserting that 21 U.S.C. The government thereafter moved for dismissal of claimant's counterclaims in the in rem action asserting that seizure actions taken by the government were discretionary functions exempted under the Federal Tort Claims Act, 28 U.S.C. The two actions were consolidated on August 21, 1984, for pretrial discovery and trial. The government's motion for a temporary restraining order in that case was denied (Filing No. Defendants Midwest and Sommers answered, denying the government's allegations. *318 The government additionally filed a separate action for injunctive relief against Midwest and its president alleging continued marketing of drugs by Midwest in violation of § 352(i) (2) and seeking an order from the Court enjoining future marketing. The counterclaim alleged harassment, abuse of process and negligence on the part of the government. Midwest filed a claim for the seized drug products, an answer and counterclaim. § 352(i) (2) by virtue of physical appearance, physiological effects, and the manner in which they were advertised, marketed and distributed and sold. The complaint (as amended) alleged that the drug products described in the caption were misbranded in that they were "imitations" of another drug in violation of 21 U.S.C. On April 5, 1984, the government filed a complaint for forfeiture of certain articles of drugs.
§ 332(a), from selling the same or similar products in the future. The government also seeks to enjoin Midwest and its president, Steven Sommers, under 21 U.S.C. § 352(i) (2) which prohibits the sale of "imitation" drugs, and are thus subject to in rem seizure under the provisions of 21 U.S.C. Plaintiff (hereinafter "the government") contends that the drug products are misbranded within the meaning of 21 U.S.C.
On April 5, 1984, law enforcement officials from the United States Food and Drug Administration seized approximately fifteen tons of drug products from Midwest Pharmaceuticals, Inc. § 334(a) and for injunction pursuant to 21 U.S.C. This matter is before the Court for decision after trial to the Court of consolidated actions for condemnation of seized products pursuant to 21 U.S.C. O'Connor, DeForest & Duer, New York City, for defendants. Atty., Omaha, Neb., William Spiller, Food & Drug Admin., Washington, D.C., for plaintiff. MIDWEST PHARMACEUTICALS, INC., et al., Defendants.
0 kommentar(er)
