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December 2, 1963

An Article of Device, Consisting of ONE DEVICE, MORE OF LESS, Labeled in part:'* * * THE ELLIS MICRODYNAMETER' etc

The opinion of the court was delivered by: LUONGO

This is a suit under the Federal Food, Drug, and Cosmetic Act, 21 U.S.C.A. § 301 et seq. (hereinafter referred to as Act. Section number references will be to U.S.C.A. section numbers.) The United States filed a libel in rem § (334) seeking to condemn as misbranded § (352(a) and § 352(f) a certain article of device known as an Ellis Micro-Dynameter. George Morris, a chiropractor, from whom the device was seized has filed a claim thereto seeking its return.

Before me is the motion of the United States for summary judgment under Fed.R.Civ.P. 56, as amended, contending that the pleadings, affidavits and answers to interrogatories show that there is no genuine issue as to any material fact and it is entitled to judgment of condemnation as a matter of law. It asserts further that claimant is bound, under principles, of res judicata, by certain determinations made in other proceedings involving the Ellis Micro-Dynameter. *fn1" Claimant Morris opposes the motion on the ground that there are genuine issues of material fact in this record precluding the entry of summary judgment and that he is not bound by the determination of any issues in other proceedings to which he was not a party.

 It will not be necessary to consider whether findings made in in personam injunction proceedings, to which claimant was not a party *fn2" and which took place several years after he had acquired title to the device, are binding on him in this in rem proceeding, since, wholly apart from findings made in that prior litigation, uncontroverted matters in the instant record warrant and require entry of summary judgment of condemnation.

 From the pleadings, affidavits and answers to interrogatories, the following facts appear:

 The government asserts, and has submitted affidavits of medical experts and an electronics engineer in support, that the device is of no value whatever in diagnosing any disease, that all claims made for it in the accompanying literature are false. Claimant contends, by his own and the affidavits of several chiropractors and an electrical engineer, that the device is a valuable aid in locating and detecting the focus of spinal subluxation *fn3" and has a valuable use for diagnostic purposes. Claimant has admitted (in his briefs, at oral argument and by failure to controvert specifically as required by the amended Rule 56) that, other than localization of spinal subluxations, the device has no value for the uses claimed for it by the manufacturer. Claimant asserts that he has not been misled in any way by any of the manufacturer's 'fantastic' (claimant's characterization) claims.

 Claimant's position is that the foregoing presents genuine issues of fact, i.e. whether the device is worthless as a diagnostic aid as the government contends or whether it has some use as claimant contends, and whether claimant has been misled by any of the false claims, therefore summary judgment may not be entered.

 Not every issue of fact, however genuine, precludes entry of summary judgment, it is only genuine issues of material fact which have that effect. Whether the issues here asserted by claimant are material depends upon whether, on the one hand, the Act requires condemnation of a device if claims made for it are in part false, or whether, on the other hand, a device is saved from condemnation if claims made for it are in part truthful (or, as claimant seems to suggest, if it is capable of any use at all. *fn4" ). If it is the former, then the issues raised by claimant are immaterial, for if all the fact issues raised by claimant were to be resolved in his favor, the record would reveal the following:

 The Ellis Micro-Dynameter was placed in interstate commerce accompanied by literature which explained its use and which falsely claimed for the device the capability to diagnose numerous diseases which it was not capable of diagnosing. Claimant was not misled by any of those false claims and he did not rely on them. The device was of some use as a diagnostic aid in localizing spinal subluxations and that was the only use which claimant made of it.

 On this state of facts the government is entitled to have its motion for summary judgment granted.

 Section 352 of the Act provides, in part:

 ' § 352. Misbranded drugs and devices

 'A drug or device shall be deemed to be ...

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