1993.C07.154 <http://www.versuslaw.com> United States Court of Appeals for the Seventh Circuit, No. 92-2724; January 28, 1993

[2] No. 92-2724

[3] 1993.C07.154 <http://www.versuslaw.com>

[4] January 28, 1993

[5] UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,

v.

CONRAD E. LEBEAU, AN INDIVIDUAL, DEFENDANT-APPELLANT.

[6] Appeal from the United States District Court for the Eastern District of Wisconsin. No. 91 C 363. Robert W. Warren, Judge.

[7] Before Hon. Walter J. Cummings, Circuit Judge, Hon. Richard D. Cudahy, Circuit Judge, Hon. Donald P. Lay, Senior Circuit Judge*

[8] ORDER

[9] In April of 1991 the government sought to enjoin the defendants from violating the federal Food, Drug, and Cosmetic Act, 21 U.S.C. 301 et seq. The defendants were Conrad LeBeau, the owner and president of co-defendant Vital Health Products, a Muskego, Wisconsin, corporation, which has not appealed from the adverse judgment of the district court.

[10] The complaint alleged that defendants were violating the Act by manufacturing and introducing into interstate commerce six unapproved new drugs which were also misbranded, in violation of 21 U.S.C. 331(a) and (d). The drugs in question were 35% Hydrogen Peroxide Solution, 17.5% Hydrogen Peroxide and Glycerine, Peroxy Gel, White Birch Mineral Water, Licorice Root Tea, and Lymph System. The literature accompanying these products and some of their labels showed that they were intended to be used as treatments for cancer, AIDS, emphysema, diabetes, multiple sclerosis, Parkinsonism, Alzheimer's Disease, and arthritis. The complaint alleged that between 1987 and April 1991 defendants were issued two warning letters by the Food and Drug Administration that these products violated the Act. Because the warnings were ignored, the government sought an injunction barring the defendants from violating the Act by, inter alia, distributing Vital Health's products. The government's request for injunctive relief was supported by an affidavit of Dr. Gloria Troendle, a well-qualified expert, to the effect that the six products in question were not safe and effective for their intended uses.

[11] In March 1992, Judge Warren issued a 40-page opinion and order granting a permanent injunction and dismissing LeBeau's counterclaim. This caused LeBeau, but not Vital Health Products, to appeal from the judgment below after his motion to amend the judgment and his motion for reconsideration were denied. For the reasons given in the attached decision and order of the district court, we affirm the grant of injunctive relief and summary judgment in the government's favor. This order merely supplements Judge Warren's opinion.

[12] LeBeau's Fifth and Fourteenth Amendment arguments against the constitutionality of the Act were properly rejected on the basis of well-settled authorities. See, e.g., United States v. Sullivan, 332 U.S. 689, and United States v. Walsh, 331 U.S. 432. While LeBeau also attacks the Act on the ground that it violates the Ninth Amendment, that amendment standing alone has never been considered by the Supreme Court to support an attack on a federal statute. Thornburgh v. American College of Obstetricians & Gynecologists, 476 U.S. 747; Roe v. Wade, 410 U.S. 113; Eisenstadt v. Baird, 405 U.S. 438; see also Griswold v. Connecticut, 381 U.S. 479, 486-499 (Goldberg, J., concurring). In addition, three courts of appeals have rejected litigants' Ninth Amendment privacy right claims in favor of governmental regulation of medication. United States v. Byrzynski Cancer Research Institute, 819 F.2d 1301 (5th Cir. 1987), certiorari denied, 484 U.S. 1065; Carnahan v. United States, 616 F.2d 1120 (9th Cir. 1980); Rutherford v. United States, 616 F.2d 455 (10th Cir. 1980), certiorari denied, 449 U.S. 937. Andrews v. Ballard, 498 F. Supp. 1038 (S.D. Tex. 1980), relied on by LeBeau to support a claimed privacy right to freedom of choice in medicine, has been implicitly rejected by the Fifth Circuit's Byrzynski opinion.

[13] LeBeau also asserts that the district court should have considered a March 14, 1992, affidavit of Dr. William Douglass to show that Hydrogen Peroxide therapy is useful to treat cancer, tumor cells, bacterial, fungal and viral infections, HIV infection [from AIDS], arthritis, candidiasis, chronic fatigue syndrome, emphysema" and other conditions (defendants' app. 48), and therefore shows that Dr. Troendle's contrary affidavit was perjured. However, on September 16, 1991, Judge Warren gave defendants 45 days to respond to the government's summary judgment motion, which was supported by Dr. Troendle's affidavit, and on December 12, 1991, extended that time to January 6, 1992, adding that "Any documents filed after this date shall not be considered by this court * * * there shall be no further extension" (R. 60, 70). Consequently, the district judge was justified in refusing to consider the belated submission of Dr. Douglass's affidavit. Olive Can Co., Inc. v. Martin, 906 F.2d 1147, 1152-1153 (7th Cir. 1990).

[14] The medical profession may yet change its view of purveyors like Mr. LeBeau, who urge the benefits of herbal or homeopathic cures. Recently the National Institute of Health established an Office of Alternative Medicine, which will "seek[] proposals from researchers who want to explore the merits of therapies outside mainstream healing." Natalie Angier, U.S. Opens the Door Just A Crack to Alternative Forms of Medicine, N.Y. Times, Jan. 10, 1993, at p. 1. One also wonders whether the government would pursue an herbal remedies boutique or a New Age lecturer urging the curative power of crystals as vigorously as it did LeBeau. Their customers are no more or less in need of protection from medical chicanery than rural Wisconsinites. Such observations do not aid LeBeau's present case, however, and summary judgment in favor of the United States is AFFIRMED.

[15] EXHIBIT

[16] UNITED STATES OF AMERICA, Plaintiff, v. VITAL HEALTH PRODUCTS, LTD., a corporation, and CONRAD E. LeBEAU, an individual, Defendants.

[17] UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN

[18] March 10, 1992, Decided

[19] March 10, 1992, Filed

Opinion Footnotes

[20] * The Honorable Donald P. Lay, Senior Circuit Judge of the United States Court of Appeals of the Eighth Circuit, is sitting by designation.

Copyright (c) 1997 VersusLaw Inc. Reproduced with permission of Joe Acton, CEO, VersusLaw Inc.

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