Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

DECK BY DECK v. MCBRIEN

March 8, 1991

BRANDI NICOLE DECK, A MINOR, BY RITA DECK HER MOTHER AND NEXT FRIEND, AND RITA DECK, INDIVIDUALLY, PLAINTIFFS,
v.
TERRY MCBRIEN AND SULLIVAN DRUGS, INC., DEFENDANTS.



The opinion of the court was delivered by: Richard Mills, District Judge:

OPINION

On July 10, 1986, Rita Deck purchased the prescription drug Asendin from Sullivan Drugs, Inc. and Terry McBrien, a pharmacist employed by Sullivan. The drug was not dispensed in a child-proof container as required by federal law.

One month later, on August 15, Rita's 2 1/2 year old daughter, Brandi, ingested the drug and, as a result, sustained severe and permanent injuries.

The Decks have brought this action under the Consumer Product Safety Act, 15 U.S.C. § 2072, seeking $6,000,000 in damages against the Defendants. Defendants have moved to dismiss on the basis that § 2072 does not provide for a private cause of action in this case and thus jurisdiction is improper. The motion to dismiss raises a novel question under the Consumer Product Safety Act which was not addressed by two courts which allowed recovery in similar cases. See Baas v. Hoye, 766 F.2d 1190 (8th Cir. 1985); Wahba v. H & N Prescription Center, Inc., 539 F. Supp. 352 (E.D.N.Y. 1982).

In short, we hold that the Consumer Product Safety Commission must by rule designate prescription drugs for regulation before the act can apply.

It hasn't.

We dismiss.

In resolving this issue we must examine the Consumer Product Safety Act, 15 U.S.C. § 2051 et seq., the Federal Food, Drug, and Cosmetic Act, 21 U.S.C. § 301 et seq., and the Poison Prevention Packaging Act, 15 U.S.C. § 1471 et seq., as well as regulations issued pursuant to these acts by the Consumer Product Safety Commission (Commission).

We begin with the statute at issue. Section 2072(a) of the Consumer Product Safety Act provides:

  Any person who shall sustain injury by reason of
  any knowing (including willful) violation of a
  consumer product safety rule, or any other rule or
  order issued by the Commission may sue any person
  who knowingly (including willfully) violated any
  such rule or order in any district court of the
  United States in the district in which the
  defendant resides or is found or has an agent,
  shall recover damages sustained, and may, if the
  court determines it to be in the interest of
  justice, recover the costs of suit, including
  reasonable attorneys' fees. . . .

15 U.S.C. § 2072(a). By its terms § 2072 is limited to providing a private cause of action for violation of a consumer product safety rule or other rule or order of the Commission; the statute does not provide a private cause of action for violation of the act itself. Drake v. Honeywell, Inc., 797 F.2d 603, 606 (8th Cir. 1986).

The Consumer Product Safety Act was passed by Congress in 1972 for the purpose of, inter alia, protecting "the public against unreasonable risks of injury associated with consumer products." 15 U.S.C. § 2051(b)(1). The act expressly excludes "drugs, devices, or cosmetics" from the definition of consumer product found in § 2052. See id. § 2052(a)(1)(H). In addition, the term "consumer product safety rule" is defined as a "consumer product safety standard" or "a rule under this chapter declaring a consumer product a banned hazardous product." Id. § 2052(a)(2).

Therefore, by its own terms, the act does not regulate prescription drugs. Plaintiffs argue that their private cause of action under the act exists because § 2072(a) provides a cause of action for violation of a consumer product safety rule (which does not apply) and any other rule or order of the Commission. One such "rule or order" requires that prescription drugs be dispensed only in "special" (i.e. child-proof) packaging. 16 C.F.R. § 1700.14(a)(10).

Prior to the enactment of the Consumer Product Safety Act and the creation of the Commission in 1972 several specific regulatory statutes were in existence, including the Poison Prevention Packaging Act of 1970, 15 U.S.C. ยง 1471 et seq. The Senate Report accompanying the Consumer Product Safety Act explains that these pre-existing regulatory statutes were brought under the jurisdiction of the Commission rather than repealed in favor of the more general Consumer Product Safety Act, both because the existing legislation represented explicit findings by Congress as to specific consumer hazards and to avoid duplicative regulatory action under the new act when ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.