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FOR THE ELEVENTH CIRCUIT
CASE NO. 98-5478
Plaintiff-Appellant,
v.
AMERICAN BRANDS, INC., et al
Defendant-Appellee(s)
________________________________________________________________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF FLORIDA
MIAMI DIVISION
BRIEF OF THE APPELLANT
Submitted by:
William Macdowell – Pro Se
Stuart, Florida 34997
WILLIAM MACDOWELL,
AMMENDED BRIEF
AMERICAN BRANDS, INC.,
PHILIP MORRIS COMPANIES INC.,
JOSEPH E. SEAGRAM AND SONS INC.,
Defendants - Appellees
AMERICAN BRANDS INC.
P.O. BOX 811, OLD GREENWICH, CONNECTICUT 06870-0811 UNITED STATES
(203) 698-5000.
PHILIP MORRIS COMPANIES INC..
120 PARK AVE., NEW YORK, NEW YORK 10017 UNITED STATES (212)
880-5000.
JOSEPH E. SEAGRAM AND SONS INC..
375 PARK AVE., NEW YORK, NEW YORK 10152 UNITED STATES (212)
572-7000.
AMENDED COMPLAINT:
Plaintiff, out of respect for the Court’s concern regarding cost of bringing an action and appreciation for the Court granting Plaintiff to procede in forma pauperis on appeal (signed by Judge Donald M. Middlebrooks on 9/29/98) CCAP (cp) [Entry date 10/02/98], Plaintiff has eliminated all but three defendants from the Complaint on appeal.
NATURE OF DEFENDANTS WRONGFUL CONDUCT AND CONSPIRACY
a- This action arises out of an ongoing course of wrongful conduct by each defendant individually and in conspiracy with each other.
b- The Defendants manufacture an addictive drug/poison product(s) that has plagued our country (and the world), not for the benefit of the American people, but for taxes, profits and personal gain. Plaintiff alleges the Defendant’s product(s), the drug/poison, ethyl alcohol has been and still is the major cause of a form of mass genocide in America and the rest of the world.
c- Plaintiff’s Complaint truthfully, honestly, factually and comprehensively describes, based on the highest authority, the Rule of Law, the highest law of the land. That is the Constitution of the United States of America.
d- Plaintiff recognizes that the Complaint has not addressed “legal theory”. There does not seem to be case law in favor of a plaintiff who was successful litigating against the alcohol beverage industry. Plaintiff requests the Court to consider Plaintiff’s Constitutional rights and the relationship between the addictive drug/poison, ethyl alcohol and the loss of Plaintiff’s spiritual being including the fact that Plaintiff is not the “ordinary consumer”, and because of Defendant’s product(s), caused him to become addicted to Defendant’s product(s) and caused him to aquire the disease of alcoholism. “ALCOHOLISM is a primary, chronic disease with genetic, psychosocial, and environmental factors influencing its development and manifestations. The disease is often progressive and fatal. It is characterized by continuous or periodic: impaired control over drinking, preoccupation with the drug alcohol despite adverse consequences, and distortions in thinking, most notably denial.” (NCADD-Definition of Alcoholism)
The United States Constitution, 1st Amendment, “Freedom of Religion”, and the 14th Amendment, “…deprive any person of life, liberty, or property…”, supports and protects the Plaintiff’s spiritual being claim. The Defendants, by law, cannot deprive the Plaintiff of his rights under Constitutional law with the sale of their addictive drug/poison product(s), which caused the Plaintiff to lose his spiritual being.
e- The Court is relying on the theory of, “common knowledge”, “ordinary consumer”, “advertising”, and “labeling” to structure their case against Plaintiff’s Complaint. Plaintiff discounts each of these theories as being irrelevant to himself, being an alcoholic, but finds relevant, ”...and is especially dangerous to alcoholics...”, documented in a number of cases against the alcohol beverage industry. Cases pertaining to the alcohol beverage industry using this language are not refering to the alcoholic since the Plaintiff is not considered “THE ORDINARY CONSUMER”. Plaintiff alleges there is not an alcoholic beverage industry case that references the United States Constitution’s First Amendment or the Fourteenth Amendment and the alcoholic losing his/her “spiritual being.” Plaintiff considers this Complaint to be a legal precedent.
f- “The alcohol industry political action committees have already given members of Congress $1 million in the past year. It is hardly a surprise that alcohol will receive mere public service-announcement status in the illegal drug campaign, although alcohol is more dangerous and costly to society: Every day, on average 11,318 American young people (12 to 20 years of age) try alcohol for the first time.” “Alcohol is a factor in three leading causes of death for those 15 to 24 years old. Two to three times as many teenagers and young adults die in alcohol-related traffic crashes as from drugs.” “Alcohol kills about 100,000 people annually at a cost to taxpayers of about $99 billion a year.” (Hillary Abramson, Marin Institute for the Prevention of Alcohol and Other Drug Problems in California).
The Complaint is arranged in a logical format, the text unfolds an examination of how“ordinary knowledge common to the community” and “the ordinary consumer” does not apply to the alcoholic. The Complaint indicates that the Defendants should be liable for the costs attributed to alcohol because it makes an “addictive product, a drug/poison, which stripped the Plaintiff of his spiritual being.
(a) Plaintiff argues that the Defendants manufacture a product(s) that has violated Plaintiff’s Constitutional and Civil Rights. Alcoholics are considered people with a disease, disability and a handicap that have Constitutional inalienable rights.
(b) Plaintiff’s Complaint addresses, only “A STRICT PRODUCT LIABILITY COMPLAINT” with the emphasis on the addictive drug/poison, ethyl alcohol and his loss of “spiritual being”. Plaintiff also includes other damages in the Complaint. Loss of spiritual being is the number one most important loss which is protected by the United States Constitution. Addiction is very much a spiritual disease that the alcoholic suffers from. The Plaintiff refers to himself, individually, because he is an alcoholic. Plaintiff, because he is an alcoholic, is not considered to be the “ordinary consumer”. Plaintiff represents himself as being a victim and example of the typical alcoholic who has indulged or is still actively drinking the addictive drug/poison, etyhyl alcohol. The cause of the Plaintiff’s alcoholism is the addictive drug/poison, ethyl alcohol. Ethyl alcohol is deleterious to the Plaintiff’s, spiritual being, health and well being before, now and in the future. Plaintiff will always be an alcoholic till the day he dies, possibly, prematurely due to the drug/poison, ethyl alcohol. Alcoholism is an insidious disease, so much so, that the Plaintiff has to be on guard at all times when shopping for products that may contain alcohol. Plaintiff cannot ingest any product, ie: mouthwash, cough medicine, etc., that contains alcohol. Plaintiff, again, is not “the ordinary consumer.” As cited in all cases against the alcohol beverage industry.
(1) Plaintiff’s religious liberty, spiritual being, freedom of conscience is a precious,fundamental and inalienable right. A society is only as just and free as its smallest minorities and least popular communities. Religous/spiritual liberty is founded on the inviolable dignity of the person. It is not based on science or social usefulness and is not dependent on the shifting moods of majorities and governments (Williamsburg Charter).
Every individual is a spiritual being! The Bible says, “Know ye not that ye are the temple of God, and that the Spirit of God dwelleth in you?” (I Corinthians 3:16).
The following is an excellent explanation of the Plaintiff’s loss of spiritual being.
SPIRITUAL EMPTINESS
As the addictive personality gains more control and addicts lose more of their ability to influence their own thoughts and behavior, there is a spiritual deadening. My definition of spiritual means being connected in a meaningful way to the world around us. The feeling of belonging and being an important part of the world is lost as addiction progresses. The sense of knowing oneself and one’s importance drifts further and further away.
Addiction is very much a spiritual disease. Everybody has the ability to connect with the soul and spirit of others. Because addiction is a direct assault against Self, it’s a direct attack on the spirit or soul of the person suffering from an addiction. A person’s spirit produces life; the goal of addiction is spiritual death.
The longer the addiction goes on, the more spiritually isolated the person becomes. This is the saddest and most frightening aspect of addiction. Sunsets, smiles, laughter, support from others and other things that nourish our spirits come to mean less as acting out
becomes more important. Because addiction blocks a person’s ability to effectively connect with his or her own spirit, there is little chance to connect with the spirit of others. Relationships with others become more superficial as the illness progresses. Addicts stay isolated or turn to the presence of other addicts who offer companionship and little or no fear of confrontation.
As addiction progresses, spiritual deadening deepens. This may be the most dangerous aspect of addiction. For recovery, there must be a recommitment to the nurturing of one’s spirit. The further one moves away from the Self, the harder it is to reestablish a healing relationship. in the beginning of the addictive process, the person grasped the addiction in an attempt to nurture life, spirit, and the Self in the process of chasing perfection. Many recovering addicts firmly grasp the spiritual aspect of recovery because most are extremely grateful to have such a precious gift returned: the Self, a spiritual awareness, and the ability to connect with others in a meaningful, nurturing way. (The Addictive Personality by Craig Nakken)
1. NATURE OF THE ACTION
Although, the “ordinary consumer”, (the Plaintiff (alcoholic) not being the “ordinary consumer”) knows very little, if nothing at all, of the dangers of the drug/poison ethyl alcohol, as addressed in the Complaint at issue. Being an alcoholic is not synonymous with being “The ordinary consumer”. The definition that the National Council on Alcoholism and Drug Dependence, Inc.(NCADD) describes the difference between the Plaintiff and “the ordinary consumer.” Plaintiff explores the prima facie elements and refers to NCADD’s definition of disease. Also see “Adverse consequences”, Definition of Alcoholism (NCADD). “Spiritual” is mentioned.
“Disease” means an involuntary disability. It represents the sum of the abnormal phenomena displayed by a group of individuals. These phenomena are associated with a specified common set of characteristics by which these individuals differ from the norm, and which places them at a disadvantage.
HON v. STROH BREWERY CO.; GARRISON v. HEUBLEIN, INC.(the Heublein case also refers to “...and is especially dangerous to alcoholics...”). The Court is relying on the theory of, “common knowledge”, “ordinary consumer”, “advertising”, and “labeling” to structure their case against Plaintiff’s Complaint. Plaintiff discounts each of these theories as being irrelevant to himself, being an alcoholic, but finds relevant, ”...and is especially dangerous to alcoholics…” Other cases pertaining to the alcohol beverage industry using this language are not refering to the alcoholic since the Plaintiff is not considered “THE ORDINARY CONSUMER”. Plaintiff alleges there is not an alcoholic beverage industry case that references the United States Constitution’s First Amendment, Freedom Of Religion and the alcoholic losing his/her “spiritual being.” Plaintiff considers this Complaint to be a legal precedent.
The Distilled Spirits Council of the United States (DISCUS) discloses THAT ALCOHOL IS PHARMACOLOGICALLY CLASSIFIED AS A DRUG.
The definition of pharmacologically: “The science dealing with the effect of drugs on living organisms”, Webster’s New World Dictionary.
The Plaintiff has been an alcoholic since 1947, age seventeen and has a chronic disease, an addiction called alcoholism. Alcoholism and the loss of Plaintiff’s spiritual being are the symptoms of the addictive drug/poison, ethyl alcohol. Plaintiff’s active alcoholism includes, but not limited to, approximately 15 hospitalizations due to alcoholism (1st alcohol related hospitalization was age 17); 10, plus times, incarcerated for alcohol related offenses; while in the Navy, at least 17 Captain’s Masts and 2 court martials with incarcerations for alcohol related offenses; 2 DWI offenses, numerous automobile accidents due to alcohol; lost job opportunities; lost a family and migrated to the New York Bowery living in a $2.00/day “chicken coop”, etc. All because Plaintiff ingested the addictive drug/poison, ethyl alcohol.
The Court has adopted the legal theory of Dauphin Deposit Bank and Trust Company v. Toyota Motor Corp.., 596 A.2d 845, 849 (Pa. Super. 1991). “...on the grounds that alcoholic beverages are not unreasonably dangerous...”. (Judge Ryskamp writes in his OMNIBUS ORDER, “...AND IS ESPECIALLY DANGEROUS TO ALCOHOLICS...” The Court also references Garrison v. Heublin, Inc., 673 F.2d 189, 192 (7th Cir. 1982) (applying Illinois law) “The dangers of the use of alcohol are common knowledge to such an extent that the product cannot objectively be considered to be unreasonably dangerous.” Plaintiff, once again, refers to Judge Ryskamp’s statement, “...AND IS ESPECIALLY DANGEROUS TO ALCOHOLICS...”.
The reason ethyl alcohol, the drug/poison is dangerous to the Plaintiff (an alcoholic) is because he suffers from a chronic disease that is spiritual, mental, emotional, physical and has the threat of immanent death.
Plaintiff started drinking in 1947. Plaintiff became alcoholic at the age of seventeen. There are children who are twelve years old and younger who are alcoholics already involved in criminal activity and many are patients in alcohol treatment facilities. Young people are dying of alcohol poisoning at colleges around the country because of “binge drinking.” Does Pennsylvania and Illinois law, that the Court addresses, pertain to the children as well as the young people of America as being “the ordinary consumer and have the common knowledge of the community?” At seventeen, the Plaintiff knew nothing of the contents of this Complaint and the many residual damages that inevitably became a reality from drinking the drug/poison, ethyl alcohol.
Plaintiff’s factual allegations are based on fifty two years of being an alcoholic, active and abstaining from drinking alcohol, having gained invaluable information and experience attending an accredited school to become an alcohol/addiction counselor, facilitating DWI offenders in New York and DUI offenders in Florida (as a vounteer), a member of Alcoholics Anonymous since 1959, experiencing the depths of alcoholism for thirty two years (Plaintiff has been sober for nineteen years at present)and with an honest burning desire to abstain from the addictive drug/poison,ethyl alcohol. A desire and abstinence was first and foremost in the process of recovery for the Plaintiff to regain his spiritual being.
The Plaintiff had his spiritual being restored by attending the foremost and acknowledged spiritual program for sobriety, AA (Alcoholics Anonymous). Plaintiff became a member of AA in 1959. It wasn’t until 1979 that the Plaintiff immersed his total being into the program of AA. The twelve steps of AA are based on humility and spirituality. The simplest definition of humility is the one given by St. Theresa: “Humility is truth.” The first step of the twelve steps was the beginning for the Plaintiff toward experiencing humility.
The first step of AA: WE ADMITTED WE WERE POWERLESS OVER ALCOHOL THAT OUR LIVES HAD BECOME UNMANAGEABLE. This step of admission is the only step that doesn’t reflect spirituality. The eleven other steps do. Therefore, by living the twelve steps, to the best of Plaintiff’s ability on a daily basis, and abstaining from the addictive drug/poison, ethyl alcohol, the Plaintiff’s spiritual being has become a reality once again.
WHEREFORE, Plaintiff, WILLIAM MACDOWELL, respectfully requests the Court to reevaluate Plaintiff’s Complaint and reverse
That the plaintiff, WILLIAM MACDOWELL, resides at Stuart, Florida.
That the above named defendants produce, bottle and sell alcoholic beverages for consumption by the public and have for many years past. That said defendants advertise their alcoholic products in order to create a demand therefor
That each of the above defendants knows, or should have known, that alcohol is a deleterious drug and poison, but depite such knowledge promoted its sale by deceptive marketing practices and by subliminal as well as overt advertising, knowing that alcohol is dangerous to a substantial of the population.
That the juristiction of this court is invoked on the basis of diversity of the residences of the plaintiffs and defendants and that the amount in controversy exceeds one hundred thousand ($100,000.00) dollars.
AS AND FOR A FIRST CAUSE OF ACTION
BY THE PLAINTIFF, WILLIAM MACDOWELL,
That the plaintiff, WILLIAM MACDOWELL, is now and has been an alcoholic for at least the last fifty (50) years.
That the defendants directly and indirectly through retail stores, bars, saloons, restaurants and other places caused to be sold alcoholic beverages to the plaintiff, WILLIAM MACDOWELL,
That at the time these beverages were sold to the plaintiff, the defendants knew, or should have known, that said drug and poison, alcohol, could or would cause physical, emotional, spiritual, mental impairment and death to said plaintiff, WILLIAM MACDOWELL,
That notwithstanding such knowledge the defendants sold, and continued to sell, alcoholic beverages directly and indirectly through retail stores, bars, saloons, restaurants and other places, all to plaintiff WILLIAM MACDOWELL. Defendants issued no warnings as to the the said deleterious effects of said drugs and promoted its sale by subliminal as well as overt advertising. That the defendants know and have known for many years past that the drug, alcohol, is a mind altering drug and poison, spiritually, mentally, emotionally and physically damaging, as well as addictive, to plaintiff, WILLIAM MACDOWELL,
That as an alcoholic, plaintiff, WILLIAM MACDOWELL, is addicted to the drug, alcohol, which causes, and has caused the plaintiff, to sustain the following damages:
(i) Loss of spiritual being
(ii) Loss of wife and family
(iii) Loss of home
(iv) Mental impairment
(v) Physical impairment
(vi) Shortened life expectancey
(vii) Emotional impairment
(viii) Sexual impairment
(ix) Dehumanization of the individual
(x) Loss of numerous businesses and business opportunities
(xi) Loss of numerous jobs
(xii) Hospitalizations due to alcohol
(xiii) Incarcerations due to alcohol
(xiv) Domestic violence
(xv) Numerous other items of damage
RELIEF REQUESTED
WHEREFORE, plaintiff, WILLIAM MACDOWELL, respectfully requests that this Honorable Court issue an order and judgment against the Defendants, jointly and severally, as follows:
A. Ordering Defendants to disclose, disseminate, and publish all research previously conducted directly or indirectly by themselves and their respective agents, affiliates, servants, officers, directors, employees, and all other persons acting in concert with them, that relates to the public health issues of drinking alcohol beverages and alcohol addiction;
B. Ordering Defendants to fund a corrective public education campaign relating to public health issues of drinking and alcohol addiction, administered and controlled by Victory Over Addiction International, Inc.;
C. Ordering Defendants to make corrective statements regarding the health risks of drinking and the addictive properties of alcohol in their products and enjoining them from continuing to make false, misleading or deceptive statements or representations concerning their alcohol products;
D. Ordering Defendants to fund alcohol cessation programs including the provision of medically approved alcohol replacement therapy for dependent drinkers of alcohol beverages;
E. Ordering the Defendants to pay restitution to the plaintiff, WILLIAM MACDOWELL, in the amount to be proven at trial, presently estimated to be in excess of one hundred million ($100,000,000) U.S.A. dollars for every allegation contained in paragraphs 1 through 36, together with interest and costs. This money will be donated to Victory Over Addiction International, Inc. in order to serve the children, families and society intoto.
a) Victory Over addiction International, Inc. (VOAI) is a non-profit organization incorporated in the State of Florida. VOAI is supported by membership due, publications, conference fees, advertising and contributions.
b) VOAI is dedicated to the people who suffer from the disease of addiction, be it alcohol abuse, chemical dependency, eating disorders, compulsive gambling, smoking, sexual/love addiction or any other addictive behavior. Other major areas of concern that VOAI addresses are , grief, suicide, child abuse, hiv/aids, stress, divorce, bankruptcy and domestic violence.
c) VOAI’s primary mission is to promote public awareness and educate the public of the dibilitating effects of addiction relating to the physical, mental, emotional and spiritual deterioration of the human being and the destruction of the family unit.
d) The purpose for which the corporation is organized are exclusively religious, charitable, scientific, literary, and educational within the meaning of Section 501 (c) (3) of the Internal Revenue Code of 1986 or the corresponding provision of any future United States Internal Revenue law.
F. Awarding, plaintiff, WILLIAM MACDOWELL, reasonable attorneys fees and costs;
G. Awarding, plaintiff, WILLIAM MACDOWELL, punitive money damages, to be determined at trial against the Defendants in order to sufficiently punish the Defendants for their wrongful conduct and to deter such conduct in the future;
a) Refer to item E, a). Plaintiff will donate this money to Victory Over Addiction International, Inc.
H. Declaring that the Defendants use now, and did use in the past, marketing and advertising campaigns that unlawfully target and/or encourage children to purchase and consume alcohol products in violation to many State’s laws;
I. Enjoining the Defendants from using marketing or advertising campaigns that target and/or encourage children to purchase and consume alcohol products in violation to many State’s law;
J. Awarding, plaintiff, WILLIAM MACDOWELL, such other extraordinary, declaratory and /or injunctive relief as permitted by law as necessary to assure has an effective remedy;
K. Ordering each defendant to disgorge all profits and gains acheived in whole or in part through the unfair and/or deceptive acts or practices complained of herein; and
L. For such other and further relief, as the Court deems equitable, just and proper, that plaintiff, WILLIAM MACDOWELL is entitled to Receive.
Respectfully submitted, Pro se
______________________
William Macdowell