James Forsythe v. John Zelinsky

MEMORANDUM

Dr. James Forsythe and his wife, Earlene Forsythe, appeal the district court’s dismissal with prejudice of their civil claims against the United States and Food and Drug Administration (“FDA”) Agent John Zelinsky arising from the investigation and unsuccessful criminal prosecution of Dr. Forsythe for introducing an unapproved new drug into interstate commerce in violation of 21 U.S.C. §§ 331 (d) and 333(a)(2) and for knowingly distributing human growth hormone in violation of 21 U.S.C. § 333 (e). The first count was dismissed by the United States District Judge in the criminal case after evidence was produced that Bio-Tropin prescribed by Dr. Forsythe was not an unapproved new drug. The trial of the second count resulted in a verdict for Dr. Forsythe.

After Dr. Forsythe defeated the criminal charges, he sought a civil remedy. Dr. Forsythe and his wife first brought an action in the Northern District of California asserting a large number of claims. That action was dismissed, with claims rejected mostly for procedural reasons, such as the applicable statute of limitations and a failure to exhaust administrative remedies. Dr. Forsythe and his wife, Earlene, later sued…