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Jones v. Sportelli

Decided: February 14, 1979.

TERESE JONES AND DAVID JONES, PLAINTIFFS,
v.
NICHOLAS SPORTELLI AND JULIUS SCHMID, INC., DEFENDANTS



Steedle, J.s.c.

Steedle

This is a personal injury action in which unresolved issues regarding the construction and interpretation of the Consumer Fraud Act, N.J.S.A. 56:8-1 et seq. are raised.

Terese Jones and her husband David, plaintiffs herein, seek damages for injuries sustained as a result of Mrs. Jones' use of a Saf-T-Coil intrauterine device manufactured by defendant Julius Schmid, Inc., correctly known as Schmid Laboratories, Inc., and inserted by defendant Dr. Nicholas Sportelli. Plaintiffs allege that the IUD caused the perforation of Mrs. Jones' uterus, that Mrs. Jones became pregnant while she suffered this injury, and consequently, necessarily underwent surgery for the removal of the IUD as well as an abortion. In the fourth count of their complaint plaintiffs claim, among other things, that defendant Schmid violated the provisions of the Consumer Fraud Act. More specifically, plaintiffs allege that said defendant engaged in practices violative of the act in that, with respect to its marketing of the Saf-T-Coil IUD, it

For this violation plaintiffs contend they are statutorily entitled to treble compensatory damages, including but not limited to treble recompense for medical expenses incurred, pain and suffering and loss of consortium.

Defendant moves for summary judgment disposition of the fourth count. For purposes of its motion, defendant assumes that the facts of this case are as pleaded by plaintiffs, but argues that as a matter of law the proscriptions of the act are inapplicable to the sale of an IUD, principally because such an item is a prescription-legend product not directly available to members of the general public and obtainable only by, on

or through the order of a licensed physician. Moreover, defendant claims that even if the act is applicable, the award of treble damages is statutorily limited to triple the actual cost of the IUD and cannot legally be extended to include three fold recovery of all compensatory damages sought.

Accordingly, the disposition of this motion requires that this court now decide two questions of first impression. This court must first determine whether the sale of an IUD is a transaction within the purview of the act, and if necessary, must then define the extent to which the act authorizes treble damages.

The act makes unlawful the following conduct:

The act, use or employment of any person of any unconscionable commercial practice, deception, fraud, false pretense, false promise, misrepresentation, or the knowing, concealment, suppression, or omission of any material fact with intent that others rely upon such concealment, suppression or omission, in connection with the sale or advertisement of any merchandise * * * is declared to be an unlawful practice. * * * [ N.J.S.A. 56:8-2]

The above provision must be read in conjunction with the definitional section of the act, which defines the following terms:

(a) The term "advertisement" shall include the attempt directly or indirectly by publication, dissemination, solicitation, indorsement or circulation or in any other way to induce directly or indirectly any person to enter or not enter into any obligation or acquire any title or interest in any merchandise or to increase the consumption thereof or to make any loan;

(c) The term "merchandise" shall include any objects, wares, goods, commodities, services or anything offered, directly or ...


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