United States of America v. 2035 Inc. et al

Filing 139

AMENDED PERMANENT INJUNCTION. Signed by Chief Judge Jeffrey L. Viken on 10/13/15. (SB)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION
UNITED STATES OF AMERICA,

CIV. 14-5075-JLV

Plaintiff,
vs.
2035 INC., a corporation, and
ROBERT L. LYTLE, an individual,
d/b/a 2035 PMA and QLASERS PMA,

AMENDED ORDER OF
PERMANENT INJUNCTION
(Grammatical and Non-Substantive
Revisions Only)

Defendants.
The Court held a hearing on Plaintiff’s Motion for Preliminary Injunction
on November 17, 2014, and entered a preliminary injunction on January 14,
2015 against 2035 Inc., a corporation, and Robert L. Lytle, an individual, who
also goes by the name Dr. Larry Lytle and does business as 2035 PMA and
QLasers PMA (collectively, “Defendants”). (Docket 48). On March 3 and 4,
2015, the court held a trial on the merits. Having considered all arguments
raised at the preliminary injunction hearing, trial, and in the entire record in this
case, the court finds that Defendants violated the Federal Food, Drug, and
Cosmetic Act (the “FDCA”), 21 U.S.C. § 301 et seq., and finds that Defendants,
unless restrained by order of this court, will continue to violate the FDCA. The
parties to this action stipulate that the court shall enter this order of permanent
injunction. Pursuant to 21 U.S.C. § 332(a), Fed. R. Civ. P. 65 and the inherent
equitable authority of the court, it is

ORDERED as follows:
1. This Court has jurisdiction over the subject matter of this action and
has personal jurisdiction over all parties to this action pursuant to 28 U.S.C.
§§ 1331 and 1345 and 21 U.S.C. § 332.
2. The Complaint states a cause of action against Defendants under the
FDCA, 21 U.S.C. § 301 et seq.
3. Defendants violated the FDCA, 21 U.S.C. § 331(a), by introducing or
delivering for introduction into interstate commerce and/or causing the
introduction or delivery for introduction into interstate commerce of articles of
device, as defined by 21 U.S.C. § 321(h), that were adulterated within the
meaning of 21 U.S.C. § 351(f)(1)(B).
4. Defendants violated the FDCA, 21 U.S.C. § 331(a), by introducing or
delivering for introduction into interstate commerce and/or causing the
introduction or delivery for introduction into interstate commerce of articles of
device, as defined by 21 U.S.C. § 321(h), that were misbranded within the
meaning of 21 U.S.C. § 352(o).
5. Defendants violated the FDCA, 21 U.S.C. § 331(a), by introducing or
delivering for introduction into interstate commerce and/or causing the
introduction or delivery for introduction into interstate commerce of articles of
device, as defined by 21 U.S.C. § 321(h), that were misbranded within the
meaning of 21 U.S.C.§ 352(a).

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6. Defendants violated the FDCA, 21 U.S.C. § 331(a), by introducing or
delivering for introduction into interstate commerce and/or causing the
introduction or delivery for introduction into interstate commerce of articles of
device, as defined by 21 U.S.C. § 321(h), that were misbranded within the
meaning of 21 U.S.C. § 352(j).
7. Defendants violated the FDCA, 21 U.S.C. § 331(k), by causing articles of
device to become adulterated within the meaning of 21 U.S.C. § 351(f)(1)(B) and
misbranded within the meaning of 21 U.S.C. §§ 352(o), (a), and (j), while such
devices were held for sale after shipment of one or more of their components in
interstate commerce.
8. Upon entry of this Order, Defendants and each and all of their
directors, officers, agents, representatives, employees, attorneys, successors,
and assigns, and any and all persons in active concert or participation with any
of them (including franchisees, affiliates, private membership associations, and
“doing business as” entities, and all persons or entities engaged in any part of the
manufacture, design, processing, packing, labeling, holding, storing, and/or
distribution of Defendants’ devices, hereinafter collectively referred to as
“Associated Persons”), who have received actual notice of the contents of this
Order by personal service or otherwise, are hereby restrained and enjoined from
directly or indirectly manufacturing, designing, processing, packing, labeling,
holding, and/or distributing any article of device at or from 2035 1st Avenue,
Rapid City, South Dakota, 3312 Jackson Boulevard, Rapid City, South Dakota,
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and/or 3939 Canyon Lake Drive, Suite A, Rapid City, South Dakota, or at or
from any other locations at which Defendants, now or in the future, directly or
indirectly manufacture, design, process, pack, label, hold, and/or distribute
devices unless and until:
A. Each of Defendants’ devices are either: (1) the subject of an
approved application for premarket approval under 21 U.S.C.
§ 360e(a); (2) the subject of an investigational device exemption
under 21 U.S.C. § 360j(g); or (3) the subject of a cleared
premarket notification under 21 U.S.C. § 360(k) for each of their
intended uses;
B. Defendants select and retain at their expense an independent
person or persons (the “Expert”) to conduct comprehensive
inspections of Defendants’ operations and certify in writing to
FDA: (1) that he or she has inspected Defendants’ facilities and
identified all devices manufactured and/or distributed by
Defendants; (2) that each of Defendants’ devices are either the
subject of an approved application for premarket approval under
21 U.S.C. § 360e(a), the subject of an investigational device
exemption under 21 U.S.C. § 360j(g), or the subject of a cleared
premarket notification under 21 U.S.C. § 360(k); (3) that
Defendants have corrected all violations set forth in FDA’s
Inspectional Observations (“Forms FDA-483”) from all prior FDA
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inspections since 2001 and the March 3, 2011 Warning Letter;
and (4) whether, based upon the Expert’s inspection, Defendants
are

operating

in

conformity

regulations, and this Order.

with

the

FDCA,

applicable

The Expert shall be qualified by

education, training and experience to conduct such inspections,
and shall be without personal or financial ties (other than a
consulting agreement with Defendants) to Defendants’ officers or
employees or their immediate families. Defendants shall notify
FDA in writing of the identity of the Expert within ten (10)
business days of retaining such Expert;
C. Defendants report to FDA in writing the actions that they have
taken to: (1) correct all violations brought to Defendants’
attention by the Expert and/or set forth in FDA’s Forms FDA
483 from all prior FDA inspections since 2001 and the March 3,
2011 Warning Letter; and (2) ensure that each of Defendants’
devices is the subject of an approved application for premarket
approval pursuant to 21 U.S.C. § 360e(a), the subject of an
effective investigational device exemption pursuant to 21 U.S.C.
§ 360j(g), or the subject of a cleared premarket notification
pursuant to 21 U.S.C. § 360(k);
D. Defendants recall and destroy, under FDA’s supervision, all
devices manufactured, processed, packed, labeled, held, and/or
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distributed during the time period beginning June 30, 2001,
through and including the date of entry of this Order.
Defendants shall bear the costs of destruction and the costs of
FDA’s supervision. Defendants shall not dispose of any such
products in a manner contrary to the provisions of the FDCA,
any other federal law, or the laws of any state or Territory, as
defined in the FDCA, in which the products are disposed;
E. Defendants permit inspection of their operations by FDA, and
FDA, as it deems necessary to evaluate Defendants’ compliance
with the terms of this Order, inspects Defendants’ operations to
determine whether the requirements of this Order have been
met, and whether Defendants are operating in conformity with
the FDCA, applicable regulations, and this Order; and
F. FDA notifies Defendants in writing that Defendants appear to be
in compliance with the requirements set forth in Paragraphs
8(A)-8(E) of this Order. Under no circumstances shall FDA’s
silence be construed as a substitute for written notification.
9. Defendants and each and all of their directors, officers, agents,
representatives, employees, attorneys, successors, and assigns, and any and all
of their Associated Persons who have received actual notice of this Order by
personal service or otherwise, are enjoined under the provisions of 21 U.S.C.
§ 332(a) from directly or indirectly doing or causing to be done any act that:
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A. Violates 21 U.S.C. § 331(a) by introducing or delivering for
introduction

into

introduction

or

interstate
delivery

for

commerce,

or

introduction

causing
into

the

interstate

commerce of articles of device, as defined by 21 U.S.C. § 321(h),
that are adulterated within the meaning of 21 U.S.C.
§ 351(f)(1)(B);
B. Violates 21 U.S.C. § 331(a) by introducing or delivering for
introduction

into

introduction

or

interstate
delivery

for

commerce,
introduction

or

causing
into

the

interstate

commerce of articles of device, as defined by 21 U.S.C. § 321(h),
that are misbranded within the meaning of 21 U.S.C. §§ 352(o),
(a), and/or (j);
C. Violates 21 U.S.C. § 331(k) by causing devices to become
adulterated within the meaning of 21 U.S.C. § 351(f)(1)(B), or
misbranded within the meaning of 21 U.S.C. §§ 352(o), (a),
and/or (j), while such devices are held for sale after shipment in
interstate commerce; or
D. Fails to implement and continuously maintain the requirements
of this Order.
10. After Defendants have complied with Paragraphs 8(A)-(E) and FDA
has notified Defendants in writing pursuant to Paragraph 8(F), Defendants shall
retain an independent person or persons (the “Auditor”) at Defendants’ expense
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to conduct audit inspections of Defendants’ operations not less than once every
six (6) months for a period of five (5) years. The Auditor shall be qualified by
education, training and experience to conduct such inspections, and shall be
without personal or financial ties (other than a consulting agreement with
Defendants) to Defendants’ officers or employees or their immediate families.
The Auditor may be the same person or persons described as the Expert in
Paragraph 8(B).
A. At the conclusion of each audit inspection, the Auditor shall
prepare a written audit report (the “Audit Report”) analyzing
whether Defendants are operating in compliance with the FDCA,
applicable regulations, and this Order, and identifying in detail
any deviations from the foregoing (“Audit Report Observations”).
As part of every Audit Report, except the first, the Auditor shall
assess the adequacy of corrective actions taken by Defendants to
correct all previous Audit Report Observations. The Audit
Reports shall be delivered contemporaneously to Defendants and
FDA by courier service or overnight delivery service no later than
ten (10) business days after the date the audit inspections are
completed. If any Audit Reports identify any deviations from the
FDCA, applicable regulations, and/or this Order, FDA may, in its
discretion, require that the five (5) year auditing cycle be
extended or begin anew. In addition, Defendants shall maintain
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complete Audit Reports and all of their underlying data in
separate files at their facilities and shall promptly make the Audit
Reports and underlying data available to FDA upon request.
B. If an Audit Report contains any adverse Audit Report
Observations, Defendants shall, within twenty (20) business
days after receipt of the Audit Report, correct those observations
unless FDA notifies Defendants that a shorter time period is
necessary. If, after receiving the Audit Report, Defendants
believe that correction of any adverse Audit Report Observation
will take longer than twenty (20) business days, Defendants
shall, within ten (10) business days after receipt of the Audit
Report,

propose

(“Correction

a

schedule

Schedule”)

additional time.

and

for

completing

provide

corrections

justification

for

the

That Correction Schedule must be reviewed

and approved by FDA in writing prior to implementation.
Defendants shall complete all corrections according to the
approved Correction Schedule. Within ten (10) business days
after Defendants’ receipt of an Audit Report, or within the time
period provided in a Correction Schedule approved by FDA, the
Auditor shall review the actions taken by Defendants to correct
the adverse Audit Report Observation(s). Within two (2) business
days after beginning that review, the Auditor shall report in
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writing to FDA whether each of the adverse Audit Report
Observations has been corrected and, if not, which adverse
Audit Report Observations remain uncorrected.
11. If, at any time after this Order has been entered, FDA determines,
based on the results of an inspection, an analysis of samples, a report or data
prepared or submitted by Defendants, the Expert or the Auditor pursuant to
this Order, or any other information, that Defendants or Associated Persons
have failed to comply with any provision of this Order, or have violated the FDCA
or applicable regulations, or that additional corrective actions are necessary to
achieve compliance with this Order, the FDCA, or applicable regulations, FDA
may, as and when it deems necessary, order Defendants in writing to take
appropriate actions, and Defendants shall implement such order immediately
upon receipt. Such actions may include, but are not limited to, the following:
A. Cease manufacturing, designing, processing, packing, labeling,
holding, storing, and/or distributing devices;
B. Revise, modify, or expand any report(s) prepared pursuant to this
Order;
C. Submit additional notifications, reports, or any other materials or
information to FDA;
D. Recall, at Defendants’ sole expense, adulterated or misbranded
devices or components manufactured, distributed, and/or sold
by Defendants and/or their Associated Persons, and/or that are
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under

the

custody

and

control

of

Defendants’

agents,

distributors, customers, consumers or Associated Persons;
E. Issue a safety alert, public health advisory, and/or press release;
and
F. Take any other corrective action(s) as FDA, in its discretion,
deems necessary to protect the public health and/or to bring
Defendants into compliance with FDCA, applicable regulations,
and this Order.
12. Any cessation of operations described in Paragraph 11 shall continue
until Defendants receive written notification from FDA that Defendants appear
to be in compliance with the FDCA, applicable regulations, and this Order. The
costs of FDA inspections, sampling, testing, travel time, and subsistence
expenses to implement the remedies set forth in Paragraph 11 shall be borne by
Defendants at the rates specified in Paragraph 14.
13. Representatives of the FDA shall be permitted, at reasonable times
and without prior notice and as and when FDA deems necessary, to make
inspections of Defendants’ and Associated Persons’ operations and, without
prior notice, take any other measures necessary to monitor and to ensure
continuing compliance with the terms of this Order. During such inspections,
FDA representatives shall be permitted: access to buildings, equipment,
in-process and finished materials, containers, and labeling therein; to take
photographs and make video recordings; to take samples of Defendants’
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materials and products, containers, and labeling; and to examine and copy all
records relating to the receipt, manufacture, design, processing, packing,
labeling, holding, and distribution of any and all devices. The inspections shall
be permitted upon presenting a copy of this Order and appropriate credentials.
The inspection authority granted by this Order is separate from, and in addition
to, the authority to make inspections under the FDCA, 21 U.S.C. § 374. In
addition, to ensure Defendants’ compliance with this Order, Plaintiff and FDA
are authorized to take any other measures necessary to monitor and to ensure
Defendants’ continuing compliance with this Order as and when they deem
necessary by all lawful means, including but not limited to using
representatives posing as a customer or potential customer to contact
Defendants’ websites, Associated Persons, and/or any other person or entity
managed or controlled in whole or in part by Defendants without the necessity
of identification or prior notice.
14. Defendants shall reimburse FDA for the costs of all FDA inspections,
investigations, supervision, reviews, examinations, and analyses that FDA
deems necessary to evaluate Defendants’ compliance with this Order. The
costs of such inspections shall be borne by Defendants at the prevailing rates in
effect at the time the costs are incurred. As of the date of entry of this Order
these rates are: $89.35 per hour or fraction thereof per representative for
inspection work; $107.09 per hour or fraction thereof per representative for
analytical or review work; $0.575 per mile for travel expenses by automobile;
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government rate or the equivalent for travel by air or other means; and the
published government per diem rate or the equivalent for the areas in which the
inspections are performed per-day, per-representative for subsistence expenses,
where necessary. In the event that the standard rates applicable to FDA
supervision of Court-ordered compliance are modified, these rates shall be
increased or decreased without further order of the Court.
15. Within five (5) business days after the entry of this Order, Defendants
shall post a copy of this Order in the employee common areas at 2035 1st
Avenue, Rapid City, South Dakota, 3312 Jackson Boulevard, Rapid City, South
Dakota, 3939 Canyon Lake Drive, Suite A, Rapid City, South Dakota, and at any
other locations at which Defendants manufacture, design, process, pack, label,
hold, and/or distribute devices. The Order shall be posted in a location and
manner to ensure that it will be viewed by Defendants’ employees. Defendants
shall ensure that the Order remains posted in its employee common areas for as
long as the Order remains in effect.
16. Within five (5) business days after the entry of this Order, Defendants
shall provide a copy of this Order, by personal service or certified mail
(restricted delivery, return receipt requested), to each and all of their directors,
officers, agents, representatives, employees, attorneys, successors, and
assigns, and any and all persons in active concert or participation with any of
them, including any Associated Persons. Within twenty (20) business days
after the entry of this Order, Defendants shall provide to FDA an affidavit
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stating the fact and manner of compliance with this Paragraph, identifying the
names, addresses, and positions of all persons or entities who have received a
copy of this Order pursuant to this Paragraph and attaching copies of the
executed certified mail return receipts.
17. In the event Defendants become associated, at any time after the
entry of this Order, with new Associated Person(s), Defendants shall within ten
(10) business days after the commencement of such association: (a) provide a
copy of this Order to each such Associated Person(s) by personal service or
certified mail (restricted delivery, return receipt requested); and (b) provide to
FDA an affidavit stating the fact and manner of compliance with this
Paragraph, identifying the names, addresses, and positions of all persons or
entities who received a copy of this Order pursuant to this Paragraph, and
attaching copies of the executed certified mail return receipts.
18. Defendants shall notify FDA in writing at least fifteen (15) business
days before any change in ownership, character, or name of its business, such
as dissolution, assignment, or sale resulting in the emergence of a successor
entity, the creation or dissolution of subsidiaries, franchisees, affiliates, or
“doing business as” entities, or any other change in the structure of Defendant
2035, Inc., and/or the entities 2035 PMA and QLasers PMA, or in the sale or
assignment of any business assets such as buildings, equipment, or inventory,
that may affect compliance with this Order. Defendants shall provide a copy
of this Order to any potential successor or assignee at least fifteen (15) business
14

days before any sale or assignment. Defendants shall furnish FDA with an
affidavit of compliance with this Paragraph no later than ten (10) business days
prior to such assignment, restructuring or change in ownership.
19. In accordance with the procedures described in subparagraphs A - C of
this Paragraph, Defendants shall make restitution to all purchasers of
Defendants’ devices since June 30, 2001, whether such purchaser obtained the
devices directly from Defendants or through one of Defendants’ distributors,
resellers or Associated Persons. Restitution shall include the full amount paid
by the purchaser, including any shipping and handling costs.
A. Within thirty (30) business days of the entry of this Order,
Defendants

shall

promptly

provide

to

Plaintiff,

and

a

Court-appointed Special Master whose services shall be paid by
the Defendants if appointed, all records necessary to determine:
(1) the identities, addresses and phone numbers of the
individuals and entities who purchased Defendants’ devices
from June 30, 2001, to the date of this Order; (2) the dates and
quantities of Defendants’ devices ordered and the price paid for
such products including any costs of shipping paid by the
purchasers (less any refunds already paid by Defendants to
such purchasers); (3) Defendants’ manufacturing costs for such
products; and (4) the profits realized by Defendants from the
sale of such products. These records shall include but not be
15

limited to state and federal tax returns; bank records; shipping
records; sales invoices; accounting records, including certified
financial statements; a truthful and fully-executed copy of
Department of Justice Form OBD-500; and any other records as
the Court or the Special Master may request. Within thirty-five
(35) business days after the entry of this Order, Defendants shall
provide to FDA an affidavit stating the fact and manner of
compliance with this Paragraph.

In the event such records

cannot be provided by Defendants, an affidavit explaining the
inability to produce some or all of the records shall be filed with
the court within thirty-five (35) business days of the entry of this
Order.
B. Upon entry of this Order, Defendants and Associated Persons
shall immediately refrain from disposing of or transferring any
assets that may interfere with implementation of restitution
payments. In addition, Defendants and Associated Persons are
prohibited from destroying, discarding, altering, transferring or
otherwise making unavailable any documents and records in
electronic format or otherwise within the custody or control of
the Defendants and Associated Persons.
C. Within forty-five (45) business days of entry of this Order,
Defendants shall submit to this Court and Plaintiff a proposed
16

restitution plan, which may include the name of an independent
contractor to effectuate restitution payments at Defendants’
expense, along with the proposed terms of engagement between
Defendants and the independent contractor.
20. All notifications, correspondence and communications required to be
sent to FDA by the terms of this Order shall be prominently marked “Order
Correspondence” and shall be addressed to the District Director, Minneapolis
District Office, United States Food and Drug Administration, 250 Marquette
Avenue, Suite 600, Minneapolis, Minnesota 55401, and shall reference this civil
action by case name and civil action number.
21. If any Defendant fails to comply with any of the provisions of this
Order including any time frame imposed by this Order, then on written notice of
the United States in this proceeding, Defendants shall pay to the United States
of America the sum of ten thousand dollars ($10,000) in liquidated damages for
each violation of this Order and an additional ten thousand dollars ($10,000) in
liquidated damages for each day such violation continues.
22. Should the United States bring and prevail in a contempt action to
enforce the terms of this Order, Defendants shall, in addition to other remedies,
reimburse the United States for its attorneys’ fees, investigation expenses,
expert witness fees, travel expenses incurred by attorneys and witnesses, and
administrative court costs relating to such contempt proceedings.

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23. All decisions specified in this Order shall be vested in the discretion of
FDA and shall be final. If contested by Defendants, FDA’s decisions under this
Order shall be reviewed by the Court under the arbitrary and capricious
standard set forth in 5 U.S.C. § 706(2)(A). Review shall be based exclusively on
the written record before FDA at the time the decision was made. No discovery
shall be taken by either party.
24. This Court retains jurisdiction of this action for the purpose of
enforcing or modifying this Order and for the purpose of granting such
additional relief as may be necessary or appropriate.
Dated October 13, 2015.
BY THE COURT:
/s/ Jeffrey L. Viken
JEFFREY L. VIKEN
CHIEF JUDGE

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