In the Matter of the Complaint Against

 PHASE METHOD
 509 Fifth Avenue at
 New York, New York 10017

 P.S. Docket No. 2/112; 

 APPEARANCES:
 H. Richard Hefner, Esq.;
 Law Department, U. S. Postal Service,
 Washington, D.C. 20260 for Complainant

 Robert Ullman, Esq.; Bass & Ullman,
 747 Third Avenue, New York,
 New York 10017 for Respondent

Respondent's product, called "Phase Method", consists of four reducing diets, more particularly described in the record, one of which is sent to the prospective purchaser for the price of $7.95 on the basis of the graphological analysis of his personality structure. In the purchase order form (Ex. A-3) the prospective purchaser is asked to write the following message on the reverse in his or her own handwriting:

"Yes, this time I will succeed. I would like to attain my weight goal without feeling hungry, without taking dangerous pills or doing strenuous exercise but eating as often as I wish."

A graphologist, working for Respondent, determines from this handwriting sample whether the prospective purchaser of "Phase Method" is to be tagged as "extremely independent", "moderately independent", "moderately dependent", or "extremely dependent" and the corresponding diet, varying from one giving the dieter a fair degree of freedom of choice to one which gives very specific directions, is sent back.

Complainant has charged that Respondent in the sale of "Phase Method" is engaged in a scheme or device for obtaining money or property through the mails by means of false representations (39 U.S.C. 3005) which are set forth in paragraph 3 of the complaint and in the initial decision. Respondent has denied that such representations, if made, are false.

A hearing was held at which Complainant called as its expert witness a physician employed by the U.S. Food and Drug Administration and assigned by it to assist the U.S. Postal Service as collaborative officer in matters arising under 39 U.S.C. 3005, and Respondent an educational psychologist and a physician who initially had been a general practitioner, emphasizing obstetrics, and who since 1961 had practiced as a psychiatrist. At the end of the presentation of Complainant's case Respondent moved for dismissal on the ground that the testimony of Complainant's medical expert "both in terms of his qualifications and substantively did not constitute a prima facie case" (T 97). The motion was denied (ibid). On 17 July 1974 the Chief Administrative Law Judge issued his initial decision (I.D.) finding that Respondent was engaged in the scheme or device charged by Complainant and concluding that an order, as authorized by 39 U.S.C. 3005, should issue against Respondent. A timely appeal was taken by Respondent from this decision within the time allowed by the applicable rules (39 C.F.R. 952.25), as extended by order of the Acting Judicial Officer. Respondent's exceptions were as follows:

"1. Respondent excepts to the Chief Administrative Law Judge's failure to dismiss the complaint by reason of Complainant's failure to bear its burden of proof to establish by substantial evidence its allegations of material falsity as to the representations made by Respondent for the Phase Method.

"2. Respondent excepts to the Chief Administrative Law Judge's characterization of and reliance upon the testimony of Complainant's witness (I.D. 23-26).

"3. Respondent excepts to the Chief Administrative Law Judge's finding that the alleged claims made by Respondent for Phase Method are materially false (I.D. 19).

"4. Respondent excepts to the Chief Administrative Law Judge's characterizations of the testimony of Respondent's expert witnesses and his finding that their testimony sustains the allegations of the complaint (I.D. 12-13; 18-21; 19).

"5. Respondent excepts to the Chief Administrative Law Judge's conclusion of law that an order as provided in 39 U.S.C. § 3005 should be issued against this Respondent (I.D. p. 26)."

The first exception raises anew the question whether this proceeding should have been dismissed at the end of Complainant's case because of the insufficiency of the expert medical testimony adduced on its behalf. This matter was fully dealt with by the Chief Administrative Law Judge in his initial decision (I.D., pp. 22 et seq.) and was negatively decided.

Complainant's medical expert was a duly licensed physician employed by the U.S. Government for the specific purpose of assisting and advising Respondent in matters arising under 39 U.S.C. 3005 and involving medical products. Some of the matters thus coming before him for his advice and opinion may involve aspects of medical practice within his past experience, others may require him to inform himself of the literature on the subject and the consensus of medical opinion thereon. On the record the witness was shown to be fully qualified by education and experience to perform the duties officially entrusted to him and to testify as an expert witness on the truth or falsity of the representations by means of which Respondent sells its product "Phase Method". His testimony evinces adequate familiarity with the causes and treatment of obesity and the definition and practical application of graphology to permit it to be received as expert testimony. 3 WIGMORE, EVIDENCE (rev. ed. 1970) sec. 687. In this connection Respondent in its brief in support of the appeal referred to section 1696 of Wigmore's cited work and to United States v. Paddock, 68 F.Supp. 407 (W.D. Mo. 1946). The purpose of these citations is not entirely clear. Paddock states, and WIGMORE, op. cit., supra, discusses, the accepted rule that medical and other scientific textbooks cannot be admitted in evidence by themselves to establish the truth of their contents. But that was not attempted here. Medical literature was referred to by the Government witness solely to show the consensus of opinion reflected therein and the absence of any discussion of "Phase Method". For such purpose testimony on the content of medical literature (regardless of its substantive correctness) is admissible. U.S. Health Club, Inc. v. Major, 292 F.2d 665 (3d Cir. 1961), cert. den. 368 U.S. 896 (1961).

I have carefully reviewed the testimony of Complainant's medical expert witness and find, as did the Chief Administrative Law Judge that, together with the documents in evidence at the close of Complainant's case, the record at the end of Complainant's case in chief was sufficient to support a finding that Respondent was engaged in a scheme violative of 39 U.S.C. 3005 and the conclusion of law that an order, as authorized under that section, should issue against Respondent.

The next three exceptions deal with the findings reached by the Chief Administrative Law Judge on his analysis and evaluation of the entire record. A detailed examination of the record convinces me that Respondent's attack on these findings must fail. They are supported by the weight of the evidence and Respondent's citations to the record do not support its attack on these findings. Some of the testimony of Respondent's witnesses read by itself in isolation no doubt lends support to its claims on behalf of its product but on the entire record its representations are seen to be false as the Chief Administrative Law Judge found them to have been. None of the arguments are new and they are discussed sufficiently in the initial decision to which reference is made.

It follows that Respondent's fifth exception must also fail. The conclusion of law reached by the learned Chief Administrative Law Judge was correct and such an order under 39 U.S.C. 3005 is being issued contemporaneously with this decision.

09/30/74

Sobernheim, Rudolf