In the Matter of the Complaint Against EDEN VALLEY NURSERY SALES, Caroline Road at Philadelphia, PA 19176 P.S. Docket No. 7/23 June 5, 1979 William A. Duvall Chief Administrative Law Judge Sandra C. McFeeley, Esq. Law Department United States Postal Service Washington, D.C. 20260, for Complainant Charles B. Chernofsky, Esq. Weiss, Rothfarb & Chernofsky, 6 East 43rd Street, New York, NY 10017, for Respondent Before : William A. Duvall , Chief Administrative Law Judge
The Complaint in this proceeding was filed on February 22, 1979. In the Complaint it is charged that the Respondent, doing business under the name Eden Valley Nursery Sales, Caroline Road, Philadelphia, PA 19176 is engaged in conducting a scheme or device for obtaining money or property through the mail by means of false representations within the meaning of 39 U. S. Code 3005. It is charged that Respondent attracts attention to the said scheme by means of advertisements appearing in various publications. (Jt. Exs. 2 and 3; Appendices A and B hereto)
Complainant charges in paragraph III of the Complaint that by means of advertisements of which Appendices A and B are typical, Respondent seeks remittances of money through the mails by making, directly or indirectly, by means of affirmative statement, implication or omission, in substance and effect the following representations, which are alleged to be false as to material matters of fact:
"That Fragaria Cultivar , Fort Laramie Strawberry Plants,
a) Are natural climbing plants,
b) If tied so as to grow vertically along a trellis, fence or the like,
(1) Will produce larger than ordinary berries;
(2) Will produce numerous clusters of large strawberries on each plant;
(3) Will double the number of new vines produced in each successive year of growth;
(4) Will perform as in (1), (2), and (3) above in every portion of the United States."
In its Answer to the Complaint, filed on March 12, 1979, Respondent admitted that the advertisement which was attached to the Complaint (substantially the same as App. A hereto) was placed at Respondent's direction, but it denied the remainder of the material allegations of the Complaint. In addition, Respondent, in its Answer, moved for the dismissal of the Complaint as being barred (1) by the doctrine of collateral estoppel as regards the charge in paragraph III (a) of the Complaint and (2) by the doctrine of res judicata as regards the charges in paragraph III (b) of the Complaint.
In a related matter involving charges of the breach of a Consent Agreement by the parent company of this Respondent, but under the name King of All Berries , 1/ (P.S. Docket No. 6/184, decided April 6, 1979) the Judicial Officer held that the Respondent, in the advertisement which is the basis for the charge in paragraph III (a) in the instant case, "does not represent that its strawberry plants are 'natural climbing' plants." Hence, Respondent's motion to dismiss that charge was granted.
Because there has been no "judgment 'on the merits' in a prior suit involving the same parties or their privies" Respondent's motion to dismiss paragraph III (b) of the Complaint on the basis of the doctrine of res judicata was denied. Lawlor, et al. v. National Screen Service, et al. , 349 U.S. 322 (1955)
The matter came on for hearing on April 24, 1979. Counsel for both parties have filed post-hearing Proposed Findings of Fact and Conclusions of Law.
The remaining questions to be answered in this proceeding are:
1. Does the Respondent in the conduct of its business seek remittances of money or property through the mail?
2. Does the Respondent in the conduct of its business make the representations set forth in paragraph III (b) of the Complaint?
3. If the answer to question number 2, above, is in the affirmative, are those representations true or false as to material matters of fact?
The advertisements attached hereto as Appendices A and B, which were received in evidence as Joint Exhibits 2 and 3, require the finding that the Respondent, in the conduct of its business, does seek remittances of money through the mail. The order coupons, or blanks, at the bottom of the center and right-hand portions of the pages establish this fact.
To determine whether the Respondent makes the representations set forth in paragraph III (b) of the Complaint, reference again must be had to the advertisements. As to the height to which the plants will grow, one finds that such words and phrases as "Skyrocketing Pillar of Fruit", "GIANT MAN-HIGH STRAWBERRIES", "spectacular super grower soars forth to a man-high column of fruit", the "'Sugar Tower'", "Zooms from child-size to man-size in just weeks" are just some of the statements sprinkled throughout the advertisements used to indicate the unusual height one may expect Respondent's strawberry plants to grow.
The method of achieving this growth is set forth, among other places, in the third paragraph of text above the small box over the order blank in the third column of Appendix A, as follows:
"***Simply plant them next to fence, trellis, wall or even a pole ... follow the easy instructions ... tie for support ... and be thrilled by the most incredible parade of fruit, flowers, and foliage. There's just nothing else as spectacular in all of nature."
The extraordinary size of the "Sugar Tower" berries that will be produced by following Respondent's method of cultivation is indicated by the following excerpts from Appendix A (here and in subsequent quotes the location of the language is shown in [ ]):
"AS BIG AS PLUMS" [under largest type at top left-hand of the advertisement]; "the size of luscious plums" [first paragraph of text of advertisement, center column]; "BERRIES SO HUGE YOU CAN'T PUT MORE THAN ONE IN YOUR MOUTH AT A TIME" [middle of center column; in large type]; and "Yes, I want to grow MAN-HIGH STRAWBERRIES, with fruit the size of plums" [first sentence in order blank].
The productivity of the "Sugar Tower" strawberry plants is described, among other places, in the following quotations from Respondent's advertisement (App. A):
"***...spectacular super grower soars forth to a man-high column of fruit -- loaded top to bottom with clusters of huge sugar-sweet berries***" [first paragraph, center column]; "GROWS SO FAST -- SO TALL -- SO HEAVILY CLUSTERED WITH GIANT BERRIES FROM TOP TO BOTTOM]" [first sub-caption, center column); "Think of it] Super-soaring MAN-HIGH wonder-plants that you'll actually grow in giant cluster-packed pillars of fruit***" [third paragraph under the above subcaption]; and "So big are these 'SUGAR-TOWER' berries -- so breath-takingly enormous -- and so heavily clustered right up the entire plant -- you actually have to tie the plants to your walls, trellis or fence to support the overwhelming weight of the plant and the fruit]" [fifth complete paragraph, center column].
The capacity of the "Sugar Tower" strawberry plant to proliferate in succeeding years after planting is presented in the following manner (App. A):
"AND THEY MULTIPLY -- SO YOU GET
TWICE AS MANY MAN-HIGH BEAUTIES
EACH AND EVERY YEAR]
-- AND REMEMBER -- because 'SUGAR TOWER' is a
self-multiplying perennial, for every berry-laden
man-high vine you get this year, you'll get twice as many
GIANTS next year ... and new plants for years to come.
Meaning: HUNDREDS UPON HUNDREDS OF BERRIES
year-after-year]" [bottom of center column and top of
right-hand column].
Attention is called to the adaptability of Respondent's "Sugar Tower" strawberry plant to the varied climatic conditions found in the United States in the following language appearing in a box above the order blank in Appendix A, and in the third sentence above the "GUARANTEE" in Appendix B, 2/ as follows (from App. A):
"ANOTHER EXTRA BONUS
AT NO EXTRA COST]
All 'SUGAR-TOWER' Strawberry Plants are separately grown for
shipment east and west of the Rocky Mountains."
Considering Respondent's advertising material from the standpoint of "the totality of its contents" and weighing their impact "in the light of the effect [Respondent's] advertisements would most probably produce on ordinary minds", it is found that the "average reader", not one who approaches the advertisements with the "lawyer's eye for fine spun distinctions" would believe that Respondent is stating with respect to its merchandise those concepts and assurances expressed in the representations as stated in paragraph III (b) of the Complaint in this proceeding. ( Vibra Brush Corp. v. Schaffer , 152 F. Supp. 461, 465 (1957); Donaldson v. Read Magazine , 333 U.S. 178, 188-9 (1948); American Image Corp. v. U. S. Postal Service , 370 F. Supp. 964, 966 (1974))
There remains for resolution the question of whether the representations found to have been made by Respondent are true or false as to material matters of fact.
The first witness called by Complainant was Dr. Gene Galletta, who identified himself as a strawberry, blackberry and blueberry breeder for the federal Government. He is presently employed at the Fruit Laboratory, Beltsville Agricultural Research Center, Beltsville, Maryland. From his vast background of education and experience only the highlights will be mentioned: graduated University of Maryland in 1951, B.S. degree in horticulture; M.S. degree in horticulture from Rutgers University in 1953; Ph.D. degree in genetics from University of California in 1959. (Tr. 7, 8) In 1959, Dr. Galletta became an Assistant Professor of horticulture at North Carolina State University, Raleigh, North Carolina, where he was promoted from Assistant Professor to full Professor in both the Horticultural Science Department and the Department of Genetics. He remained with North Carolina State University until July of 1977 when he accepted a position with the United States Department of Agriculture as its Eastern United States Strawberry Breeder. Dr. Galletta has introduced several new varieties of strawberries and he has published numerous articles in professional publications. He is a member of the American Genetic Association, the American Pomological Society, the American Society of Horticultural Science, the Massachusetts Horticultural Society and he has been an officer in some of these professional groups. Dr. Galletta has done extensive research work, he renders consultant and advisory service to commercial and private strawberry, blueberry, grape and blackberry growers, he is called upon many times to speak to groups on horticultural topics and he answers "innumerable" letters of inquiry each year. (Tr. 9-14)
Dr. Galletta defined a strawberry plant as a low growing perennial herb of the rose family. it normally reproduces itself by modified stem structures, called runners, which take root in the nearby soil. It bears leaves on a shortened, compressed stem which is called a crown. (Tr. 16) There are two methods of reproduction of the strawberry; one, in which the berry pollinates itself, and second, by the runner method. With one exception not pertinent here, plants produced by the pollination method do not look like the mother plant. In contrast, plants grown from the runners "should be an identical copy of the mother and so all of the plants should look just like the mother, and, if they are given the same care should perform just like the mother." (Tr. 21-23)
Among the ways of classifying strawberry plants is one in which they are designated as "June-bearing" or "everbearing." As the names suggest, June-bearers produce one crop of fruit per year, while the everbearers produce two crops per year.
The strawberry develops cyclically. First, the root grows, if the plant is properly set, then the top of the plant, then the root again and then the top. In the case of the everbearer, there would be repetitive crops of flowers, fruit and runners, in that order. Normally, most of the everbearing varieties have proven to be relatively weak runner makers and, consequently, these plants have to be planted rather close together. Also, since they are relatively small plants, the number of fruits and flowers produced by the everbearing variety would be small. (Tr. 26-27)
In 1973, the Agricultural Research Service of the United States Department of Agriculture issued a notice of the development of a new strawberry plant variety. Dr. Galletta received a copy of this notification while he was with North Carolina State University. This notice reads, in part, as follows:
"The Agricultural Research Service, United States Department of Agriculture, hereby releases to nurserymen for propagation FORT LARAMIE, a new cold-hardy, productive, everbearing strawberry. It is suitable for home gardens in the High Plains and the North Central States. FORT LARAMIE, formerly tested as selection 67105-41, originated from a cross of Geneva X S.65122 (Earlidawn X Bemidji Chief) made in 1966. Seedlings were grown at Cheyenne, Wyoming, in 1967 and selected in 1968 by Gene S. Howard and James P. Huck.
"Fruit of FORT LARAMIE is large in size, bright scarlet-red in color, and firm fleshed in areas with cool nights. Fruit may become somewhat soft in areas with warm nights or if overripe. Yield is very high. Berries are attractive, being round-conic in shape. Interior color is pink to scarlet. Flavor is characteristically strawberry, aromatic, sweet and pleasant. Skin is medium to firm with yellow seed set at the surface level. Size of the later berries in a truss holds up very well.
"FORT LARAMIE is an all-season, everbearing strawberry with excellent vigor and abundant runner production. Leaves are large and medium to dark green in color with long petioles. Plants are self-fertile and pollinate well in cool or warm temperatures. They do not over-bear and will bloom, fruit and produce runners simultaneously. Plants are very cold hardy, having survived -30oF without mulch and without crown or root injury. They recover well after severe hailstorms.
"Leaf spot and other foliar diseases were not reported from the High Plains and North Central States. Some mildew was reported in Maryland and in Oregon. Wyoming grown plants were found to be virus-free when tested at the Beltsville station during the winter of 1971-72.
"A limited number of plants for propagation will be available to experiment stations and nurserymen in the spring of 1973. Written requests should be sent to Gene S. Howard, Horticultural Field Station, P. O. Box 1087, Cheyenne, Wyoming, by June 1, 1973." (Ex. C-1)
In connection with the statement in the second paragraph of the above notice that the fruit of Fort Laramie is large in size, Dr. Galletta commented on the size of strawberries in general. He stated that a strawberry is rated as --
"quite a large strawberry if it could not pass through an inch and a half to an inch and three-quarters diameter grid or if it weighed in the vicinity of, say, 20 grams or more to the individual berry.***
"I do not know that we can be definitive in terms of circumference, because of the variation in shape of berries from variety to variety, but generally a quite large strawberry would be on the order of two inches long or an inch and three-quarters to two inches long and about an inch and a half or better [in diameter at the widest part].
"Now, that is a really big strawberry. *** Now, the ones that are on the market, with very few exceptions, are not that large. So what they are calling large, say, in terms of our garden variety would be about a 12 to 15 gram berry and an inch size to an inch and a half." (Tr. 33)
Referring to the Ft. Laramie berry, Dr. Galletta said:
"The largest Fort Laramie berries that I have seen would approach three-quarters of an inch in length, which we would call a medium or a small medium berry." (Tr. 34)
Asked why the notice (Ex. C-1) states that the Fort Laramie is large in size, the witness said:
"Well, it depends on the perspective, I guess, Sandy. In this rather severe climate for which the Fort Laramie was introduced, they have difficulty in having any strawberry persist. It kills the plants as a rule. So this one that is very [hardy] appeared to be quite a large strawberry and a free runnering strawberry to them." (Tr. 34)
As to whether the yield of Fort Laramie is "very high" as indicated in Exhibit C-1, Dr. Galletta said:
"High yield would have to have at least a quart per running foot of row. The Fort Laramie has done that in the Cheyenne area, but we do not know that it has done that anywhere else. A quite high yielding strawberry, we would think of in terms of a quart and a half or two quarts per foot of row, which we do not believe the Laramie is capable of inherently." (Tr. 34)
In the course of his career as a plant breeder, Dr. Galletta has seen 40 or 50 notices similar to Exhibit C-1, and he, himself, has prepared several of them. In issuing such notices, unusual growing conditions or cultural requirements would be mentioned, whereas usual or ordinary care and conditions would not be mentioned. If a strawberry breeder and grower had trained them up a trellis or other vertical support, that would be the kind of unusual condition that would be mentioned in a release of which Ex. C-1 is an example. Since no such mention is made in the release, it must be concluded that the Fort Laramie was tested as a normal matted row. (Tr. 35-36)
The Fort Laramie was grown at the Beltsville AGricultural Research Center, Beltsville, Maryland, in 1973-74 by Dr. Galletta's immediate predecessor, Dr. Donald Scott and his partner, now Dr. Galletta's partner, Dr. Arlan Draper. Dr. Galletta had with him at the hearing the official record book in which were entered the notes on all of the strawberry plants on which tests were conducted in the growing season and the fruiting season of 1973-74. The plants were planted in 1973 and their development was noted as of May 28, 1974. A xerox copy of these notes was introduced in evidence in lieu of the original. (Ex. C-3; Tr. 49)
This record indicates: where the plant was set (the 11th row in the 8th block of rows); the plant (Fort Laramie) and its parentage (Geneva x Earlidawn x Bemidji Chief); the date on which it was rated; and various characteristics as to which it was rated, including size, firmness, smoothness, shape, color, glass, productivity, flavor, mildew and leaf scorch. The characteristics of the Fort Laramie and the other plants which were being checked or compared at the same time are rated on a ten-point scale with 10 being excellent; 1 being absolutely no good; and 6 being passing.
The ratings of Fort Laramie on individual characteristics are shown on the exhibit, but Dr. Galletta summarized them generally as follows:
"Well, then if you would compare the Fort Laramie at the top of the page with a couple of Dutch everbearing varieties, the Ostara, which is the fourth one down, and the Robrenda, which is the fifth one down, also rated on the same date, you will notice that interestingly enough Dr. Scott has indicated that the Ostara variety made no runners. The Robrenda variety made many runners and he has said nothing of the Fort Laramie, which would indicate that it was somewhere between, neither heavy runnering or no runnering.
"The Dutch variety was evidently as good size as the Fort Laramie, the Ostara a little less. All three were too soft, which is a characteristic of many of the ever bearing sorts here in the east. The Dutch varieties were a bit smoother, quite a bit smoother, two points on the scale would be quite a bit, a bit shapelier, a little bit better color, about the same production.
"In the case of the Robrenda a little bit better flavored and evidently a bit more tolerant to the mildew and about the same rating for the scorch." (Tr. 44)
The office records of Dr. Galletta's predecessor indicate that he did not recommend the Fort Laramie for growing in the eastern United States, and he so informed the originator. It is noted that the originator of Fort Laramie, Dr. Gene S. Howard, states in the notice (Ex. C-1) that "Some mildew was reported in Maryland and Oregon." (Tr. 44-45)
If one should follow the suggestion in Appendix A, to plant Fort Laramie plants by a trellis and tie up the plants for support there would be an adverse effect upon them in a number of ways. The size of the berries would be reduced, and, because the crown from which the flower and berry come would have to be sustained through the runner from the mother plant that is in the ground, both the number and the size of the fruit would be significantly reduced. (Tr. 50) Furthermore, while the tying up of the runners as directed by Respondent might not affect the number of runners produced, the quality of such runners would not be so good as they would be if they were allowed to root and grow in the ground. (Tr. 51)
Dr. Galletta, in the Spring of 1978, grew both the Fort Laramie and a plant called the King Sugar variety, the name of the plant then being sold by American Consumer, Inc. He ordered the Fort Laramie from Dr. Gene Howard, who had prepared the 1973 Department of Agriculture notice (Ex. C-1). Dr. Howard had the plants shipped from Koppes Nursery, a California nursery to which Dr. Howard has furnished the original stock. He obtained the King Sugar variety by ordering from American Consumer, Inc. The King Sugar plants were sent through the mail to Dr. Galletta's proper name at his home address in Laurel, Maryland.
The plants ordered from Koppes nursery were in good condition. They were potted and used for a variety of purposes, including disease testing. Three of these plants were taken as a check to observe with the King Sugars. Of the 12 King Sugar plants ordered and received from American Consumer, one was dead when received, six were graded as weak and showed signs of disease, and the remaining five were medium in vigor.
The plants were grown simultaneously, under identical conditions in a greenhouse where they were given the best care possible in terms of disease control, moisture, and supplemental liquid fertilizer. The day lamp was adjusted so as to provide a 16-hour day and the temperature was set to imitate June conditions, in accordance with normal greenhouse growing procedures. (Tr. 53-55)
This experiment caused Dr. Galletta to conclude that the Fort Laramie is "fairly susceptible to fruit rot" (Tr. 59); that "by no stretch of the imagination could we call those [strawberries] very large fruits" (Tr. 60); and that "the Fort Laramie, itself, may produce enough runners to be tied up, but that the fruit production would be low and the fruit small to medium in size" (Tr. 61).
If Fort Laramie is grown out of doors and the runners are tied up for support along an upright such as a trellis, and if they are left tied up and outside over a winter period, they would be killed. In the following year, if the mother plant had enough vigor, it would produce from flowers down in the crown. If it sent out more runners, they could again be manually tied up a trellis, but this would have to be done again each year if the plant is to grow up a trellis. If Fort Laramie is tied so as to grow vertically along a trellis it will not produce larger than ordinary berries. Given the same conditions, it will not produce numerous clusters of large strawberries on each plant; the number of vines or runners will not double in each successive year; and the Fort Laramie will not perform the same in every part of the United States. (Tr. 62).
Dr. Galletta's testimony is in accord with the consensus of opinion of informed plant scientists and plant breeders.
At the conclusion of Complainant's case in chief, Respondent moved to dismiss the Complaint on the ground that Complainant had not sustained its burden of proof. Respondent pointed out that Dr. Galletta's trial growth of two plants in 1978 involved, on the one hand, a Fort Laramie plant received from Koppes nursery in California through the plant's originator, Dr. Gene Howard, and, on the other hand, a plant of unknown variety received from American Consumer, Inc. The testimony of Dr. Galletta about the unknown plant, Respondent's argument runs, is irrelevant to what American Consumer, Inc. is selling this year because no sample of this year's product was obtained by Complainant and introduced in evidence. It is undisputed - it is asserted - by Respondent that it is selling Fort Laramie this year. (Tr. 66)
The process by which the purity of the lineage of strawberry plants is maintained is cloning. Webster defines "clone" as "a group of plants all of whose members are directly descended from a single individual as by grafting or budding." Dr. Galletta testified that since the plant he received from Koppes nursery was from the original stock originated by Dr. Howard, the later plants would be expected to perform "just like the mother." (Tr. 23) Therefore, it is correct that testimony about the plant obtained last year from American Consumer, Inc. is irrelevant because it was not a Fort Laramie. (Tr. 67)
On the other hand, the testimony of Dr. Galletta about the known Fort Laramie plants clearly is relevant to this proceeding since Respondent insists that Fort Laramie is the plant it is selling, and it is indisputably the plant which Respondent represents in its advertisements that it is selling. (App. A., lower left-hand corner of page in "GUARANTEE" box; App. B., right-hand column in "GUARANTEE" box)
For the foregoing reasons, Respondent's motion to dismiss the Complaint, made at the conclusion of Complainant's case in chief, was denied. In addition to Dr. Galletta's practical experience in growing the actual variety of plant under consideration in this proceeding, there is his vast background of education, training and experience which provides ample basis for the expression by him of his opinions on the subject matter involved in this proceeding.
On cross-examination Dr. Galletta maintained the positions he had taken earlier on direct examination. In response to a question he did state that the Fort Laramie fruit would be called a medium-size berry; that, while it could be regarded as a good bearer in Wyoming, in Beltsville it was between a half and two-thirds of the production of the heaviest bearers of Beltsville's varieties; that the thing which seemed to slow production and to stunt the plant was its susceptibility to fungus (Tr. 76); that the experience of the Corvallis, Oregon agricultural station was that the plant is subject to mildew damage; and that in terms of yield and size the Corvallis experience had been similar to the Beltsville experience. (Tr. 77)
With each order Respondent generally sends a pamphlet entitled "HOW TO GROW YOUR MAN-HIGH STRAWBERRIES". (Ex. R-4; Tr. 118) A part of this instruction sheet reads as follows:
"To obtain heavy yields and largest fruit, whether you are training your strawberries up supports, or on the ground, it's important to feed your plants with a soluble foliar fertilizer, at the time when the strawberry plants are beginning to form fruit. The best fertilizer formula for this purpose is a 10-20-10, and by applying it to the leaves in liquid form, the benefit goes directly into feeding the fruit. To help you ensure success we are including with each shipment of plants, a free sample of fertilizer. Thoroughly mix this with one gallon of water and sprinkle it on the leaves with a watering can at the time the strawberries are fruiting. If you wish you may use half the amount to feed plants in the spring, and the other half to feed plants in late summer -- early fall for a fall harvest."
Dr. Galletta was asked on cross-examination whether, if the proper nutrients were sprayed on the foliage at the proper time, it would make any difference in the amount of berries or the size of the fruit. The reply was:
"No, I do not believe so, because I believe that, first of all, the nutrient much of it would be lost and not taken up by the plant. That that would be taken, I think, would mostly go to the leaf and peticle, so that I believe what you would see would be a little deeper green leaf, perhaps an increased size of the leaves and perhaps an extension of the peticles.
But I do not believe that that would result in more flower production or more fruit and I cannot conceive that you could give them enough, frequently enough." (Tr. 88)
Dr. Galletta is familiar with foliar feeding. In his experience the plants so fed have not been on a trellis, but they have been permitted to grow naturally. (Tr. 92)
Part of Joint Exhibit 4 is a printed, color advertising circular, each of the four pages of which is approximately 8 1/2" x 11" in size. On what normally would be pages 2 and 4, respectively, there are, among other things, a picture of a man and a picture of a woman standing beside a plant which is tied to some upright piece which might be either a tree or a utility pole. There is much greenery, some of which is stated to be climbing ivy. At various places on the plant there are clusters of a red fruit and some single pieces of the fruit. The wording of the circular indicates that the plant is a "Sugar Tower" plant, with many fruit appearing in different places for the full height of the plant.
Doubt was expressed as to whether the fruit so depicted were, in fact, strawberries. The doubt was due to a number of factors, including: the overall appearance of the fruit; the unlikelihood that a strawberry plant and its fruit could attain the color, size, and shape of those pictured; the presence of a suture which gives more the appearance of a prune type fruit, like a plum or peach; the way the fruit is distributed is uncommon for strawberries; and the fact that the more clearly visible pieces of fruit are smooth-skinned, whereas there are no strawberries with smooth skins. (Tr. 92-97)
Referring to Joint Exhibits 1 through 4 Dr. Galletta testified that there are no strawberries which can perform as they are advertised in those exhibits. (Tr. 104-105) This opinion is based upon the totality of the witness's experience. (Tr. 106)
Respondent's first witness was Fred J. Huspen, 705 Lincoln Street, Glenview, Illinois, who attended, but did not graduate from, the University of Illinois. He has been in the nursery business for about 20 years, both in ornamentals and small fruits, and some greenhouse materials. At present he is employed at Dean Foster Nurseries, Hartford, Michigan, as Sales Manager. His duties are to help procure material that his employer buys from others to make sure it gets to the customers, and he deals with the drop ship accounts. 3/ (Tr. 109-110)
Mr. Huspen said that he did not know exactly when Dean Foster Nurseries (hereafter "Foster") first received Fort Laramie plants for testing and propagation, but he believes it was quite a bit before 1973, and he thinks that Foster received Fort Laramie from Dr. Howard. (Tr. 110) He has seen the plant growing in a vertical posture at Foster's. The plant originally started on the ground as a bush plant. When the runners exceeded 1 1/2 or 2 feet in length, they were trellised and the plant continued to grow in the trellis form. There were fruits and flowers throughout the height of the plant, but he did not say how high the plant grew. Such plants at Foster's were given special treatment in that they were fed two or three times. (Tr. 111) This feeding was performed because Foster sells not only to the commercial grower, but also to the homeowner. The homeowner buys in much smaller quantities and is more interested in the ornamental characteristics of the plant than in its productivity. (Tr. 113, 114)
Respondent offered in evidence a document which purported to be a copy of a letter dated March 14, 1977, from Dr. Gene S.
Howard to Foster. Objection to the receipt in evidence of the letter was sustained because of the lack of a showing of its authenticity. Respondent was given the opportunity to provide proof of the authenticity of the document, but adequate proof was not provided. (Tr. 118)
Mr. Huspen testified that his knowledge of Fort Laramie was acquired through personal observation. He has seen the plant (1) grown in a vertical position; (2) foliar fed in accordance with the growing instruction pamphlet; (3) produce large berries in terms of Dr. Galletta's definition of large berries; and (4) produce these large berries in clusters that are spaced throughout the plant structure. With respect to the growth in clusters, the witness stated that not all berries in a cluster will ripen at the same time, so it is possible to have one king berry, or a larger berry, with smaller berries and buds in a different stage in a cluster.
Foster ships Fort Laramie plants, also, to commercial growers throughout the United States for American Consumer, Inc. The witness states that he has had no complaints or comments from these growers and he wishes he had more Fort Laramie plants to sell. (Tr. 119-120)
Mr. Huspen has been employed at Foster's only since August 1, 1978. 4/ Before he was so employed he had no association with Foster's. Except for what he has been told by various people he has no knowledge of that business prior to the date of his employment. He has access to company records and he is aware of complaints that have been filed against his company and against American Consumer, Inc. by the Postal Service. Mr. Huspen has been heavily involved in connection with those complaints, both as to the instant hearing and as to the complaint against Foster.
Upon being handed a letter dated March 5, 1979, from the Postal Service to Foster, Mr. Huspen said he had not seen it. Thus, it would appear that his access to company records is less than he believes. (Tr. 121-125)
Since Mr. Huspen was employed at Foster's, he has spent about two days a week at the nursery. While there, his duties are to look at the plant material, make sure that it is being shipped, make sure the quality is maintained, and make sure there is enough material to fill current orders. He does not participate in the care and feeding of plants because of limitations of time, but he has watched them being cared for and fed. Until he became involved with the two complaints mentioned above, he has had little contact with the Fort Laramie strawberries as they are grown at Foster's. The bulk of the Fort Laramie plants shipped by Foster's are shipped for American Consumer, Inc. The return address on the package is that of American Consumer, Inc. In consequence, the customer who wanted to complain would contact American Consumer rather than Foster. Mr. Huspen amended his testimony so that instead of saying there had been no complaints from commercial customers he would say that Foster would take care of any complaints that are forwarded to them by American Consumer, Inc. (Tr. 126-128)
The growing instructions referred to earlier are not sent to commercial customers, but only to a homeowner, and with every order received through American Consumer. (Tr. 131) These instructions were prepared by Mr. Derek Fell for American Consumer, by whom they are furnished to Foster. Although, Mr. Huspen says that he saw strawberry plants in test beds that grew very tall and produced heavy crops, he was not well enough acquainted with their growth on a day to day basis to say what kind of care they were given. (Tr. 135)
Respondent's final witness was Derek Fell, a garden writer and consultant, Box 1, Gardenville, Pennsylvania 18926. Mr. Fell presently is employed by American Consumer, Inc. on a month-to-month basis as a consultant. He further described his duties as follows:
"Well, I take a look at American Consumer advertisements and check them over for accuracy. If I have doubts about a product, I will follow it through and determine if the claims made can be substantiated. If necessary, I will go and visit with the breeder to substantiate claims. I will verify those claims made with the Department of Agriculture or research stations." (Tr. 138)
Mr. Fell has 22 years experience associated with gardening. The first two years were as a newspaper reporter on an agricultural newspaper in England. He spent two years as an investigative reporter writing about new products in agriculture, feature writing, court reporting, and the like.
He next had seven years experience with a public relations agency in London that specialized in horticultural accounts. He worked with Europe's biggest wholesale seed house, a company called Hurst, Gunson Cooper-Taber, which he said is the oldest established seed company in the world, having been founded four years before Shakespeare was born. He described the concern as a highly reputable seed company. He worked on their catalog and won a number of awards with their catalog material, including an award in Britain's best seed catalog contest.
At that time he decided that he would like to concentrate on the seed industry. Mr. Fell came into contact with a famous lily hybridizer and he helped this man introduce his American hybrid lilies in Europe through publicity and promotion. The introduction of those lilies was done without any advertising whatsoever. It was done purely through press relations and through the quality of the plant material.
Mr. Fell was then recommended to Mr. David Burpee for work in Europe, and he helped the Burpee Seed Company promote a new strain of sweet peas in Europe: the galax, bijou and the americana. Mr. David Burpee invited Mr. Fell to join the company in the United States and he came to the United States after seven years experience in England with Hurst to work in the Burpee Seed Company's catalog department. He was responsible for all their advertising, catalog production, sales promotion, public relations and photography of the catalog, everything to do with mail order sales. He was with Burpee for six years.
After that period, Mr. Fell left Burpee and became executive director of the National Garden Bureau, which is an information office sponsored by the American Garden Seed Industry. The purpose of the National Garden Bureau was to disseminate truthful information about new varieties to newspapers and magazines throughout the United States so that they would write factual gardening material.
Mr. Fell also had a joint position as executive director of All American Seed Selection which is the national seed trials. It was his responsibility to administer those trials. The All America Selection was 55 test blocks throughout the United States to test both flowers and vegetables and vegetable fruits. In addition, Mr. Fell's work involved communication with breeders from all over the world, accepting their material and making sure the material was grown in the different trial gardens against a comparison variety and these varieties were grown in different climatic areas.
Mr. Fell was employed in that position for three years. He resigned from the National Garden Bureau and the All American Seed Selection about four years ago. Since then, he has been self-employed as a garden writer and consultant. He has published the following books: "How to Plant a Vegetable Garden" by Countryside; "New Ideas in Flower Gardening," by Countryside; "Greenhouse Gardening; House Plants for Fun and Profit," by Bookworm; and "The Women's Day Fruit and Vegetable Manual," by Foster Publications.
Mr. Fell also writes for leading newspapers and magazines. He has contributed to Encyclopedia Britanica and he has a color transparency library of about 10,000 pictures. He is familiar with photography and so-called doctoring techniques that are used. He is also a consultant to several companies in the gardening field and he works with them on advertising and publicity. These companies include "Ortho Scott, the Lawn Grass Company, a chemical company." (Tr. 141)
At the time he was executive director of the National Garden Bureau, Mr. Fell was chairman of President Ford's WIN garden committee and he was a consultant to the White House at that time. As chairman of the WIN garden committee he coordinated a number of the suggestions of the committee and wrote a position paper on how home gardening could fight inflation and how it would affect the farmer in the United States. The garden never actually got planted because of other priorities that began to occupy a lot of President Ford's time, including the ending of the war in Vietnam and other international demands on his time.
Mr. Fell also has lectured to, among others, the American Seed Plant Association, and to the Garden Writers Association. He is a past director of the Garden Writers Association of America, and a past editor of the Garden Writer's Bulletin, which he edited for two years. He is presently president of the Hobby Greenhouse Association, which is a nonprofit group involved in promoting hobby greenhouse gardening in the United States.
When asked whether, in order to operate in all of these capacities, he had to have more than just a general passing knowledge of gardening, Mr. Fell replied:
"Well, I do not claim to be an expert in a particular area like strawberries, but because I like to cover the field, I believe that I have a knack of knowing who to approach and asking the right questions and finding the best growing systems.
In many cases, I have been involved in researching material that has not generally been available. I like to do a lot of my investigative reporting from old journalism days of finding both sides of the story, going to government, finding out their side of the story, going to industry and finding out their side and perhaps creating a balance between the two trains of thought." (Tr. 144)
When asked to what extent he had done any research concerning the Fort Laramie strawberry, Mr. Fell said, in part:
"I have been familiar with the controversies surrounding the so-called climbing strawberries for a number of years, in fact, going back to England where I believe the concept originated and some of the litigation that was involved over there.
So I certainly was aware of the controversy surrounding the climbing strawberry. At the time I joined American Consumer I was of the fixed opinion that there was no such thing as a climbing strawberry, that it was, in fact, misrepresented and an exaggeration. ***"
Mr. Fell's views on climbing strawberries have undergone a radical change. His original view, that there was no such thing as a climbing strawberry, was communicated to Mr. Robert Foster of Foster Nurseries. Mr. Robert Foster wrote a lengthy letter taking the opposite position.
American Consumer then asked Mr. Fell to fly out to Hartford, Michigan, to speak to Mr. Foster and to disprove the content of Mr. Foster's letter. Mr. Fell went to Hartford, Michigan, on or about September 12, 1978. He related that the summer of 1978 had been extremely bad for the growing of strawberries because of the terrible drought and the high humidity. The drought ended the day Mr. Fell arrived and he inspected Foster's demonstration plots in a torrential downpour of rain. He reported that he saw about seven strawberry plants, trained up the side of a swimming pool fence, trained up a telegraph pole, trained up the side of a house, and some of them were mixed in with a euonymus vine, which is a type of ivy. Some of the plants had fruit growing on the runners which were not rooted in the soil.
Mr. Fell volunteered that he saw nothing that was anything like that which is depicted in the color picture of Mrs. Foster in the advertising circular which is part of Joint Exhibit 4. The witness said he had with him color slides of photographs he had taken during his visit, but these were not displayed or offered in evidence. (Tr. 146-147)
On a plant that was tied in a vertical position along a swimming pool fence, there were, according to the witness, no flowers at the top, or in the middle of the plant. There were, however, strawberries in the lower portion of that plant. "There were about six or seven daughter plants that were forming the runner and there were strawberries on the mother plant, and the first daughter plant and the second daughter plant." (Tr. 148)
Mr. Fell did, as earlier stated, prepare the growing instructions distributed to purchasers of the plants. He based this pamphlet on information received during an interview with Mr. Robert Foster. In this pamphlet it is recommended that growers use a foliar feeding program and that the foliar fertilizer, supplied by American Consumer, Inc., be applied at the time the plants are flowering and fruiting. The witness stated that he has encountered instances of foliar feeding in connection with his contacts with horticulturists.
Through his questions, Respondent's Counsel sought to elicit opinion testimony from Mr. Fell. Objection was interposed by Complainant's Counsel on the ground that the witness had not been qualified as an expert in the matters with which the questions were concerned.
Mr. Fell's reportorial and public relations qualifications have been set forth earlier herein at length. Later, under prodding by Respondent's Counsel, Mr. Fell stated:
"I would say as a result of the research and the interviews that I have conducted, I am more expert on the Fort Laramie than possibly anybody around." (Tr. 152)
The background on which Mr. Fell based his claim to expertise on the Fort Laramie plant was said by the witness to be the fact that --
"I talked to Mr. Bob Foster at Dean Foster Nurseries, who is the leading supplier to the trade of Fort Laramie. I talked to a Dr. Ourecky at the fruit experiment station at Geneva, who is acknowledged to be an expert on strawberries. I interviewed Dr. Ourecky at length on the subject of climbing strawberries. I had a conversation with Dr. Galletta concerning the question of climbing strawberries and his experience with them." (Tr. 151-152)
The facts in regard to the breeding, growth, feeding, rate of production, and other aspects of Fort Laramie strawberry cultivation had been set forth at length by Dr. Galletta. In his testimony Dr. Galletta had been careful to express his views objectively, with restraint, and with the tendency to give Respondent's position the benefit of the doubt whenever possible. His forthrightness of manner, his care in phrasing his answers with precision, his definitive knowledge of the subject matter based upon his education, training and experience and his entire manner and demeanor on the stand were persuasive and convincing that Dr. Galletta's testimony expressed all the accurate information that would have been necessary if the case had been tried to a jury.
Mr. Fell's training and experience, on the other hand, were oriented toward advertising, selling and relating what other persons had done in varied horticultural endeavors. He endorsed foliar feeding, a practice which Dr. Galletta said was of gravely doubtful, if any, value in nurturing strawberry plants; he wrote the pamphlet containing instructions for foliar feeding so he must have had an interest in justifying and supporting this methodology; and he had an obvious interest in supporting the position of the concern by which he is employed.
It has been stated that "The determination as to a witness's qualifications as an expert is a matter committed to the discretion of the trial judge, and his decision will only be upset on appeal for an abuse of that discretion." Tropea v. Shell Oil Co., 307 F.2d 757, 763 (CA 2, 1962); United States v. Bermudez, 526 F.2d 89, 98 (CA 2, 1975).
On the basis of this record, it is readily apparent that Mr. Fell is accomplished in the areas of reporting, writing, publicity, advertising and public relations. There is nothing in this record, however, which qualifies him sufficiently to warrant his being regarded as an expert witness on such an esoteric horticultural matter as the breeding, planting and growing of Fort Laramie strawberry plants.
In 1923, Wigmore , Chadbourn Revision, copyright 1978, it is said that in determining the question of whether to permit a person to testify as an expert witness --
"The only true criterion is: On this subject can a jury receive from this person appreciable help."
Upon weighing of all the considerations set forth in the foregoing paragraphs, I determined it to be appropriate to exclude the opinion testimony of Mr. Fell relating to the issues in this proceeding.
The competent, credible evidence in this case is conclusive that the Fort Laramie strawberry plant, if tied so as to grow vertically along a trellis, fence or the like, will not --
(1) produce larger than ordinary berries (Tr. 33-34, 50, 62);
(2) produce numerous clusters of large strawberries on each plant (Tr. 50, 61, 62);
(3) double the number of new vines produced in each successive year of growth (Tr. 26, 27, 50, 61):
(4) perform the same in every portion of the United States (Comp. Ex. No. 1, Tr. 76, 77).
SUMMARY OF FINDINGS OF FACT
The facts heretofore found herein are summarized as follows:
1. The Respondent under the name stated in the caption hereof does in the conduct of its business seek remittances through the mail.
2. The Respondent in the conduct of its business makes the representations set forth in paragraph III (b) of the Complaint.
3. The representations found to have been made by Respondent are false as to material matters of fact.
Upon the basis of the foregoing findings of fact, it is concluded as a matter of law that Respondent is engaged in conducting a scheme or device for obtaining money or property through the mails by means of false representation within the meaning of Section 3005 of Title 39, United States Code.
A mail-stop order in substantially the form attached should be issued against the Respondent.
____________________
1/ King of All Berries and Eden Valley Nursery Sales are
two names under which American Consumer, Inc., Caroline Road,
Philadelphia, PA 19176 has engaged in the mail order sale of
strawberry plants.
2/ Although Appendix B has not been cited in every
instance, the
language in both Appendices is the same, or the same in substance.