In the Matter of the Complaint Against AMERICAN HEALTH PRODUCTS, and FORMULA-12 P. O. Box 9669 at Atlanta, GA 30319 P.S. Docket No. 7/101; 03/24/80 Cohen, James A. APPEARANCE FOR COMPLAINANT: DanielS. Greenberg, Esq. Consumer Protection Division Law Department United States Postal Service Washington, D.C. 20260 APPEARANCE FOR RESPONDENT: Christopher S. Barnard, Esq. Katz, Paller & Land Room 2000 470 East Paces Ferry Road Atlanta, GA 30305
Respondent has appealed from the Initial Decision of Administrative Law Judge Quentin E. Grant in which Judge Grant recommends the issuance of a mail stop order based on his conclusion that Respondent is engaged in a scheme or device for obtaining money through the mail in violation of 39 U.S.C. § 3005. Respondent's sole exception is based on its claim that the presiding Administrative Law Judge abused his discretion in denying Respondent's motion for a continuance of the hearing. According to Respondent, although the Initial Decision does not address the motion for continuance, "such denial has been merged into the Initial Decision and, hence, provides the sole basis of Respondent's appeal."
The facts relevant to Respondent's exception are not in dispute.
The complaint initiating this proceeding was filed on October 23, 1979. The complaint and notice of hearing were served on Respondent on November 2, 1979. The notice of hearing set the hearing date for November 27, 1979. Respondent's answer to the complaint was filed on November 19, 1979. Accompanying the answer was a request for continuance of the hearing until on or after December 10, 1979. The hearing was thereafter continued to December 12, 1979.
On November 20, 1979, the parties were directed to submit to the opposing party: "(1) the name and address of each witness to be called; (2) a concise summary of the testimony to be given by each witness; (3) a copy of each scientific writing upon which each witness intends to rely; and (4) a typewritten curriculum vitae of any person to be called to testify as an expert witness." The time for complying with the presiding officer's order of November 20, 1979, was subsequently extended to December 7, 1979. Respondent's response was received by the Recorder on December 10, 1979. This response identified as Respondent's expert witness, Dr. Gerared J. Leonard, M.D., and included a 1 1/2 page summary of his intended testimony.
On December 11, 1979, Respondent's counsel was informed by its intended expert witness, Dr. Gerard J. Leonard, that it would be impossible for him to appear in Washington on December 12 and take away essentially two whole days from his practice. Dr. Leonard indicated that his unavailability and other scheduled commitments would be such that he would not again be available until after January 7, 1980 (Motion For Continuance, paragraph 4). On the same date Respondent's counsel called the presiding officer and read to him the substance of a motion for continuance of the hearing date do to the unavailability of its expert witness. The motion states:
"1. On or about December 3, 1979 an agent of Respondent met with Dr. Gerard J. Leonard in Montreal, Canada and received his verbal commitment to appear as a witness for Respondent at the hearing scheduled for December 12 in Washington, D.C.
2. In consequence thereof, Respondent caused airline travel reservations and hotel reservations for the night of December 11, 1979 to be paid for and to be issued to Dr. Leonard. These were sent to him on December 6, 1979 by Emery Express Service by Respondent's counsel.
3. Respondent then prepared for the hearing and exchanged hearing related documents with Complainant's counsel in anticipation of the December 12, 1979 hearing.
4. On this date (December 11) Respondent's counsel was informed by Dr. Leonard that due to unanticipated excess demands on his ongoing professional medical practice in Montreal it would be impossible for him to appear in Washington on December 12 and take away essentially two whole days from his practice. Dr. Leonard indicated that his unavailability and other scheduled commitments would be such that he would not again be available until after January 7, 1980.
5. Respondent's defense to the Complaint is based entirely on the anticipated testimony of Dr. Leonard and his testimony is considered crucial to a proper understanding of cellulite and its treatment and prevention."
During the December 11, 1979, telephone conversation with the presiding Administrative Law Judge, Respondent was asked whether it would be agreeable to the detention of its mail. Respondent declined to have its mail detained and the motion was denied by the presiding officer (Tr 2,3). During the same telephone conversation, Respondent requested that in lieu of a continuance, it be permitted to file an affidavit of the expert witness, which was also denied by the presiding officer (Tr. 2).
At the beginning of the hearing on December 12, 1979, Respondent filed a written motion for continuance, the substance of which was identical to what was stated in the telephone call of December 11, 1979. Attached to the motion for continuance was an affidavit in support of the motion (Tr. 2). The affidavit states:
"Comes now Deborah Spector who first being duly sworn and under oath deposes and states the following:
1. My name is Deborah Carol Spector, Ph.D., and I am an employee of Braswell, Inc., whose subsidiary, Earthquest Ltd., markets and distributes the product, Formula-12.
In my capacity as research and product consultant for Braswell and Earthquest, Ltd., I contacted Dr. Gerard J. Leonard in Montreal, Canada and made plans to meet with him in his office in Montreal.
2. On or about the third day of December, 1979 at 1:00 o'clock p.m., I met with Dr. Leonard in his medical offices in Montreal, Canada, gave him a copy of the Complaint filed by the Postal Service Service, gave him substantiation materials held in files of Earthquest, Ltd., and secured at that meeting, his agreement to appear as a witness in behalf of the Respondent, American Health Products and Formula-12 in the Postal Service Hearing to be held in Washington, D.C. on the 12th day of December, 1979.
3. Dr. Leonard required that we forward to his attention airline tickets and an advanced witness fee payable to his order prior to his appearing as a witness. The airline tickets and the check covering the witness fees were mailed to the attention of Dr. Leonard by Emery Air Express on the 6th day of December 1979 with guaranteed delivery on the 7th day of December 1979.
Unbeknownst to myself or to the attorneys, Katz, Paller & Land for the Respondent, Canadian customs held the air express package, and to date, the package had not been delivered to Dr. Leonard.
On the 11th day of December, solely as a courtesy to insure all arrangements as being finalized, I spoke with Dr. Leonard, who for the first time advised me that the airline tickets and the witness fee check had not been received and it is for this reason, that he could not make himself available in Washington on Wednesday, December 12, 1979 and had instead, committed himself to patient appointments due to lack of confirmation from the Respondent in the form of airline tickets and witness fee coverage.
The stopping of the package by the Canadian customs agents was totally a surprise and there was no reasonable manner in which this action which I submit is unwarranted action could have been anticipated.
Respectfully submitted this the 11th day of December 1979...."
At the conclusion of the presentation of Complainant's case, Respondent requested that the presiding officer reconsider his ruling on the motion for continuance (Tr. 57). In support of his motion Respondent's counsel stated:
"...At this time I would request Your Honor to reconsider his ruling on that motion on the basis that, as contained in the motion in the affidavit which I have not submitted to the Docket Clerk, respondents' counsel was literally surprised by the sudden turn of events which rendered Dr. Leonard unavailable to attend; and this was, respondents feel, beyond the circumstances and control of respondents or respondents' counsel.
Secondarily I would also, in support of the request for reconsideration of the request to permit the introduction or submission of an affidavit, I would point out that certain authorities upon which Dr. Ayers relied were, consistent with the pretrial agreement by complainant's counsel and me, delivered to me only shortly before the hearing this morning.
Therefore I have not had the opportunity to constructively consult with any medical employee of respondents or physician with regard to preparing a cross-examination of Dr. Ayers on these particular matters upon which he relied.
Therefore, Your Honor, respondents believe that Dr. Leonard, in the form of testifying at another hearing or another phase of this hearing if continued or in the form of an affidavit, would have valuable and relevant evidence to present and request that you reconsider your rulings on both of the previously submitted motions."
The presiding officer again denied Respondent's motion for a continuance. In so doing and further in connection with his denial of the admission of the affidavit of the expert he stated:
"JUDGE GRANT: I am going to continue to deny the motion for a continuance based primarily on the fact that the reason given for Dr. Leonard's failure to appear as we sic had agreed with your client does not constitute a sufficient one in my estimation. Apparently, his practice comes before his commitment to appear as a witness, at least in this instance, if that is the case.
And, as I mentioned to you on the phone yesterday when we discussed this, although the doctor says that he would be available after the eighth of January, we have no real assurance that he may not be too busy in his private practice then to appear in accordance with another commitment should one be secured. In other words, I just don't think this is a case for continuance.
As far as the doctor's affidavit is concerned, without the opportunity to cross-examine I could give it practically no weight if it were to be received. And, for that reason, I am not going to delay the proceeding further to receive an affidavit to which I could not attach weight of any considerable amount. So I am going to deny the motion to file an affidavit of Dr. Leonard.
I think a notice was given that there might be an oral decision rendered. I think Judge Duvall gave such an order." (Tr. 59-60.)
Thereafter, Respondent requested and was allowed tomake an offer of proof on the record (Tr. 60-63).
The Initial Decision was issued on January 2, 1980. Respondent's timely appeal was filed thereafter followed by Complainant's timely reply.
Respondent argues that there was good cause for granting the continuance and that the presiding officer abused his discretion in denying its motion.*/ Respondent argues that it did all it reasonably could to insure the presence of Dr. Leonard and his:
"...eleventh hour notification to Respondent's counsel, based upon an unknown event involving a private delivery service and his subsequent commitment to his professional practice, was to say the least, a total and unbelievable surprise. These events were not orchestrated by or foreseen by Respondent or its counsel. The offer of proof made by Respondent's counsel of "Dr. Leonard's testimony reflects that he had valuable evidence to offer, directly rebutting major and critical areas of Dr. Ayers' testimony."
Although it is not altogether clear it appears that Respondent's telephone request for continuance on December 11, 1979, was based on the explanation that the expert could not spare two days from his practice. Respondent's written motion was based on the same explanation. The discussion which took place at the hearing did not expand on the reasons for the witness' unavailability, although the affidavit with the motion was submitted at the hearing and did contain the explanation that the witness scheduled patients after he failed to receive airline tickets and witness fees which had been sent to him but not received.
It is clear from Respondent's offer of proof that the testimony of the expert witness would have been relevant and material evidence. The circumstances surrounding the unavailability of the witness are not so clear. However, regardless of whether the witness simply chose not to appear or reasonably concluded he was not wanted to appear, his unavailability was not a sufficient basis to have postponed the hearing for 27 days. Respondent was aware of the hearing as of November 2, 1979, but did not secure the services of Dr. Leonard until December 3, 1979. Moreover, it did not send the ticket and fees to the witness until December 6, 1979. Its failure to obtain Dr. Leonard's services earlier and to make firm and subsequently verified arrangements with him substantially in advance of the hearing does not place Respondent in the blameless position it argues it is in. Furthermore, the length of continuance desired, 27 days, and the failure to show that another expert could not have been available in a shorter time period also militates against a decision in Respondent's favor. Moreover, Respondent's request for the extension most probably would have been more favorably considered by the presiding officer (and certainly on appeal by the Judicial Officer) had it agreed to the detention of its mail which it did not do. Such action would have assured that the Respondent was not realizing any unjustified benefit as a result of the lengthy delay.
When balanced with the public interest to be protected from violations of 39 U.S.C. § 3005, and considering all of the surrounding circumstances including the inconvenience to the opposing party and its witness and the responsibility of each party to assure the availability of its own expert witnesses, it was not an abuse of discretion to deny Respondent's request for a 27-day extension of the hearing date.
Accordingly, Respondent's appeal is denied and a remedial order under 39 U.S. Code § 3005 is being issued herewith.
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