In the Matter of the Complaint Against ZELDCOE; ZELDCO Post Office Box 11155 at Santa Ana, CA 92711 P.S. Docket No. 7/118 01/18/80 Duvall, William A. For Complainant: Thomas A. Ziebarth, Esq. Law Department United States Postal Service Washington, D.C. 20260, For Respondent: G. Donald Weber, Jr., Esq. 505 City Parkway West, Suite 1000, Orange, CA 92668,
This proceeding was initiated on November 23, 1979, when the Consumer Protection Office of the Law Department of the United States Postal Service filed a Complaint in which it alleged that Zeldcoe and Zeldco at Santa Ana, California, the Respondent, is engaged in conducting a scheme or device for obtaining money or property through the mails by means of false representations in violation of 39 U. S. Code Section 3005. The Complainant, the Postal Service, alleged that attention is directed to the scheme by means of advertisements appearing in publications of general circulation, and by means of circular matter sent through the mail, all of which are calculated to induce the reader to remit money to the Respondent through the mails. Copies of Respondent's advertising materials were attached to the Complaint as Exhibits 1 and 2 to the Complaint.
Complainant further alleged that by means of the advertising materials attached to the Complaint, the Respondent represents directly or indirectly in substance and effect whether by affirmative statements or by omission or implications, that:
"(a) The use of the NEW HEALTH RESTORER device will get rid of health problems, body pains and miseries without the necessity of medication;
"(b) The use of the NEW HEALTH RESTORER will restore normal body functions and enable the user to live longer; and
"(c) The NEW HEALTH RESTORER is safe to use."
Complainant further alleged that the aforesaid representations are materially false as a matter of fact.
In answering the Complaint the Respondent has stated a general and specific denial of the charges in the Complaint.
At the request of the parties, the hearing was held in Los Angeles, California, for the mutual convenience of the parties.
The advertisement which is Complainant's Exhibit 1 to the Complaint reads as follows:
"GET RID of body pain with no medicine. Free details: Zeldco, Box 11155, Santa Ana, CA 92711."
The circular advertising material used by the Respondent which is attached to the Complaint as Complainant's Exhibit 2, is attached to this decision as Appendix A.
Just a literal reading of the Respondent's advertising material leads to the conclusion that the Respondent does make the representations which are set forth in the Complaint. The language from the newspaper advertisement just quoted above starts off with the words, "Get rid of body pain with no medicine." That language is part of the substance of the charge appearing in paragraph 3(a) of the Complaint. The remainder of that charge is based upon language that appears in the first paragraph of Appendix A to this decision where it says, "I am now very active and free of health problems, pains and miseries." There is no great amount of paraphrasing that has taken place with respect to the language in charge 3(a). There is nothing that could be called mischaracterization. It is simply the lifting of the language from the advertising material used by Respondent and transplanting it to the Complaint. That is a valid method of composing a charge in a Complaint.
Charge 3(b) to the Complaint is obviously based upon language appearing in the third paragraph of Appendix A, where it is stated that the use of this device for "just a few minutes per day" will give "lasting relief, and will enable you to live longer because of better function."
Again, there is not a distortion of the language that was employed on behalf of the Respondent by the advertising agency which he employed. Nevertheless, the Respondent is responsible for this material that has appeared in his advertisement.
Finally, the charge that is stated in paragraph 3(c) of the Complaint is based upon language appearing in the second paragraph of Appendix A. The language of the circular on which charge 3(c) is based reads as follows:
"The Health Restorer is new, different] So new, in fact, it has a Patent Pending on it. Yet it is so simple and safe."
It is fair to say, therefore, that it is no distortion to allege as Complainant has alleged, that the Respondent makes the representation that the new Health Restorer is safe to use.
Some reference was made to an absence of intent on the part of the Respondent to misleading anyone. Public Law 90-590, which was effective October 17, 1968, amended Section 4005 of Title 39, which was the predecessor of the present 39 U. S. Code 3005, so as to obviate the need to prove the element of intent in Postal proceedings under this section. Hence, the question of intent does not enter into these proceedings -- the question being whether there is misrepresentation.
In view of the fact that the charges which are set forth in paragraphs 3(a), (b), and (c) of the Complaint simply are transpositions of language from the Respondent's advertising to the format of a complaint, there is no evidence of misstatement of the claims being made by the Respondent, or mischaracterization.
I find as a matter of fact that the Respondent does make the representations which are set forth in the Complaint.
The representations which have been found to be made by Respondent are material representations because they are of the kind and of the character that are calculated to, and normally would, result in persons making remittances of money to the Respondent to purchase the product that is being advertised and sold.
When a person places an order with the Respondent he is sent a device which was received in evidence as Complainant's Exhibit 3B. That device may be described as having a base which appears to be roughly six or eight inches long and it is about an inch thick and an inch wide. From this base two projections extend which are approximately an inch off the center of the base, and their dimensions are about 1" X 1" X 2", with the last measurement being the length.
The method of using this device is described in Respondent's literature and summarized by Dr. Drenick, one of the witnesses, as follows:
"The person is supposed to place this device on the floor and then place himself on top of this device, such that the tailbone rests on the longer, oblong object screwed on to this space.
And the upper portion of the sacrum would be located on the two cushions, smaller objects, on this base.
Then the individual is supposed to rock back and forth along the longitudinal axis of the body for several minutes, and at the same time, move his knees from side to side.
After three minutes, the individual is supposed to move this contraption an inch upward toward the head and repeat the same procedure and do this over a number of repeated such exercises."
The position of the Complainant, of course, is that the device will not perform in accordance with the claims made in the representations.
For proof of the falsity of those claims, the Complainant relied upon the testimony of Dr. Ernst J. Drenick, a learned and experienced medical doctor, whose Curriculum Vitae and whose Bibliography were received in evidence, respectively, as Complainant's Exhibits 5A and 5B. While Dr. Drenick is not an orthopedic surgeon, he is by virtue of his training and experience, and the fact of being a medical doctor, qualified to testify with respect to the matters at issue in this proceeding, and he as permitted, therefore, to give expert testimony with respect to these matters.
Dr. Drenick said that the effect of using this device would be primarily that of passive massage. He said that it might relieve pain for persons who have muscle spasms in that area of the anatomy, but beyond that it would not be of any value, and the help that it would provide in that situation would be neither lasting nor complete. In certain conditions the use of the device as directed would actually aggravate the condition of the user. Some examples of situations in which adverse results might occur are:
First, it could cause breaks in the skin of older persons because the skin of older persons normally becomes thin and more subject to that sort of injury.
Secondly, persons who have a condition known as osteoporosis, which was defined as weakness of bone structure, would be adversely affected.
Thirdly, persons having infections in their pilenital sinuses, would tend to suffer the spread of that condition.
Fourth, people who had undiagnosed or incompletely healed fractures could be subjected to aggravation of that condition.
Fifth, in the case of persons who may be suffering with kidney infection, the use of this device could exacerbate the infected condition of the kidneys.
The use of the device could not favorably affect any bone infection, nor could it favorably affect any viral infection, cancer, or diabetes.
Dr. Drenick stated that he had examined this device only ten or fifteen minutes, and the point was raised by the Respondent that such examination provided scarcely enough acquaintance with the device to qualify the doctor to express that opinion. Respondent further asserted that if the witness expressed his opinion, it should not be accorded much weight.
There are many cases that have held that triers of fact may rely on the testimony of a qualified medical doctor who reaches the conclusion that it would be useless to subject a particular substance or device to a test, that there is no need to have such tests performed. One such case that comes to mind is N. Van Dyne Advertising Agency v. U. S. Postal Service, 371 F. Supp. 1373 (DCNY, 1974). Dr. Drenick indicated by his testimony that this is such a case. He added that he doubted that he would be able to persuade someone perform a test on the product of this Respondent, although he did not express it in exactly that language.
Dr. Drenick stated that the use of this device would not help a person to live longer as a general proposition, but he conceded that in medicine almost anything is possible at times. It should be pointed out here that there is no limitation about the capability of this device to make anyone feel better.
The claims that are made by Respondent simply are over-broad. Dr. Drenick indicated that there are further dangers associated with the use of the device because of the possibility that a patient may have some condition of which he as unaware but in which the use of this device as directed could very easily be contraindicated. Furthermore, the use of the device may cause a person with some malfunction or some undiagnosed condition to delay getting proper diagnosis and treatment.
The testimony of Dr. Drenick is in conformity with the consensus of informed scientific medical opinion on the questions about which he was examined.
Appearing as the first witness for the Respondent was Mr. Elmer T. Billman. Mr. Billman testified that he was visiting with Dr. Duncan and he obtained one of these devices from Dr. Duncan. When he began to use it, he used it intermittently from time to time, not regularly, and he experienced very little relief. Then he began to use it every day and, since he has begun the daily use of the device, he feels much better.
Mr. Billman testified that he had his condition diagnosed, and that the diagnosis was that his pain was from strain and a muscle spasm resulting therefrom. Thus, his testimony corroborates the testimony of Dr. Drenick, at least to that extent.
Secondly, the Respondent relied upon Dr. Zelmer L. Duncan, who is the inventor, or designer, and the manufacturer of this device which is under consideration today. Dr. Duncan has an extensive background of education, training, and experience in the field of chiropractic and Doctor of Chiropractic Philosophy.
Dr. Duncan said that when a person responded to the advertisement, which appeared in the publication known as Midnight Globe, they were sent the circular matter which is attached to this decision as Appendix A. Prior to this point the prospective purchaser has paid no funds. He does not pay for the device until he has received it. Dr. Duncan unfailingly makes refunds to any purchaser who is dissatisfied in any way with the device. He allows purchasers 30 days of use of the device so that he can make up his mind and if within that time he applies for a refund, it promptly is made.
Dr. Duncan designed this device because, in the first place, he had used positive traction for 25 years and he believed and does believe in it very strongly. Over these 25 years he has used positive traction on over 5000 patients. About four years ago he had an accident and his condition as a result of that accident caused him to have to be out of his office for several months. As a result of this situation, he designed this device, the purpose of which is to put the pelvis back in balance.
Dr. Duncan says that the pelvis is the keystone of the body on which the balance of the body depends. If the pelvis gets out of balance, then the body itself is out of balance with resulting discomforts of various sorts. He stated that he has shown this device to other chiropractors who use it and who think it is wonderful. After he used the device, Dr. Duncan said that he felt better. He has applied for a patent, and it appears that his patent may be, or is about to be, granted. The fact that a device is patented does not necessarily mean that is an indication that the device will be successful for the purpose for which it is designed.
Dr. Duncan stated that he has never claimed that the device is a cure-all or that it will cure cancer or infections, but he does say that the device used as directed puts the body back in balance so that the organs and the body function the way they should. He states that the device is useful as an aid, but it is not to supplant all other medical assistance. He would not use the device as a methodology in treating persons with cancer, diabetes, pilenital sinuses, and the like.
Dr. Duncan does not prescribe the same treatment for the patients who come to see him. Yet, in the advertising material that is used by Dr. Duncan in the sale of this product, it is recommended for use without limitation for persons with "body pain". (Comp. Ex. 1B) The language of the advertisement does not describe the symptoms one should have before he orders the product. Thus, the doctor does not use, or recommend for use, the device himself in the broad scope of conditions which the advertising material would lead one to believe that the use of the device would be beneficial. In short, the testimony of both parties to this proceeding supports the finding that the representations found to have been made by this Respondent are false as to material matters of fact.
Dr. Duncan stated that he no longer employs the advertisements exemplified by Complainant's Exhibits 1(a) and (b) and Appendix A. For the reasons indicated in the following excerpt from United States v. W. T. Grant Co., 345 U.S. 629, at 632 (1953), the fact that Dr. Duncan has presently desisted from advertising his product is no bar to this proceeding.
"Both sides agree to the abstract proposition that voluntary cessation of allegedly illegal conduct does not deprive the tribunal of power to hear and determine the case, i.e., does not make the case moot. United States v. Trans-Missouri Freight Assn., 166 U.S. 290 (1897); Walling v. Helmerich & Payne, Inc., 323 U.S. 37 (1944); Hecht Co., v. Bowles, 321 U.S. 321 (1944). A controversy may remain to be settled in such circumstances, United States v. Aluminum Co. of America. 148 F.2d 416, 448 (1945), e.g., a dispute over the legality of the challenged practices. Walling v. Labor Board, 341 U.S. 707, 715 (1951). The defendant is free to return to his old ways. This, together with a public interest in having the legality of the practices settled, militates against a mootness conclusion. United States v. Trans-Missouri Freight Assn., supra, at 309, 310. For to say that the case has become moot means that the defendant is entitled to a dismissal as a matter of right, Labor Board v. General Motors Corp., 179 F.2d 221 (1950). The courts have rightly refused to grant defendants such a powerful weapon against public law enforcement." (footnote omitted)
The Grant case has been, and continues to be, cited and followed on this point in many, many District and Circuit Courts, as well as in the following sampling of numerous Supreme Court decisions: United States v. Phosphate Association, 393 U.S. 199, 203 (1968); Allee, et al. v. Medrano, et al., 416 U.S. 802, 811 (1974); and Hampton v. Mow Sun Wong, 426 U.S. 88, 98 (1976).
In summary, it has been found that the Respondent in this case does advertise his product and seek remittances of money through the mail by means of certain representations which are published in publications of general circulation, and by circular matter. In this advertising material the Respondent does make the representations which are set forth in the Complaint. The representations made by the Respondent are material representations, and the representations found to have been made by the Respondent are false as to material matters of fact.
Based upon the foregoing finding of facts, it is concluded as a matter of law that the Respondent is, as charged, engaged in conducting a scheme or device for obtaining money or property through the mail by means of false representation, within the meaning of Section 3005 of Title 39, United States Code.
A mail-stop order pursuant to 39 U. S. Code 3005, substantially in the form attached, should be issued againts this Respondent.
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