P.O.D. Docket No. 2/88
February 05, 1963
In the Matter of the Complaint That )
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MEDICAL SALES CORP., and )
MEDICAL SALES )
)
at )
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Jersey City, New Jersey ) P.O.D. Docket No. 2/88
)
(hereinafter called Respondent), is )
engaged in conducting a scheme for )
obtaining money through the mails in )
violation of 39 U.S.Code 4005 )
(formerly 39 U.S. Code 259 and 732). )
APPEARANCES:
Ralph B. Manherz, Esq.
Office of the General Counsel
Post Office Department
for Complainant
Solomon H. Friend, Esq.
Bass & Friend
342 Madison Avenue
New York, New York
for Respondent
Bosone, Reva Beck
DEPARTMENTAL DECISION
The Respondent, Medical Sales Corporation and Medical Sales at Jersey City, New Jersey, has been charged with engaging in the advertisement and sale through the mail of a device 1/ called "Aid-Mor" for use of males in sexual intercourse. The Respondent relied upon the case of Jeffries v. Olesen, 121 F.Supp. 463, in his motion to dismiss the complaint and has continued to rely upon the facts and law involved in the Jeffries v. Olesen case.
In that case the product involved was one called the Erector that was described among other descriptions of being an aid to married men in their marital relations. This device as advertised was composed of flesh-colored, soft, simple surgical rubber with a texture and consistency similar to that of human flesh, and having a torso embodying the appliance that was rigid which would insure the insertion while both bands of it were of extreme elasticity. In the Jeffries v. Olesen case the Petitioner alleged that he was denied due process of law, that the findings of law made to sustain the order were not supported by the evidence, and that the conclusions of the Postmaster General were contrary to law.
I agree with the Jeffries v. Olesen conclusion of law that the Petitioner was denied due process of law and it seems to me that that was the chief decision in the case. In this case the Petitioner who lived in California where his place of business was, and who had a sick wife who required his not being away from California made it impossible for him to be present in Washington with witnesses on the date of the hearing. The Government put on its case and a decision against the Petitioner was made. Certainly the hearing in this case should have been held in California.
In the Jeffries case a Dr. Gordon A. Granger, a physician described as possessing considerable experience in the field of sexual disorders, appeared as a medical expert in behalf of the Post Office. His testimony was to the effect that The Erector device would not do what the advertising circular said it would do and he gave his reasons. The judge held the evidence of Dr. Granger to be merely that of opinion.
In the present case of Medical Sales Corporation the product of the Respondent is a device alluded to in the advertising material of the Respondent as the "Aid-Mor" which among other descriptions of the device is said to aid married men in prolonging healthy marital relations and "to help maintain the happiness of married couples." The "Aid-Mor" is made, so the advertising says, from grease-resisting soft plastic, yet firm enough for its purpose. Two devices are in evidence. They may be grease-resisting but they certainly are not of a soft plastic. The devices are all in one piece with three tiny holes at the end; the small device is composed of pink plastic which is about 2/16 of an inch thick; the larger device is about 3/16 of an inch thick. There is no elasticity from one end of the device to the other. There is some flexibility from one side to the other--but the devices, in my mind, are thick and rigid. The device in the Jeffries case and that in this have some similarity but the similarity is slight.
In this case the Post Office called Dr. William J. Evans as a witness. He has specialized in obstetrics and gynecology. He is a member of the American Medical Association, the D.C. Medical Association, the Georgetown Clinical Society, and the Washington Gynecology Society. He said that gynecology covers the diseases, medical and surgical, of the female. He is now employed at the Food and Drug Administration, Medical Bureau, and is at present lecturing in gynecology at the Georgetown University. He said--Tr. 13--"that the subject of gynecology covers the area of sexual activities between husband and wife."
In his testimony Dr. Evans said--Tr. 13--"There are a great many problems and varied problems in the field of unsatisfactory sexual activity. A great many of them are psychosomatic, the psychiatric aspects of which I only know the results rather than the cause. It is due to marital friction and difficulty. It can be due to problems of money matters between husband and wife; the matter of indulgence in alcohol is quite a problem at times; and a great deal of it goes back to childhood problems. Then, it may be due to organic disease and, of course, the great problem in many of the cases is due to age."
Dr. Evans was asked, ". . . would, in your opinion, the use of these devices in accordance with the instruction, insure satisfactory sex relations when the male is otherwise unable to perform the sex act?" He answered, "I do not think so."--Tr. 16. He was asked, "Would the normal, average woman, Doctor, receive satisfaction in the sex act through the use of this device by the male partner?" Dr. Evans answered, "I think the normal, average woman would be repulsed by this thing. I think it would lead to frigidity and do anything but help in the normal sex act as far as the woman is concerned." He went on to say that the device would not enable elderly men and fat men to perform the sex act with satisfaction and that the device would not eliminate the various causes of unsatisfactory sex relations between the partners regardless of whether such dissatisfaction is due to physical or psychological causes.--Tr. 17.
Dr. Evans said that 70 per cent of the married couples receive the ultimate satisfaction in marital relations.--Tr. 54. That leaves then 30 per cent who in varying degrees do not have this satisfaction--Tr. 55-56--that "the person who had a problem in frigidity due to other extraneous causes whether it is health, being tired, arguments, family squabbles, sickness in the family, worry, that that would be aggravated by this device if anything."
The doctor testified that the average diameter of the device is over 1-1/2 inches--Tr. 46--and that 1-1/2 inches would be dangerous.--Tr. 47.
As to its safety he said, "Due to its construction and size, particularly the larger one, I would say it could cause physical damage, trauma, lacerations to the female organs on the basis of the average, normal size of the vagina, clitoris of the normal female. Particularly this would be true in a woman who had reached the menopause and where the vagina and the tissues of the external sex organ of the female becomes thinned, inelastic and easily lacerated. It could cause lacerations and tears of blood vessels and it would only take a very small one to do that. From experience I know that even the slightest damage in that area, if it ruptures a small artery, could go on to cause a hemmorhage that could be fatal if it wasn't handled properly."--Tr. 22 and 23.
"This device," Dr. Evans said, "would repulse the wife's sensitivities. I think it would lead to vaginismus in most cases and dyspareunia. Vaginismus is a painful contraction of the muscle of the vagina. Dyspareunia is painful intercourse."--Tr. 19.
Later on the doctor said, "I do not believe the average male would even think of using this device. Furthermore, he would get no sexual satisfaction from its use--absolutely--and if you are speaking of a marital act, it cannot be one-sided."--Tr. 67.
The doctor--Tr. 24--said that his expressed opinions were in conformity with informed medical views on the subject; that during the course of his experience, training, research and investigation he has not come upon any reputable medical views which differ from his testimony. There is no conflicting medical testimony.
The Respondent argues ably on the importance place a "refund of money" has in this type of case that it shows there was no fraudulent intent. "A refund is proper matter for a jury's consideration."--Stunz v. U.S., 27 F.2d 575. It is an element not to be taken alone but in conjunction with the whole of the case.
I agree with the Hearing Examiner when he said in his initial decision "that the Respondent does not make the representation attributed to it in the last part of paragraph 3(a) nor representation 3(b). And I agree with the Hearing Examiner when he said in his decision "In regard to the charges in paragraphs 3(c), 3(d), 3(e) and 3(f) of the complaint, if an intelligent, educated, sophisticated person analytically reads the advertising literature used by the Respondent, he may not agree that all of such representations are made. In this connection, there is for consideration the statement of the Supreme Court (Mr. Justice Black speaking) in Donaldson v. Read Magazine, 1948, 333 U.S. 178, 188, that:
'Advertisements as a whole may be completely misleading although every sentence separately considered is literally true. j This may be because things are omitted that should be said or because advertisements are composed or purposefully printed in such way as to mislead. Wiser v. Lawler, 189 U.S. 260, 264; Farley v. Simmons, 99 F.(2d) 343, 346; *** Questions of fraud may be determined in the light of the effect advertisements would most probably produce on ordinary minds. *** 'Laws are made to protect the trusting as well as the suspicious.' Federal Trade Comm'n. v. Standard Education Society, 302 U.S. 112, 116.'
Also in point is the Court's statement in Gottlieb v. Schaffer, D.C.N.Y., 1956, 141 F.Supp. 7, that the gullible, the simple, the unwary and the unsuspecting are entitled to the protection of the mail fraud law just as are the knowledgeable and the worldly-wise." Also--Aronberg et al v. Federal Trade Commission, 132 F.2d 165.
I do not believe it is necessary to go into the subject of implied warranty as the Hearing Examiner has done so scholarly.
Taking as a whole the advertising of the device that it is an aid to the sex relations of a married couple and to prolonging healthy marital relations, I believe that the evidence based on the doctor's testimony is sufficient to show that the device would not aid in the sex relationship and certainly would not prolong healthy marital relations if the wife were to suffer any of the reactions described by the doctor. Any couple whose sex relationship may be waning and who would not analyze the advertisements would be attracted to such statements as are in the advertisement and would expect to have the sex relationship more normal and as a result a healthy marital relationship. I believe the testimony of this highly qualified gynecologist is substantial evidence upon which to base a decision in this case in favor of the Complainant.
The Respondent, if he didn't know, has a duty to learn the effects of the use of this device. Stone v. U.S., 113 F.2d 70 (1900). It is not something that is used on the surface of one's body but something that is used inside a delicate area of a female's body--the results of which can't be seen by a layman. To entice a person who has a problem that he thinks or she thinks can be remedied by a device that fails to carry out the claims of the advertisements and can be dangerous to one's health is a fraud.
The representations, supra, are false and there is a fraudulent intent. I shall so hold that a fraudulent scheme by the Respondent is being conducted in violation of 39 U.S. Code 4005 2/ and that the Respondent is now and has been obtaining remittances of money through the mails by means of false and fraudulent representations. A fraud order will issue.
2/ § 4005. Fraudulent and lottery matter
(a) Upon evidence satisfactory to the Postmaster General that any person is engaged in conducting a scheme or device for obtaining money or property through the mail by means of false or fraudulent pretenses, representations, or promises; or engaged in conducting a lottery, gift enterprise, or scheme for the distribution of money or of real or personal property by lottery, chance, or drawing of any kind; the Postmaster General may--
(1) direct postmasters at the office at which registered letters or other letters or mail arrive, addressed to such a person or to his representative, ot return the registered letters or other letters or mail to the sender marked "fraudulent" or "lottery mail"; and
(2) forbid the payment by a postmaster to such a person or his representative of any money order or postal note drawn to the order of either and provide for the return to the remitters of the sums named in the money orders or postal notes.
(b) The public advertisement by a person engaged in activities covered by subsection (a) of this section, that remittances may be made by mail to a person named in the advertisement, is prima facie evidence that the latter is the agent or representative of the advertiser for the receipt of remittances on behalf of the advertiser. The Postmaster General is not precluded from ascertaining the existence of the agency in any other legal way satisfactory to him.
(c) As used in this section and section 4006 of this title the term "representative" includes an agent or representative acting as an individual or as a firm, bank, corporation, or association of any kind.