In the Matter of the Complaint Against

JOEL ROBINSON d/b/a NATIONAL FUELSAVER CORPORATION
667 Washington Street
at Brookline, MA 02146

P.S. Docket No. 10/1;

Cowden, Joseph M.

APPEARANCES FOR COMPLAINANT:
ThomasA. Ziebarth, Esq.
Brendan J. O'Brien, Esq.
Consumer Protection Division
Law Department
United States Postal Service
Washington, DC 20260-1100

APPEARANCE FOR RESPONDENT:
Joel Robinson National
Fuelsaver Corporation
667 Washington Street
Brookline, MA 02146

POSTAL SERVICE DECISION

Respondent has appealed from an Initial Decision of an Administrative Law Judge which holds that with regard to the sale of the "GASAVER", Respondent is engaged in a scheme for obtaining money through the mail by means of materially false representations in violation of 39 U.S.C. § 3005.

BACKGROUND

On November 14, 1980, the Consumer Protection Division, Law Department, United States Postal Service, filed a Complaint alleging that Respondent, by means of advertisements calculated to induce readers to remit money or property through the mails, falsely represents:

"(3) . . . .

(a) The installation of GASAVER on an automobile will cause a dramatic increase in gas mileage of up to 48% or better; and

(b) GASAVER has passed the Environmental Protection Agency's (EPA) H-74 test (emission reduction) and was granted the EPA's approval to market the system.

(c) The fuel economy claims for GASAVER are supported by scientific research tests."

In its Answer, Respondent denied all of the allegations of the Complaint. A hearing was held before an Administrative Law Judge to take evidence on the allegations of the Complaint. Complainant presented the testimony of Natalie J. Hubert, a Postal Inspector, and John B. Heywood, Ph.D., a Professor of Mechanical Engineering and Director of the Sloan Automotive Laboratory at the Massachusetts Institute of Technology. Professor Heywood's current research is focused on the operating and emissions characteristics and the fuels requirements of internal combustion engines and gas turbine engines (Exhibits 16a, b). Appearing as witnesses for Respondent were Joel Robinson, owner of Respondent, who is an industrial engineer; John T. Brown, a ceramic engineer employed by the Corning Glass Company; Stephen Gordin, a Sales Representative for Respondent who arranged for a vehicle fleet test of Respondent's product; and Clyde M. Adams, Jr., a metallurgical and chemical engineer who currently is a self-employed engineering consultant but has previously held responsible engineering positions at the Massachusetts Institute of Technology, the University of Wisconsin, the University of Cincinnati and Carnegie Mellon University.

On the basis of the testimony and the documentary evidence presented, the Administrative Law Judge found that Respondent makes the representations alleged, that those representations are material and that they are false. Accordingly, he concluded that Respondent is engaged in activities which are in violation of 39 U.S.C. § 3005.

COMPLAINANT'S EXCEPTIONS

Complainant has stated three exceptions to the Initial Decision, each of which is addressed below.

1. "Permitting Professor Heywood to testify after he failed to answer correctly a single important question in his voir dire examination which lasted 1 1/2 hours and is recorded in Tr. 30 to Tr. 76."

Respondent argues that Professor Heywood should not have been permitted to testify as an expert witness because he was unable to answer a single important question on the basics of combustion fuel utilization or combustion chemistry. In this regard, Respondent, through Mr. Robinson, conducted a rather unusual and lengthy voir dire of Professor Heywood in which, at times, Mr. Robinson appeared to be testifying rather than examining the witness about his qualifications as an expert. Respondent appears to assume that answers it suggested in its questions are to be accepted as factual evidence. Respondent also assumes that the Administrative Law Judge was required to accept, without any supporting testimony or analysis, Respondent's post hearing brief interpretation of the technical aspects of various exhibits received into evidence. Neither Respondent's questions nor its interpretation of the evidence included in its post hearing brief constitutes evidence which establishes that Professor Heywood is not an expert in the area of automotive engineering, especially as it relates to combustion fuel utilization, engine operation and emissions (See Tr. p. 30).

Respondent's exception is also based on its opinion and representation that the matters it sets forth as being factual and important would be known by all experts in combustion chemistry without the aid of reference manuals. Respondent presented no evidence as to the nature, extent and type of knowledge such an expert reasonably could be expected to demonstrate on instantaneous recall. A review of the voir dire examination of Professor Heywood does not establish that he was not qualified to testify in this proceeding. To the contrary, the witness's curriculum vitae and his testimony establish that he is eminently well qualified by his knowledge, experience and education to testify as an expert witness on the issues presented in this case. The weight which properly should be accorded Professor Heywood's testimony is the subject of Respondent's second exception. Accordingly, Respondent's first exception is without merit.

2. "Having permitted Professor Heywood to testify, Professor Heywood's opinion should not have been preferred over EPA test data."

Respondent contends that the Administrative Law Judge was misled by Professor Heywood's testimony that 95% of fuel energy that enters an automobile engine is released as energy that does useful work. Respondent acknowledges that if the Professor is right and that only 5% of the fuel entering a gasoline engine leaves the engine unburned, the Initial Decision is correct. To demonstrate that the views of Professor Heywood are incorrect, Respondent attaches to its appeal brief what it states is data from a test run by an "EPA approved laboratory" and other test data stated to have been obtained from the New York City Department of Environmental Controls. Respondent argues:

2. "Having permitted Professor Heywood to testify, Professor Heywood's opinion should not have been preferred over EPA test data."

Respondent contends that the Administrative Law Judge was misled by Professor Heywood's testimony that 95% of fuel energy that enters an automobile engine is released as energy that does useful work. Respondent acknowledges that if the Professor is right and that only 5% of the fuel entering a gasoline engine leaves the engine unburned, the Initial Decision is correct. To demonstrate that the views of Professor Heywood are incorrect, Respondent attaches to its appeal brief what it states is data from a test run by an "EPA approved laboratory" and other test data stated to have been obtained from the New York City Department of Environmental Controls. Respondent argues:

"I feel that this new evidence demonstrates that Professor Heywood's basic premise (only 2 to 5% of fuel leaves an engine unburned) is completely wrong, and that in fact actual figures are about 8 times his estimate."

Respondent also contends that the Initial Decision was in error in connection with the Administrative Law Judge's findings on how air bubbles passing through Respondent's solution could carry platinum into the automobile cylinder and how that platinum comes in contact with the air fuel mixture and thereby enhances burning. Respondent's position is that studies by Mobil Oil (RX 11) and Corning Glass (RX 7) demonstrate that platinum causes a much higher percentage of fuel to burn with the same or less air entering the system. In support of its position, Respondent, in effect, in the final 4 pages of its appeal brief, attempts to take the stand and provide new testimony.

Respondent recognizes in its appeal brief that in connection with this exception it is attempting to introduce into the record evidence which was not presented in the proceeding before the Administrative Law Judge. Respondent, appearing pro se, requests advice as to how this new evidence may be properly presented.

While the receipt of new evidence is within the discretion of the presiding judge, generally a record will not be reopened and new evidence received unless it has been shown that the evidence is likely to affect the outcome of the proceeding, that it was not reasonably possible to present such evidence at the initial hearing or that the refusal to receive such evidence would result in a miscarriage of justice. See Midwest Health Research, P.S. Docket No. 6/80, (P.S.D. 1978); see generally, 73 C.J.S. Public Administrative Bodies and Procedure § 156. In the present case there appears to be no reason why the evidence Respondent now attempts to introduce could not have been introduced into the record at the hearing before the Administrative Law Judge. Moreover, Respondent has not shown that it would be a miscarriage of justice if the new evidence is not made a part of the record. Respondent had its day in court and failed to rebut Complainant's case. It should not and will not be given a second opportunity to present evidence which could have been initially presented i support of its defense against the allegations of the Complaint. See Midwest Health Research, supra.

The position taken by Respondent on appeal in connection with this exception reflects its failure to appreciate that whether the presence of platinum in a combustion process enhances that process is not an issue in this proceeding. The issues are: does Respondent make the representations alleged by the Postal Service, and if so, are those representations materially false. It its appeal brief Respondent does not deny that it makes the representations alleged or that they are material. It does, however, dispute the conclusion that the representations are false.

With regard to the falsity of representation 3(a) of the Complaint, Respondent's engineering expert testified that one cannot reasonably expect an increase in gas mileage of up to 48% or better and that test data showing a 48% increase in gas mileage is unreliable (Tr. 227-230). Thus, the falsity of this representation has been established by Respondent's own evidence.

With regard to the falsity of representation 3(b), the record is unclear as to whether the "GASAVER" has passed the Environmental Protection Agency's (EPA) H-74 test (emission reduction) (Tr. 254-256; 292, 293; Exhibits RX 1, 2, 3). However, Mr. Robinson acknowledged that the EPA does not approve fuel saving devices and that EPA tests pertain to pollutants, not fuel savings (Tr. 255). Accordingly, it is undisputed that EPA did not approve marketing of the system. Therefore, it has been established that the portion of representation 3(b) relating to EPA's approval to market the system is false.

Respondent does not mention representation 3(c) in its appeal brief. At the hearing witnesses for both parties addressed a fleet vehicle test upon which Respondent's gas saving representations are based. This testimony established that numerous variables can affect fleet tests and that absent appropriate controls such test data may be misleading (Tr. 96-100, 104-107, 193-196, 228-230, 245). The evidence presented by Respondent with regard to the conduct of the fleet test was for the most part hearsay and insufficient to be persuasive with regard to the test being accepted as a "scientific research test." (Tr. 168-174, 192-193). Respondent's expert considered that the fuel savings in excess of 25% which were indicated by this test, were unreliable (Tr. 229). On this basis the falsity of representation 3(c) has been established.

Exception 2 is without merit.

3. "Accepting Professor Heywood's opinion in areas where Professor Heywood admitted he had no knowledge or expertise."

This exception is not specifically addressed in Respondent's appeal brief. For all practical purposes it is repetitious of exception 1. For the reasons stated in connection with exception 1 there is no merit to this exception.

CONCLUSION

After consideration of the entire record and Respondent's exceptions, it is concluded that Respondent makes the representations alleged in paragraphs 3(a) and (c) and a portion of the representation alleged in paragraph 3(b) of the Complaint and that those representations are materially false in violation of 39 U.S.C. § 3005. Accordingly, the Initial Decision is affirmed, Respondent's appeal is denied and a remedial order under 39 U.S.C. § 3005 is being issued contemporaneously with this Decision.