The opinion of the court was delivered by: HARTSHORNE
Plaintiff, Joseph J. Pinkus, trading as Spot Reducer Co., Spot Reducer Company, etc., here seeks to enjoin defendant, Louis A. Reilly, as Postmaster of the City of Newark, New Jersey, from enforcing a 'fraud order' issued against the plaintiff by the Post Office Department, after a lengthy administrative hearing. Substantially this proceeding is for a judicial review of the administrative determination upon the basis of the lengthy certified record before the Post Office Department. The ultimate legal question before this Court is whether this record support the administrative determination that a fraud order should issue. Since this is a question of law dependent upon this written record, the parties have each filed motions for summary judgment, Boyd v. Folsom, D.C.W.D.Pa.1957, 149 F.Supp. 925. The administrative proceeding was that provided by the statute, 39 U.S.C.A. § 259, 732
authorizing the Postmaster General to forbid the delivery of mail and the cashing to money orders directed to any person whom the Postmaster General finds to have been engaged in securing money through the mails by fraudulent representations. Our highest Court has held, in a case involving this same plaintiff, but another of his products for weight reduction, that such a fraud order lies only when there has been a showing of 'an 'actual intent to deceive'.' Reilly v. Pinkus, 1949, 338 U.S. 269, 276, 70 S. Ct. 110, 114, 94 L. Ed. 63. It is also the law that the reviewing court, in passing upon the validity of such an administrative proceeding, is 'not to resolve contradictory inferences, but only to determine if there was evidence to support the Postmaster General's findings of fraud.' Donaldson v. Read Magazine, 1948, 333 U.S. 178, 186, 68 S. Ct. 591, 596, 92 L. Ed. 628. The courts are not free to reverse such findings unless they are so palpably wrong as to amount to an abuse of discretion. Leach v. Carlile, 1922, 258 U.S. 138, 42 S. Ct. 227, 66 L. Ed. 511; New v. Tribond Sales Corp., 1927, 57 App.D.C. 197, 19 F.2d 671, certiorari denied, 1927, 275 U.S. 550, 48 S. Ct. 114, 72 L. Ed. 420; Borg-Johnson Electronics v. Christenberry, D.C.S.D.N.Y.1959, 169 F.Supp. 746.
In the light of these principles, we turn to the consideration of (1) what plaintiff Pinkus represented to the public in fact in the above regard, (2) whether these representations were true or false, and if false (3) whether Pinkus had an 'actual intent to deceive.'
1. The representations of Pinkus to the public.
In addition, Pinkus advertised to lose weight 'WHERE IT SHOWS MOST -- REDUCE MOST ANY PART OF THE BODY -- YOU CAN LOSE POUNDS AND INCHES SAFELY -- MOST ANY PART OF YOUR BODY WHERE IT IS LOOSE AND FLABBY, WHEREVER YOU HAVE EXTRA WEIGHT AND INCHES, THE 'SPOT REDUCER' CAN AID YOU * * *'
Pinkus thus represented to the public that his spot reducer would not only reduce weight, this being its major headline, but reduce measurements of the body as well. The Government's charge regarding the reduction of measurements was abandoned, but the charge regarding the reduction of weight remains.
Pinkus contends that more readers of his advertisement would be interested in reducing their 'measurements' than their actual 'weight.' But whether or not this is so, it is clear that his advertisement stressed mainly the reduction of weight. So, even if his representations as to the reduction in measurements were true, his advertising would be a misrepresentation, if his major representation as to the reduction in weight is untrue.
In the next place, the above advertisement shows that this spot reducer will give 'sure' results, also that it will attain these results without the addition of exercises, diets, steam baths, drugs or laxatives, i.e., when the spot reducer alone is resorted to. Since it adds that the spot reducer will aid 'most any part of your body where it is loose and flabby, wherever you have extra weight and inches', it is clearly intended that this spot reducer is to be used where this looseness and flabbiness exists, and where this extra weight and inches exist, i.e., the reducer is a 'spot reducer', not a reducer for generalized massage, irrespective of this looseness, flabbiness or extra weight. Such are the representations made in fact by Pinkus to the public.
But the record further shows that at the same time that Pinkus was making these representations as to his spot reducer, he was also marketing another reducing product named Fucine. In fact, he had commenced to market Fucine before he started to market his spot reducer, and he had continued the above advertisements as to his spot reducer for some two or three years before he ended his Fucine representations in 1948. In his Fucine advertisements he admits he included a printed statement that vibrating devices were of no value for the reduction of weight. Plaintiff's only reply to this proof of clearly inconsistent representations to the public as to the effectiveness to reduce weight of a vibrating device such as his spot reducer, is that the Fucine statement was taken by one of his employees from another book. But he admits he was quite aware that that representation had been made to the public for some years over his name.
2. Were plaintiff's representations to the public true or false?
The substance of the plaintiff's representations, so far as pertinent here, are that the spot reducer will reduce weight, that it will do so alone without being combined with other aids, such as exercise, diets, drugs, laxatives, or steam baths, that the vibrator is for local, not generalized, massage, and that its results are 'sure.'
All the medical experts called by the Government deny the correctness of each of these representations, as do all the textbooks which they recognize as authorities. Further, only one of the four medical witnesses offered by Pinkus, Dr. Rubin, supports these representations to the public, while another of his experts, Dr. Gehl, not only differs with it, but says he told Pinkus of this when Pinkus talked to him -- and this before marketing his spot reducer.
More specifically, not only is the testimony of the Government medical experts, Dr. Wise, Dr. Kalb, and Dr. Putnam, all to the above effect, but Dr. Kalb, a specialist in obesity, testifies, in detail, as to a lengthy test he conducted in that regard in 1943, under the supervision of a hospital staff, with some twenty patients. He further testified that not only had he written articles in that regard to that effect, but after reading all pertinent articles in the medical profession, such was the consensus of those experienced in that field. Turning to the plaintiff's medical experts, the first, Dr. Dick, while saying that massage may be helpful in the reduction of weight, admits that he has never used the spot reducer or any other massage agent alone to cause weight reduction. Thus he cannot support Pinkus' claim that the spot reducer alone will do so. Furthermore, he says that where 'the massage is carried out over the body', i.e., not locally but generally, it 'causes a reduction in weight.' But Pinkus prescribes the spot reducer locally where particular flabbiness exists, not that it be used generally. Dr. Dick, therefore, does not support Pinkus on this second point. The next medical expert of plaintiff, Dr. Waltier, who frankly admits he is not 'qualified as a physiotherapist', with obesity being but a small part of his private practice, testifies as to tests conducted by him, not as to loss of weight, but as to loss of inches -- an issue now beside the point. Outside of Dr. Gehl, the only other expert produced by plaintiff Pinkus, Dr. Rubin, again testifies only from his 'private practice,' and not from any writings or tests. His practice was general, with obesity accounting for only about 10% of his work. His conclusion is that massage affects 'local metabolism,' contrary to his colleague Dr. Dick. Finally, plaintiff calls to the stand Dr. Gehl, a specialist, who had consulted with Pinkus before he started to market the spot reducer. True, Dr. Gehl is clear, on the point here undisputed, that the spot reducer may reduce measurements. But he is equally clear that it will not reduce weight, at least when used alone without dietary or other aid. Indeed, when Dr. Gehl is shown the Monnell article, appearing in 'Principles and Practice of Physical Therapy,' edited by Mock, Pemberton & Coulter, which is ambiguous as to whether massage will reduce weight or measurements, he says he can agree with that writer only if his ambiguous statement means the reduction of measurements, not that of weight.
The Monnell article is the only text on the subject which, even ambiguously, supports Pinkus' contention that local massage will reduce weight. The other textbooks, Erickson, Rosenthal, and Bierman and Licht, which the various witnesses rely on as authorities -- and here both sides agree that it is the recognition of the witnesses which makes the book evidential, not the book itself -- fail to support plaintiff's contention, and are quite the other way. See Erickson, chapter headed 'Therapeutic Uses of Massage', which says: 'Massage will not remove fat deposits even if vigorous heavy movements are used.' With this Dr. Gehl agrees 'absolutely', as also with Dr. Rosenthal's book. See also Bierman and Licht, 'Physical Medicine and General Practice,' 3rd ed. 299: 'Contrary to popular belief, massage does not directly increase muscle power nor does it remove fat.' Dr. Gehl, when faced with this, answers 'Right.' In fact, after having his attention called to the Monnell article in Mock, which might be ambiguously interpreted as saying that massage will reduce fat, Dr. Gehl not only says that massage will not reduce fat, but when asked if he knows of any authority that it will, says flatly 'No. Massage will not reduce fat.' When asked, 'Is that the consensus of opinion?' he answered, 'That is correct.' Of course, with commendable accuracy Dr. Gehl indicates he is here speaking not of the reduction of fat in measurement, but in weight, and he is also careful to say that he agrees with Dr. Krusen's book on 'Physical Medicine * * *' where, in chapter 4, on the 'Therapeutic Uses of Massage', Dr. Erickson says: 'In spite of the extensive use of massage in modern times, there is a paucity of accurate ...