The makers of a controversial diet pill say a key document in the government's case against it was written by U.S. Postal Service authorities and not by the expert witness who signed it under oath.
The expert's declaration was used by the Postal Service to justify its seizure of $4 million worth of customer orders for Grapefruit 45, a diet pill made and marketed by Carlsbad-based World Communications Inc. Authorities claimed that Grapefruit 45's televised ads were misleading and violated a previous consent agreement that prohibited WCI from making false claims.
According to documents filed in federal court in Nevada and New Jersey, WCI claims that the Postal Service's expert witness merely signed a blank page--a certification paragraph declaring under oath that the preceding statements are true--before the declaration was actually written.
In addition, the company contends that the Postal Service authored the declaration.
The witness, Dr. Paul Scipione of New Jersey, insisted last week that he helped write the declaration, which summarized his criticisms of WCI's televised ads for Grapefruit 45.
He acknowledged, however, that he couldn't recall whether his signature was written on a blank piece of paper or whether it was attached to the declaration later.
Scipione said that signing a blank declaration would be "inconsistent with my own standards--I don't think I'd be dumb enough to do that."
But he conceded that "it's difficult for me to totally reconstruct" events from 15 months ago.
"I actively participated in writing . . . most of the statement," said Scipione. "So the assumption that I had nothing to do with writing (the declaration) and, by implication, that what was in it didn't fairly represent my views as an expert witness is not true."
The sworn certification of Scipione's declaration does not line up either horizontally or vertically with the type above it, according to a graphic artist who examined the document. In addition, the date shows that Scipione signed the document on Feb. 5, 1985, but the year is handwritten in. The cross-out, typed, version reads 1984.
WCI officials contend that the crooked type and the crossed-out year substantiate their claims that the Postal Service may have had several blank declaration certification forms that were signed by expert witnesses before the declarations were written.
Government officials maintain that Scipione "didn't sign blank pages," according to Postal Service attorney Nan Kalthoff. "Even if he had just signed blank pieces of paper, (the question here is) if that's his statement to which he meant to be bound."
Kalthoff described as "patently false and absurd" WCI's charges that Scipione "never saw the commercials, never wrote the statement, just sent in his signature and that he had no input into the declaration."
Kalthoff said she would "have problems if we wrote a statement and he didn't know what he was signing, but we've never done that. Generally, the way declarations go, we send lots of copies back and forth."
The brouhaha is the latest in a series of charges and countercharges raised during WCI's yearlong battle with the Postal Service over the Grapefruit 45 nationally televised commercials.
The controversial diet ads were judged misleading by the Postal Service, which seized about $4 million worth of checks and money orders from Grapefruit 45 customers in February, 1985.
Technically, authorities charged WCI with violating a 1984 consent agreement that prohibited WCI from making false claims about its diet pills.
Since then, WCI President Jay M. Kholos has made fighting postal officials something of a crusade, maintaining that he is a small-business victim of excessive government authority.
The issue of whether the Grapefruit 45 diet pills actually work or whether the televised ads were misleading seems to have become a secondary issue--at times for both sides.
"We're not surprised that Scipione's now trying to cover up some major errors of judgment he may have made," Kholos said in an interview.
Kholos and his battery of lawyers have tried--so far unsuccessfully--to take Scipione's deposition regarding the sworn declaration.
The controversy over Scipione's declaration is important because it was his expert opinion that led to the seizure of about $4 million worth of Grapefruit orders.
WCI officials contend, however, that his signature on the declaration may have been attached to the document before it was written, that he may not have read the final version of the declaration, and that the Postal Service may have sent Scipione blank pages to sign.
"I don't think Scipione necessarily intended to falsify documents," said Jerome Smith, WCI's general counsel. "We think he was simply a witness who was doing what the lawyers at the Postal Service told him to do. But the fact that he claims he can remember certain parts of his declaration but he cannot state whether or not he signed a blank page separate from the rest of his declaration . . . to us is a tacit admission that he signed an unattached blank signature page separate from the rest of the declaration."
In a bizarre twist, WCI earlier this year hired Scipione as a consultant, seeking his opinion on whether a new set of Grapefruit 45 ads could be construed as misleading by postal authorities.
In December, WCI alleged in a lawsuit that the Postal Service's detention of the $4 million worth of Grapefruit 45 orders was at least partly motivated by a personal vendetta by a San Diego postal inspector.
WCI argued that its nationally televised commercials for its diet plan were targeted for government action only after Postal Inspector Thomas Taylor of San Diego was officially reprimanded by his superiors for disclosing "confidential and proprietary information" about WCI in a Virginia newspaper article in May, 1984.
Several of the charges contained in that lawsuit were dropped two weeks ago because of "procedural technicalities," according to WCI attorney Smith. "We determined that Nevada (where the suit was filed) didn't have jurisdiction over the postal inspectors, so we dropped" the charges involving them.
Smith added, however, that WCI is "still claiming the vengeance charges."
Grapefruit 45 accounts for less than one-third of WCI's expected $50 million in revenue this year, according to officials. The company, which employs about 225 people, also runs telemarketing, direct mail marketing and television production and distribution ventures.