The Tab Grabber

A recurring theme throughout the trial was the Maxi-Aids practice of advertising one product and substituting another for it. The tab grabber is a case in point. Marvin Sandler describes this small tool as an aid to opening soft-drink cans using a slot on one end and opening bottles using a fluted hole at the other. Sandler says that it is helpful to people with arthritis and to those like airline cabin personnel who have lots of bottles and cans to open. Here is Jack Dweck questioning Elliot Zaretsky about first the Maxi-Aids simple soft-drink can opener that Maxi-Aids sold and identified by sticking on a label as a tab grabber and then the ILA product, which includes the fluted hole for opening bottles.

THE COURT: What is this?

MR. DWECK: That's the product that Mr. Zaretsky just identified as the tab grabber that Maxi-Aids ships in response to the advertisement contained in their catalog. THE COURT: Any objection?

MR. MULHOLLAND: No objections, Judge.

THE COURT: Plaintiff's Exhibit 29 in evidence.

(Plaintiff's Exhibit 29 received in evidence.) Q: Mr. Zaretsky, on the card on which this product comes, it says "magnetic pull top can opener," correct? A: Mr. Dweck, the way you describe it—

MR. DWECK: Your Honor, I'm going to again object to Mr.

Zaretsky's editorializing, Judge.

THE COURT: Well, I'm going to strike the answer. The jury is instructed to disregard it.

BY MR. DWECK:

Q: Mr. Zaretsky, can we read this together, sir? "Magnetic pull top can opener."

A: That's correct.

Q: And can you read for the Court and jury the description you have in your 1993-1994 catalog for the tab grabber? A: "The tab grabber opens cans and soda bottles easily. Excellent for people with arthritis. Opens cans and bottles instantly and safely. It is magnetic so you can keep it on the refrigerator door." I'm sorry. "Has a magnet so you can keep it on the refrigerator door."

Q: Mr. Zaretsky, I have this bottle for you, sir. Will you please demonstrate to the Court and jury how your product which you advertise as a tab grabber opens cans and soda bottles easily? A: It opens cans very easily, but it is not made for this screw-on cap; it's made for a lift-off cap.

Q: So are you telling me, sir, that that item will not open up this bottle?

A: Not a screw-on cap. We never said a screw-on cap.

MR. DWECK: Motion to strike.

THE COURT: Motion granted. Jury is instructed to disregard. Q: Are you telling this Court and jury that that product will not open up that product, Mr. Zaretsky?

A: It will not—

Q: Yes or no, sir?

A: It will not open this particular bottle.

MR. DWECK: I'll take that, Judge.

Q: Mr. Zaretsky, I'm now going to hand you this item and ask you if you can identify this item as a tab grabber opener. A: This is a different type of grabber.

Q: Does that mean yes?

A: Yes, it is.

Q: And would you agree with me, Mr. Zaretsky, that that product is labeled "tab grabber"?

A: Yes, it is.

Q: Mr. Zaretsky, would you please, sir, using that item, open the bottle.

A: First of all, it is very difficult for an arthritic person to open it.

MR. DWECK: Objection, Your Honor.

THE COURT: Motion granted. Strike the answer as not being responsive.

THE WITNESS: I cannot open this bottle. MR. DWECK: May I ask, with your permission, to allow Mr. Sandler to open that bottle with that item.

THE COURT: Yes.

(Mr. Sandler opens the bottle.)

THE WITNESS: Very good.

BY MR. DWECK:

Q: Mr. Zaretsky, is it correct, sir, that your product which you advertise as a tab grabber will not open that bottle? A: It wasn't meant to open up this bottle, no.

Mr. DWECK: Move to strike, Your Honor.

THE COURT: Motion granted. Strike the answer as not being responsive.

THE WITNESS: I'm sorry.

BY MR. DWECK:

Q: Is it your testimony, sir, that your item will not open up that bottle?

A: That's correct.

Q: Would you agree with me then, sir, that the description contained in your advertisement in your catalog 1993-94 is incorrect when it states "tab grabber opens cans and bottles easily"?

A: I do not agree with you, sir.

MR. DWECK: Move to strike on the ground it is not responsive, Your Honor.

THE COURT: It is responsive. He says no.

MR. MULHOLLAND: Thank you, Judge.

MR. DWECK: Okay.

BY MR. DWECK:

Q: Now, sir, --

THE COURT: What page was that on?

MR. DWECK: That was page 72.

JUROR NO. 4: 72.

JUROR NO. 3: 72.

MR. DWECK: 72 is right, Your Honor.

Q: Now, Mr. Zaretsky, would you agree with me, sir, that Maxi-Aids advertised that same tab grabber that I showed you from your 1993-1994 catalog, from 1986 right into the present catalog 1997? A: Honestly, I do not know what has been advertised.

THE COURT: You are not going to go through all of these catalogs.

If you say it is, we'll take your word for it, right, Mr.

Mulholland?

MR. MULHOLLAND: I'll read them later on, Judge; then I'll take his word for it.

THE COURT: All right. Go ahead.

MR. MULHOLLAND: Judge, we can concede for now. If I feel there is something that I have to bring to the Court's attention, I'll do that later on.

THE COURT: All right. You don't have to go through all of these.

BY MR. DWECK:

Q: Would you agree with me, sir, that you advertised a "tab grabber" from your 1986 catalog right into your 1997 catalog? A: I'll be honest with you, I do not remember what we advertised.

THE COURT: All right. Is it in there?

MR. DWECK: Yes, it is, Your Honor.

THE COURT: Okay. We'll accept your word as an officer of the Court that it is in there.