A Question of Character

Setting aside, if that is possible, the formidable body of evidence of Maxi-Aids' shoddy business practice amassed during this trial, there is an interesting and significant collection of statements that shed light on the characters of the people involved. For example, Milton Kaye, who worked at various times for the American Foundation for the Blind, Vis-Aids, and ILA developing and designing catalogs, offered two interesting comments. He was a witness for the defense because he believed that he had certainly had a strong impact on the content of the ILA catalog and that he always brought much of the work he had done previously when he came to a new company. In the following interchange Jack Dweck is cross-examining Mr. Kaye:

Q: Mr. Kaye, being the dean in the industry as Mr. Mulholland described you before, you were successful in getting a recognition for the ILA name in the two or three or four years that you were there, weren't you, sir?

Q: Yes, that's true. Let me say this. My chief, my one aim was not to make money for anybody. My one aim was always to get the prices down on these aids and appliances for the blind. They were being very badly treated, and I got a free hand from Ernie Sandler [Marvin Sandler's brother, who was running ILA in the early eighties], and I was able to do this. The name of ILA became a blessing in the industry, and it was certainly recognized as having done a great job for the blind and low vision.

Q: Mr. Kaye, the success that you achieved was in getting the prices down, correct?

A: That's right.

That shows pretty decisively what Mr. Kaye thought of ILA when it came on the scene. Now here is his comment when Mulholland tried to question him on redirect examination about the numbering system used to identify the various products in vendor catalogs. At the time under discussion in this excerpt, Kaye was working for Vis-Aids at a point when Elliot Zaretsky was a partner. Kaye had apparently said during his deposition that he was responsible for the product numbering in the Vis-Aids catalog while he was there. Here is the testimony:

Q: Let me show you some numbers from some of the products in this compilation that Mr. Dweck has put together, some of the product numbers. Do you see the Lux long-ring timer, which is on page 2 of his compilation?

A: Yes.

Q: What is the product number there in the ILA catalog?

A: 450755.

Q: And that is the product number, sir, that you are not sure how it was created, correct?

A: No, obviously not.

Q: At your deposition you testified that you had created those numbers, but today you are saying you don't recall? A: Right.

Q: Mr. Kaye, I'm handing you the 1985--I'm sorry, 1985 Vis-Aids catalog, and I have it opened to page 10. This is from 1985, sir. Is the Lux long-ring timer shown on that page?

A: Yes.

MR. MULHOLLAND: And so the jury can follow, sir, this is Defendant's Exhibit AD in evidence.

Q: Mr. Kaye, in the Vis-Aids Lux long-ring timer ad, what is the product number?

A: The first digits have been changed.

Q: Read the whole number.

A: Instead of 450755 in that catalog it is D50, D as in David 50755.

Q: Mr. Kaye, were you involved in the process of substituting a D for the 4 for the first letter in the ILA numbers? A: I'm going to retract my statement. I don't think I would be that devious, I'm sorry. I don't think I was involved. I would have changed it a little more radical. I would have made a little more radical change rather than just one digit.

One of the more disillusioning themes running through this trial was the repeated six-cent margin by which Maxi-Aids bested ILA on seven watches in five different bids in recent years. The jury was clearly impressed enough with this recurring alleged coincidence to comment on it in its damage award of two million, four hundred thousand dollars and six cents. In fact, after the completion of the trial, Marvin Sandler reports that he met members of the jury in the hall and thanked them for their conscientious service. He says that the foreperson shook hands with him and said, " I hope you liked the six cents. We tagged it on to let them know that we know."

Attorney Mulholland did his best to undercut the significance of the repeated six-cent difference by calling attention in his cross-examination of Marvin Sandler to a number of bids through the years in which he, too, had beaten competitors by very small amounts. Mr. Mulholland's efforts crumbled into disaster for his clients in this exchange between Jack Dweck and Marvin Sandler during redirect examination on the subject:

Q: Mr. Sandler, I direct your attention, sir, to Exhibit B.

A: I have it.

Q: Wasn't this the bid that Mr. Mulholland was questioning you about being a penny or two pennies or five pennies cheaper than another bidder?

A: Yes.

Q: Who was the other bidder, Mr. Sandler, on this solicitation? A: Actually there were two of them. One is an organization known as the American Printing House for the Blind. The second is an organization called the Howe Press, which is a division of the Perkins School for the Blind.

Q: And those are both organizations operated by or for the blind, is that right, sir?

A: Yes.

Q: Nonprofit?

A: They are both not-for-profit organizations. Q: And you are a profit-making organization; is that correct, sir?

A: Well, there's a debate on that; we are a for-profit company. Q: Mr. Sandler, you were bidding against two not-for-profit organizations on the sale for product?

A: Yes.

Q: I direct your attention, Mr. Sandler, to the second page of that Exhibit B.

A: Yes.

Q: Do you see on the bottom third of the page, the category is books, recorders, accessories?

A: Yes.

Q: ILA bid on the first item $14.94.

A: Yes.

Q: And the American Printing House for the Blind bid a penny more than you, $14.95.

A: That's correct.

Q: Is there an explanation as to how you were a penny cheaper?

A: Yes, there is.

Photo of Marvin Sandler holding a microphone.
Marvin Sandler

Q: Would you share it with us?

A: The American Printing House for the Blind and let me to save time say that the Perkins School for the Blind also published a price list, each of them are one-price houses. If you buy one unit, ten units, or 10,000 units you pay the same price. No matter who bid or buys that book, or in this case the abacus, their price is $14.95. I bid $14.94 and lost a penny on every single one.

Q: How did you lose a penny, sir?

A: Because I paid them the full price of $14.95, and I sold them to the State of Texas for $14.94.

Q: Let me understand something, Mr. Sandler. You bought this product, the abacus from American Printing House for the Blind, at $14.95, and you listed it and bid $14.94? A: That's correct.

Q: You are in business to make money?                                Photo Caption: Marvin Sandler

A: Also in business to do what I feel is the right thing. Q: How do you explain, sir, bidding a penny cheaper on that product?

A: It requires a bit of an explanation. I've testified to the fact that I do volunteer work at the Helen Keller National Center. This is a center that is located in Sands Point, and it is used as a training center for people who are deaf and blind both. I do volunteer work there. I also employ deaf-blind people in a work-experience program, I have a relationship with them, I know them. When somebody goes to the Helen Keller National Center, their transportation is paid for. They stay there anywhere from six months to three years doing their training while they train to be independent. At the end of their six months to three-year period, their transportation is paid back home, and hopefully the job situations are established for them. During that period, if they want to go home for the holidays, if they want to see a relative, if they have any reason at all to go home, it is not paid for; they have to do it themselves.

I saw that, and in 1987 or '89, I forget, I wrote to American Airlines. I am an American Airlines Advantage card holder. The Advantage program is a program under which, when you fly, you get mileage credit which can be saved up for free tickets. Many credit card companies also allow you to charge a credit card and get miles on a specific airline, and I happen to use the American Airlines Advantage. So I wrote to American Airlines, and I said you've got people here who are deaf and blind. You have other people who are accumulating miles. Wouldn't it be a nice thing and wouldn't it also be good publicity for American Airlines if we were to allow people to contribute their miles to give free tickets to deaf-blind people to go home, and I just think it would be a nice thing. American Airlines turned me down.

I tried again two years later, and I got turned down again, and then I decided to do something about it myself. Now I can give you a more dramatic example. A Perkins Brailler, which is made by the Howe Press, Perkins division, currently sells for $640. I bid $639.95. I lose a nickel on every one. Forty of them are worth about $25,000. On $25,000 worth of merchandise, I lose 40 nickels, that's $2, but that gives me 25,000 miles, and I take those 25,000 miles and, when somebody from Helen Keller needs to fly home, I give them a free ticket. And I feel that is a win, win, win, win—four wins—situation. The American Printing House for the Blind or the Perkins School for the Blind gets their money in full, and they get it immediately. Texas, or whoever I bid to, gets the item a little bit cheaper, a few pennies, but nonetheless cheaper than they otherwise would have to pay. Number three, a deaf-blind person can go home. Number four, I feel good.

Now I have letters of appreciation from Helen Keller. I have some of them written by deaf-blind people, some written by their counselors, some written by the head of Helen Keller thanking me for my contribution for the tickets, and that's why I bid a few pennies lower, and throughout all of these bids you will find I'm anywhere from a penny to a nickel cheaper than the American Printing House for the Blind or the Perkins School for the Blind. Q: Mr. Sandler, how many items did you underbid either Howe or American Printing House for the Blind on that bid alone? A: I'll have to count. Twenty for the American Printing House for the Blind, and six for the Howe Press division of the Perkins School for the Blind.

Q: Mr. Sandler, roughly how many miles did you generate from your credit card purchases from APH and from the Howe School, that you used for contributions to provide people's transportation? A: I've been averaging about 200,000 miles per year.

Q: How many tickets does that amount to?

A: Eight.

Q: And there's no strings, no fees?

A: To a blind person, no.

Contrast the impression that story gives of Marvin Sandler with the impact of Bill Ankenbrant's testimony of his telephone conversations with Elliot Zaretsky. Ankenbrant owns and operates New Vision, a small retail outlet carrying products for blind and visually impaired people in Philadelphia. It used to be owned by Associated Services for the Blind and was called Sensations. Jack Dweck's assistant counsel Richard Hubell is questioning Mr. Ankenbrant.

Q: Did you ever receive a call from someone from Maxi-Aids concerning Independent Living Aids?

A: Yes.

Q: And who called you?

A: Mr. Elliot Zaretsky.

Q: And when did he call you?

A: I am not great with dates. It was a November, prior to an article in the Braille Monitor regarding Maxi-Aids, either the same November or the November prior to it. Q: And did Mr. Zaretsky identify himself during that telephone conversation?

A: Yes.

Q: What did he say to you, and you say to him during that telephone conversation?...[discussion between the judge and the attorneys resulting in Mr. Hubell's being allowed to continue with his line of questioning]

A: Well, basically, Mr. Zaretsky said to me that he wanted to let me know that the NFB was very upset with ILA and another company and that he was giving me the feeling that, it was sort of advice, that I should be very careful, being that New Vision is a small store, and Sensations was a small store, and when I worked for Sensations, I was pretty low on the totem pole, if I would deal with ILA, AFB would be mad at me. [obviously a slip of the tongue]

Q: AFB would be mad at you is what you said?

A: Yes.

Q: Did anyone else say anything else during that telephone conversation that you can recall?

A: I am not sure. That's the brunt of it.

THE COURT: What is AFB?

A: National Federation of the Blind, they are a famous group, a watchdog for rights of the blind. For instance, if a restaurant doesn't admit a blind person with a guide dog, they will make sure that the restaurant is aware of the blind person's rights to use a guide dog in any facility.

Q: Subsequent to the telephone conversation that you had with Mr. Zaretsky, did you find out whether or not what he told you during that conversation was true?

MR. MULHOLLAND: Objection.

THE COURT: I don't understand that question.

MR. HUBELL: I will rephrase it, Judge.

Q: What did you do after the telephone conversation with Elliot Zaretsky?

A: What did I do with Elliot or what—

Q: What did you do after the conversation? A: Well, I was a bunch younger then and insecure because, you know, I was working for a company, and being they are a social services company I never felt they completely—that I completely understood retail. I was very nervous. So I spoke to the man who started the store for the Associated Services for the Blind. THE COURT: Never mind what he told you, sustained. MR. MULHOLLAND: I move to strike about being nervous and young, et cetera.

THE COURT: I will let that stand. Your motion is denied.

Q: Did you ever find out whether or not NFB was upset with ILA?

MR. MULHOLLAND: Objection.

THE COURT: Sustained. When you see—I am sorry. When you hear the objection, don't answer.

THE WITNESS: Okay.

THE COURT: All right.

Q: Did you ever read the article that was published in the NFB?

A: Yes.

THE COURT: What article are you referring to, the article that has been the subject of a lot of discussion? MR. HUBELL: That's correct.

MR. MULHOLLAND: Objection.

THE COURT: Did he read it?

MR. HUBELL: That's correct.

THE COURT: Sustained.

Q: Did you ever listen to the article?

MR. MULHOLLAND: Objection.

THE COURT: How is that relevant?

MR. HUBELL: It goes to the conversation, Judge, that Mr. Zaretsky had with Mr. Ankenbrant.

THE COURT: No, it doesn't. Sustained. Nothing to do with the conversation.

Q: Did you continue to do business with ILA?

A: Yes, I did.

Q: And why?

A: Well, I was given a copy of the Braille Monitor. MR. MULHOLLAND: Objection. Move to strike any testimony concerning the Braille Monitor article. It is not in evidence yet.

THE COURT: Sustained.

Q: Prior to coming to court today, have you spoken to Elliot Zaretsky?

A: Yes.

Q: When was the last time you spoke to Elliot Zaretsky?

A: Not very long ago.

Q: Can you recall the date?

A: I am sorry, I am not great with dates. THE COURT: Was it a year ago, two years ago, a day ago, a month ago?

THE WITNESS: Less than a month ago, I guess—within two weeks, maybe three.

THE COURT: You are not too bad, after all; I mean at judging dates.

THE WITNESS: Thank you.

Q: Did you call Mr. Zaretsky?

A: No.

Q: Did he call you?

A: The last time. But it was in a group of three, four phone calls. The last time I called him.

Q: Can you describe the last conversation you had?

A: Yes.

Q: Who called?

A: I answered the phone, New Vision. And Mr. Zaretsky identified me, and then he identified himself. And he seemed very upset with me. And his words were, I understand you are going to be in New York. What did we ever do to you? What did I ever say to you? I basically said that I didn't feel comfortable talking about it. Q: Did he say anything else during that telephone conversation? A: He said we have always treated you—he either used the word "good" or "nice." I told him again I really didn't feel comfortable talking about it.

Q: Did you terminate the conversation?

A: Unfortunately, yes.

Q: How did you terminate the conversation? A: I told him I really don't feel comfortable. I am going to go now. It is not my standard practice.

Q: What do you mean, it is not your standard practice?

A: I don't believe in cutting people off.

Q: Why did you cut Mr. Zaretsky off then?

A: I didn't feel comfortable. He seemed angry.

MR. HUBELL: Thank you, Mr. Ankenbrant.

Then there was Pamela Zaretsky Stein, who takes the prize for unresponsiveness and arrogance, considering the relative brevity of her testimony. She was determined to admit as little as possible and make Jack Dweck work as hard as possible for what he got. This is the way it went:

Q: Did you file income tax returns with the federal government for each of the years from 1990 through 1996 for the salary that you received from Maxi-Aids for the work you did there? A: Yes.

Q: Mrs. Stein, did you own stock in Maxi-Aids in 1996?

A: I don't recollect that.

Q: Was that a yes or a no?

A: I can't answer yes or no.

Q: How about for 1995, were you an owner of stock in Maxi-Aids?

A: That's not a yes or no answer.

Q: Well, how about for 1994, either you owned stock or you didn't. Can you answer that with a yes or no? A: No, I can't. It's not a yes or no answer. I really don't know.

I can't answer that.

Q: In 1993, Mrs. Stein, did you own stock in Maxi-Aids?

A: I don't know.

Q: How about in 1992?

A: I don't know.

Q: If I were to ask you the same questions for 1991 right back to 1986, what would your answer be?

A: The same answer.

Q: You don't know?

A: That's right.

Q: Mrs. Stein, were you ever issued a stock certificate for any shares in Maxi-Aids?

A: Not that I can recall.

Q: You know what a stock certificate is, do you not?

A: Somewhat.

Q: Did you ever get a piece of paper that said you owned so many shares in Maxi-Aids?

A: Not to my knowledge.

Q: Is that a no?

A: I said not to my knowledge.

Q: Well, Mrs. Stein, were you ever a stockholder in Maxi-Aids at any time from 1986 right up until now?

A: You would have to ask my father that. I did not handle that.

MR. DWECK: Move to strike, Your Honor.

THE COURT: Yes. Motion granted. Strike the answer as not being responsive. The jury is instructed to disregard it. Q: Mrs. Stein—

A: Yes.

Q: Did you or did you not ever own any stock in Maxi-Aids from 1986 right up until now?

A: I can't answer that yes or no. I don't know. Q: Well, Mrs. Stein, have you ever received checks for the sale of stock that you owned in Maxi-Aids?

A: Not to my knowledge.

Q: Mrs. Stein, I'm going to show you these documents which have been marked in evidence as Plaintiff's Exhibit 12. These are checks made out to you, are they not?

A: That's correct, yes.

Q: Did you receive these checks?

A: Yes, I did.

THE COURT: You say this is?

MR. DWECK: 112.

THE COURT: Okay.

BY MR. DWECK:

Q: Do you know what these checks were for, Mrs. Stein?

A: My belief was that they were salary checks. Q: Mrs. Stein, I show you this check from this same Exhibit 112, and the check number is 14023. That's made out to you, isn't it? A: Yes, it is.

Q: Do you see it says stock sale?

A: Yes, I see it. Yes.

Q: Were these checks for the sale of your stock? A: To my knowledge, it was for the work that I've done. I was not told otherwise.

Q: Did you ever sell stock in Maxi-Aids for which you received these checks?

A: That was for salary.

Q: So whoever wrote "stock sale" on the check, according to what your testimony is, made a mistake?

A: You have to ask them. I can only tell you what I know. Q: Well, when you saw this check, you got the money from this check, did you not?

A: Yes, that's correct.

Q: And you deposited the money into your account?

A: Yes.

Q: Did you tell anyone that the word "stock sale" was wrong? A: I never noticed that. I cashed that check for the work that I've done.

Q: So according to what you're telling us then, you never got paid for any stock in the company; is that right? A: My understanding is those checks were for services rendered.

Q: Did you ever get paid for the sale of your stock in Maxi-Aids?

A: Not to my knowledge.

Q: Did you ever have any stock in Maxi-Aids?

A: I really believe I did, but we were very informal.

MR. DWECK: Move to strike, Your Honor.

THE COURT: After the words "I really believe I did," strike out the rest of the answer. The jury is instructed to disregard it. Q: Ms. Stein, do you own stock in Maxi-Aids as of today?

A: I honestly don't know.

Q: Well, did you ever stop being a stockholder in Maxi-Aids?

A: I don't know.

Q: Ms. Stein, do you remember in the course of the discovery in this case that you were examined before trial? A: Excuse me? Repeat that, please?

Q: Do you remember that you were asked questions and answers in this case back on August 5, 1996?

A: What are we referring to?

Q: Do you know what a deposition is, Mrs. Stein?

A: Yes, but you did not say that.

Q: Well, do you remember attending a deposition?

A: Yes, I do.

Q: Do you remember Mr. Hubell from my office asked you questions during this deposition?

A: Yes, of course I do.

Q: And there was a stenographer present taking this down in shorthand; is that correct?

A: Yes, it is.

Q: At the time of your deposition you were under oath, do you remember that?

A: Yes.

Q: And you swore to tell the truth?

A: What I believe, yes.

Q: Mrs. Stein, did you give this answer to this question? Page 66, line 25.

"Question: Did a time come you ceased being a shareholder of Maxi-Aids?

"Answer: Not to my knowledge, sir."

Did you give that answer to that question? A: At that time, at that date, if that's what is stated, then I did.

Q: Mrs. Stein, were you or were you not ever a shareholder in Maxi-Aids?

A: I believe I was a shareholder.

Q: And, as of August 5, 1996, your testimony was you still continued as a shareholder; isn't that right? A: My understanding, yes. I really don't know. I can't answer that yes or no. That would be my answer. Q: Mrs. Stein, are you a shareholder today?

A: I don't know.

Q: Have you sold your shares from the day of this deposition, August 5, 1996, until today?

A: I don't know.

Q: Mrs. Stein, did you ever receive any W-2 forms for the work you did at Maxi-Aids from 1986 right through until 1996? A: I'm sure I did, but I don't recall every year. I don't know what you're trying to get at, you are talking about—say that again, please.

Q: Mrs. Stein, you know what a W-2 is?

A: Yes, I know.

Q: You are the bookkeeper for Maxi-Aids?

A: I am not.

Q: Did you ever handle the books?

A: Yes.

Q: Did you handle the payroll?

A: Payroll is not the same as bookkeeping.

Q: So you did handle the payroll?

A: Only the last two years.

Q: You know what a W-2 is?

A: I never said I didn't.

Q: Did you ever get paid from Maxi-Aids?

A: Yes.

Q: Every year?

A: Depends on the year. If I worked and I did not get paid, I don't get a W-2.

Q: But you worked for Maxi-Aids every year, didn't you?

A: I also worked for free.

MR. DWECK: Move to strike, Your Honor.

THE COURT: Yes. Motion granted. Strike out the entire answer as not being responsive. The jury is instructed to disregard it.

BY MR. DWECK:

Q: Mrs. Stein, you say these checks, Plaintiff's 112, were salary checks; is that right?

A: That's my understanding, yes.

Q: Were there any deductions taken from your salary that reflected itself in these checks?

A: You'd have to ask the person who made the checks. I don't have any idea.

Q: You mean to know if anybody took out withholding from your salary?

A: No, I don't. You'd have to ask the person.

Q: Mrs. Stein, do you know if FICA taxes were taken out? A: I understand that, but it could have been built into the check too. I don't know.

Q: Do you know if Social Security was taken out from your salary?

A: As I say again, I don't know.

Q: Do you know if state withholdings were taken out of your salary check?

A: And I'll tell you again. I don't know. I did not write the check.

MR. DWECK: Move to strike, Your Honor.

THE COURT: After the words "I don't know," the rest of the answer is stricken.

BY MR. DWECK:

Q: Mrs. Stein, when did you become a shareholder in Maxi-Aids? A: I believe in the very beginning, when it was started, but I don't really recall.

Q: Well, did you own shares in Maxi-Aids in 1991?

A: I don't know.

Q: How about in 1992?

A: I don't know.

Q: How about in '93?

A: I don't know.

Q: And would your answer be the same for '94, '95, and '96?

A: That's correct.

Q: How about for 1989 and 1990, Mrs. Stein?

A: The same.

Q: You don't know?

A: Right.

Q: How about the '88 area or '87?

A: I'll say again, the same.

Q: '86?

A: I believe that I was, but I really don't know. Q: Mrs. Stein, was your brother Harold ever a shareholder of Maxi-Aids?

A: I can only answer for myself.

MR. DWECK: Move to strike, Your Honor.

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

BY MR. DWECK:

Q: Mrs. Stein, was your brother Harold ever a shareholder of Maxi-Aids?

A: I believe he was.

Q: When did he acquire any stock?

A: I don't know.

Q: Well, was he a shareholder in 1986?

A: I don't know.

Q: What about '87?

A: I don't know.

Q: And how about if I asked you for every year from '88 right up to '96, what would your answer be?

A: I don't know. You would have to ask him. Q: Mrs. Stein, you worked on the catalog for Maxi-Aids, did you not?

A: What year are we talking about?

Q: In any of the years you say you worked for Maxi-Aids.

A: You have to tell me the year.

Q: How about 1986?

A: Absolutely not.

Q: How about '87?

A: Absolutely not.

Q: '88?

A: Absolutely not.

Q: When was the first year you say you worked on the Maxi-Aids catalog?

A: Somewhere in 1995.

Q: And before that, did you ever work on any of the Maxi-Aids catalogs before '95?

A: Only for part of mine, but I did not get involved in the catalog, actual catalog.

Q: And you worked on the '95 catalog; is that right?

A: I didn't put it together. I got product line.

Q: Okay.

Mrs. Stein, when you worked on the catalog for Maxi-Aids, did you look at any of the competitors' catalogs? A: Absolutely not.

Q: Well, would you agree with me, Mrs. Stein, that ILA is a competitor of Maxi-Aids?

A: Absolutely not.

Q: They are not a competitor?

A: To me, no.

Q: Does Maxi-Aids have any competitors?

A: We stand alone.

"We stand alone." One certainly hopes that no other firm in the blindness field can compete with Maxi-Aids in all the various cut corners, shortcuts, tricks, double-dealings, and immoral practices laid out in the testimony of this trial. The Zaretskys did their best to suggest that Marvin Sandler single-handedly tried to destroy their livelihood and their good name in the blindness field. They claimed that they had lost money, but Jack Dweck produced evidence that their profits had doubled in the year following the Braille Monitor story. In the end the jury spoke clearly in rendering its verdict. Here is that verdict as read by the foreperson count by count in response to inquiries by the clerk: