Closing Argument (2)

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This action was instituted in reckless disregard for the truth concerning T-Up's safety and effectiveness. No complaints had been received. Customers' monies were refunded upon request. With some few possible exceptions, only satisfied customers existed until the State dredged up several uniquely isolated consumers who were involved with Dr. MacNay and the intravenous use of T-Up and cesium chloride.

Despite the fact that the State possessed samples of T-Up for many months before it filed the Statement of Charges and knew, early in the trial, that the Respondents were performing laboratory tests on T-Up for comparison purposes, it apparently never bothered to have T-Up tested to determine its contents and strength compared to other aloe vera products on the market. It is illogical to believe that the State did not test T-Up before filing charges since T-Up's concentration representation was so central to the State's allegations. In light of the proven high concentration of T-Up, it is more likely than not that the results of such supported Respondents' representations.

Either way, because of the political fallout from the MacNay matter, the State, either in total ignorance, or contrary to its own test results, blindly plowed ahead and leveled charges involving misrepresentations concerning concentration, uniqueness and the quality of T-Up's product. The State is still pursuing these allegations in spite of the uncontradicted evidence provided by the BTR report.

However, the State's evidence on this issue has been reduced to its laughable "teaspoon" theory. If the State did not test T-Up to determine its concentration and quality before leveling charges that T-Up's representations concerning its concentration and quality were false, then the State flagrantly abused its power. If the State tested T-Up and obtained the equivalent results obtained by the BTR analysis, then its abuse of power is equally egregious. The State is in a no-win situation in its claim that Respondents' representations concerning the uniqueness and concentration of T-Up are false.

The down-the-line significance of this failure by the State is considerable. Because the medicinal effect of aloe vera is dose and concentration-dependent and the only evidence before the Court is that T-Up is the most concentrated aloe vera product on the market (and of greater concentration than any of the aloe vera products tested in any of the research papers), the State has failed to prove that this unique and concentrated aloe vera will not be as, if not more, effective than the already positive results described in State Exhibit 56.

After contacting many of the almost 4,000 customers of T-Up, the State could only come up with a handful of customers who had anything adverse to say about the company, its products and particularly, about Hoffman and Neal Deoul ("Deoul"). On the other hand, Respondents had approximately 32 consumer witnesses and more than 80 affidavits from satisfied and fervently loyal customers who swear to the medicinal benefits that T-Up and cesium chloride have provided to them. Further, Respondents' claims are supported not only by research results and a long history of the beneficial use of aloe vera in the country, but by established medical knowledge concerning the immune system and how aloe vera safely affects the immune system.

By admission, not a single State expert had personal knowledge of T-Up, its active ingredients, its safety, or its effectiveness in treating disease. Not one of the State's experts has personally used either product in their medical practices. Nevertheless, the State has accused T-Up of selling products which are dangerous, not as concentrated as represented in the company's marketing materials and ineffective in treating illnesses. The State did not prove any of these allegations. The BTR report and Dr. Heggers' interpretation of this report proved that T-Up was the concentrated product Respondents' represented and that it contained many fold more of the important ingredients that trigger the synergistic effect of aloe vera on illnesses. The State did not contest the accuracy of the BTR report.

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