"They come to NIRE at the end of a long pilgrimage. They are people who have nowhere else to go. They're the ones suffering from all this."
They are the disabled—quadriplegics, cerebral palsied, hemiplegics, afflicted with vision loss, hearing impairment, or a combination of disabilities. NIRE is the National Institute for Rehabilitation Engineering, a charitable organization that offers equipment and training to help handicapped people to perform daily tasks. And all this is a four-year-long campaign against NIRE by New Jersey state officials that now has the organization in court to defend itself against a consumer fraud suit seeking up to $93,000 in fines and refunds.
The driving force behind NIRE is Donald Selwyn, its 45-year-old executive director who has been named a codefendant in the lawsuit. Friends and acquaintances describe him as a hyperactive genius. The state of New Jersey accuses him and NIRE of fraud, misrepresentation, and unconscionable commercial practices.
"He's sort of an unorthodox operator, but he seems to get results," says Bernie Posner, executive director of the President's Committee on Employment of the Handicapped. "He's a maverick inventor who has the interest of handicapped people at heart."
NIRE received a humanitarian award from the Joint Handicapped Council-National Society of the Handicapped in 1972 for its contributions to the improvement of health and rehabilitation services in the United States. The organization has been frequently praised by Harold Russell, chairman of the President's Committee, has received mention in the Congressional Record, and is supported by several state agencies outside New Jersey that attempt to rehabilitate the handicapped.
But inside New Jersey, consumer officials have been scrutinizing the operations of the private, nonprofit organization since mid-1977. Their interest was whetted when NIRE invented and started selling "Cros-Vision" glasses, a device it says can widen the field of vision of one-eyed people. Selwyn is convinced that the state wants the glasses off the market.
HELPING TECHNOLOGY Selwyn's work with the disabled goes back to the 1950s, when he designed remote controls for totally paralyzed people to signal nurses at a Wisconsin hospital. In the mid-1950s he was working for an aviation company and, as a sideline, building remote-control systems for paralyzed people, guidance systems for wheelchairs, page-turning machines, and automatic telephone dialing devices. He discovered some retired telephone company engineers working on similar projects and was frustrated that there was no clearinghouse for their research.
In the mid-1960s Selwyn designed a motorized wheelchair run by sensors contained in a helmet worn by the chair occupant. This device was first used by a man, paralyzed from the neck down, who later graduated from Long Island University.
Shortly after the wheelchair gained widespread public attention, Selwyn left his job in private industry and, with the retired telephone engineers, formed the Rehabilitation Engineering Institute in 1967. A few years later the organization changed its name to the National Institute for Rehabilitation Engineering.
Not long after starting up, an anonymous donation of $20,000 came the way of the new organization. Selwyn recruited several doctors to voluntarily examine clients, and NlRE's work was under way. The novel idea was to link engineering skills with medicine—not to cure or treat a disability but to help a handicapped person adjust to it. Usually, its devices are custom-designed to suit individual clients' needs and aren't available commercially.
For several years Selwyn ran the institute out of the basement of his home in Pompton Lakes, New Jersey, but about four years ago moved into a new cinderblock structure on donated land in nearby Butler. Half the interior of the new building is unused, the result of NIRE's cash-flow problems caused by nearly four years of investigation. Income from contributions and clients has dwindled. The institute had a staff of three paid people at its heyday. Now, the only people regularly at the office are Selwyn, who has worked without pay for two years, and a part-time secretary paid through a government program.
Curb-climbing wheelchairs, voice amplifiers for palsy victims, specialized hearing aids, and a command-control system to allow people with polio and other disabilities to drive are some of the inventions or adaptations made by NIRE. In the early 1970s Selwyn's own disability provided the impetus to create a device to improve the vision of one-eyed people. Blind in one eye since age seven when another child hit him with a rock, Selwyn was especially keen to the trouble monoculars have in viewing objects on the blind side.
The Cros-Vision device, he believed, was not for every monocular but could help some in their driving and other activities taken for granted by those with normal sight. Selwyn, along with other volunteers, served as a guinea pig for the Cros-Vision glasses. With the help of engineers and optometrists, he came up with six variations on the glasses, which consist of a prism clipped to the outside of a pair of regular glasses.
A one-eyed person uses the glasses like a bifocal, looking toward the blind side through the prism, which conveys the image over the nose to the good eye. NIRE says that the glasses, depending on the type, widen the peripheral vision field from 10 to 50 degrees but do not restore stereoscopic sight.
"WORKING OUT FINE" The early glasses were heavy and ugly, but after several design changes they proved more cosmetic, cheaper to produce, and more effective, says Selwyn. Tests were made on the glasses for several years, and in 1976 the first pair was sold to Marie Matoushek of Scranton, Pennsylvania.
"They're doing very well, thank you," reported Miss Matoushek in December 1980. The 59-year-old woman works for a Scranton trucking firm and finds that the glasses, for which she paid $800, are helpful in her work. With the glasses, "you have more vision than a person with two eyes," said Miss Matoushek, who lost one of her eyes after it was poked with a coat hanger.
It is estimated that 10-15 million people in the United States are monocular. In April 1977 Parade magazine, a Sunday newspaper supplement, wrote up the Cros-Vision glasses. NIRE received what it describes as a flood of inquiries, to which it responded by sending out information on the device.
One of those inquiries came from Thomas Correll, a Pennsylvania truck driver who had recently lost the vision in his right eye. On May 6, 1977, Correll and his wife traveled to NIRE to be fitted with and trained in the use of a pair of Cros-Vision eyeglasses so that Correll could continue to work as a truck driver. For examinations, training, and the glasses themselves he paid $1,073—more than Miss Matoushek because the glasses were of the quality needed by a truck driver.
"The glasses are working out fine," wrote Mrs. Shirley Correll on June 1, but she was distressed that she had been unable to find anyone to insure them against theft or loss. "If you cannot insure them for us—or tell us where we can obtain insurance for them—I will have to insist upon returning them," she concluded the letter. When Selwyn replied to the Corrells, he pointed out that it would be against the law for NIRE to sell insurance and advised them to contact the insurance commissioner of their state for information about a suitable insurer.
The woman and Selwyn haggled by mail about what could be done, and finally Mrs. Correll wrote 17 letters of complaint to such agencies as the Food and Drug Administration and the Better Business Bureau in NIRE's region. "There was nothing in the contractual agreement to indicate NIRE agreed that they could or would" provide insurance, says Leo Powelstock, the regional BBB's executive director, who investigated Mrs. Correll's complaint. "I didn't view it as a valid complaint and I still don't."
ON THE CARPET On August 9, 1977, the New Jersey State Board of Medical Examiners wrote a letter to Selwyn requiring his appearance on August 31 at the board's office in Newark. "Information is in the possession of the Board that appears to be advertising," said the letter, and members wanted to discuss the way in which NIRE was "dispensing certain eye equipment." Selwyn was told that his appearance could result in legal proceedings and was advised that he could bring along an attorney.
Of the boards that regulate and license professionals in New Jersey, the most active and feared is the Board of Medical Examiners, which oversees 10 medical professions. At the time, any material deemed by the board to be advertising by medical professionals was forbidden.
Neither Selwyn nor NIRE has ever been licensed by the Medical Board. NIRE does have licensed optometrists working with its vision-disabled clients, a physician to handle health and safety matters, and a psychiatrist to advise the rest of the staff whether a client has mental problems that might affect rehabilitation training. But Selwyn himself, in addition to being the inventor/tinkerer, is NlRE's training director, whose function is to devise and implement methods of training in driving, writing, typewriting, mobility, sewing, painting, etc. As to NIRE itself, a June 28, 1976, letter from the New Jersey Department of Health had advised the institute that it did not require a state license in order to operate.
Selwyn believed that the board had no grounds for ordering his appearance. In response to its letter, Selwyn sent information about NIRE and told the board that it had no brochure for mail-order sales but, upon request, provided sheets that listed the various devices available to the handicapped. He requested an informal meeting rather than an appearance to answer unspecified charges—an appearance that could be followed by administrative fines. The board decided to postpone its proceeding, but what followed bode far worse for an organization that had little dealings with consumer authorities.
On November 2, 1977, Bertram P. Goltz, Jr., a deputy attorney general of New Jersey, issued a subpoena against Selwyn. He was to appear in Goltz's office on November 17 to testify on the sale of Cros-Vision glasses to the public. The state was acting on Mrs. Correll's complaint.
Ironically, Goltz is handicapped. He has cerebral palsy and walks with crutches. One of NIRE's inventions is a speech clarifier for people with cerebral palsy.
The subpoena notified Selwyn that he would have to testify on the design of the Cros-Vision glasses, their intended use, how they were manufactured, the source and cost of materials used, their advertisement to the public, the names and addresses of all NIRE people who had worked with purchasers or potential purchasers of the glasses, and the names and addresses of and amounts paid by all purchasers. But most of this information, maintained Selwyn, constituted trade secrets or an invasion of clients' privacy. NIRE retained an attorney to file suit to quash the subpoena.
Thus began two and a half years of negotiations in which Selwyn frequently requested meetings with the medical examiners to clear the air and asked that consumer officials advise NIRE how to comply with the law. The requests were denied. The matter was now in the hands of the attorney general's office, replied the Medical Board. And as far as the attorney general was concerned, NIRE could satisfy the law by coming up with the subpoenaed information on Cros-Vision glasses.
SHADY OR SHABBY Curious events, made part of the court record through affidavits, had started happening.
• A two-paragraph blurb on the Cros-Vision glasses was supposed to appear in Reader's Digest in September 1977. But the article had been pulled when reporter-researcher Christopher Kirby contacted the New York Association for the Blind (the Lighthouse), which Selwyn calls NIRE's "largest and most bitter" competitor. In a sworn statement, Selwyn has said that Lighthouse staff members warned him several years before that there were enough low-vision clinics in the area and they didn't want another one started.
Kirby, no longer with the magazine, has confirmed that the item was deleted after a July 1977 conversation with Clare Hood, codirector of the Lighthouse low-vision service. "She said NIRE was under investigation and they couldn't endorse the glasses because they were still examining them," Kirby said. This conversation occurred even before the Board of Medical Examiners had summoned NIRE.
• Selwyn received a call from a McLean, Virginia, man who said his ophthalmologist had just told him to cancel his order for one of NIRE's vision devices because he (the ophthalmologist) had been told by a Lighthouse ophthalmologist that NIRE would be getting a subpoena. The attorney general's subpoena arrived a few days later.
• On November 20, 1977, 18 days after the subpoena had been issued, Selwyn spoke before the Chicago chapter of the Retinitis Pigmentosa Foundation. He reports that an ophthalmologist announced to the group that they should not deal with NIRE because it was under investigation and would soon be charged with fraud by the New Jersey attorney general.
• Then, in early 1978 an odd thing happened to Stanley Jacubek, former sales manager of Maddak, Inc., who was attempting to get a short information spot on New Jersey's public television station concerning an isometric exercise device for arthritic people. Jacubek says the television people were initially interested. In the meantime, he had telephoned Selwyn to arrange to visit the institute and show some of his company's devices for the handicapped.
Two days before his appointment with Selwyn, however, Jacubek called back and told him he wished he'd never contacted him. He hadn't had any dealings with NIRE before, but the television people asked him if he'd ever been involved with the organization. When he told them he'd made an appointment to show his wares at NIRE, they decided against putting his exercise device on television. Had Selwyn told anyone of their appointment? Jacubek asked. Selwyn said he hadn't. Then NlRE's telephones might be tapped, suggested Jacubek.
CONFLICTING TESTIMONY By this time, NIRE was receiving inquiries about the investigation from vision professionals across the United States who said they had heard that NIRE was going to be shut down. New Jersey state agencies had been told by Deputy Attorney General Goltz that anyone inquiring about NIRE should be referred to him.
J. Douglas McNair, a California cardiologist who couldn't read, write, or drive a car because of an eye injury, had heard about NlRE's work in late 1977. Because of the expense of traveling to New Jersey with his wife, he decided to make an "extensive investigation to determine as much as possible about NIRE." Although he received "excellent reports" from medical sources, he says, "very negative reports" came from New Jersey Governor Brendan Byrne's office and from the New Jersey Commission for the Blind.
(McNair persisted. He contacted NIRE again and asked for client reports on its devices, NIRE refused to send him copies of the testimonials in its files, apparently on the conviction that one person's case may not be relevant to another's. McNair says he finally was put in touch with a doctor who gave him "a good scientific and factual account," so in January 1978 he went to NIRE and trained with and purchased field-expanding glasses that he testifies have enabled him to walk safely, to drive, to resume his full practice of cardiology, and even "to return to my hobby of playing golf.")
After NIRE filed a suit to block the subpoena, both sides gathered expert witnesses and secured affidavits and depositions on the worth of the Cros-Vision glasses. For example:
• Dr. Robert Rosenberg, optometrist, New York City: "This device has at most very limited therapeutic value and would be used to advantage by probably only a small number of monocular patients under very limited circumstances." (Rosenberg is a consultant to the Lighthouse low-vision program.)
• Dr. Seymour Fischer, optometrist, Belleville, New Jersey: "I honestly feel that most monocular persons can be helped by one or another of these devices.…I am currently using one of the 'cros-vision' glasses. With this particular one the vision is still good even at night." (Fischer is a monocular and has no association with NIRE.)
At the request of the state attorney general's office, Rosenberg and Dr. William S. Lesko, an ophthalmologist, examined the glasses that had been sold to Correll. Later, Dr. Lin Moore, an optometrist and ocularist from Muskogee, Oklahoma, would testify: "Such glasses cannot be evaluated by any expert who might receive [them] in a box, and they can only be evaluated on an actual patient who has received the full evaluation, trial fitting and training from the NIRE staff." (Moore is not a staff member nor an affiliate of NIRE but had once visited the organization and had been given information on its research.)
In March 1978 the Superior Court of New Jersey, while denying NlRE's attempt to block the attorney general's subpoena, ordered that it be modified so as not to include confidential data. Selwyn still refused to divulge information about the glasses' design, arguing that some unscrupulous people might take to selling the glasses by mail. He remains adamant about the need for training on how to use any of the Cros-Vision glasses except the least-complicated version, which NIRE recommends only for senile or retarded individuals.
NIRE UNDER FIRE As NIRE fought to stay alive, Goltz, Selwyn, and NIRE's attorney conferred about a settlement. NIRE continued to see clients, and state officials were bombarded with letters from clients complaining about the probe. That probe had expanded into the entire NIRE operation.
In January 1979 Goltz proposed a consent decree. If NIRE and Selwyn agreed to its provisions, the attorney general's office would close the investigation; if not, charges might be filed against them.
The decree called for monetary reimbursement to five complaining consumers: Thomas Correll; two handicapped Oklahoma men who had between them expended $520 at NIRE; a Louisiana woman, Marie Daniels, who had paid $2,575 for modification of a car for her polio-crippled daughter; and a Massachusetts client who claimed that she had not received the services for which she had paid $300.
NIRE maintained that the dispute with Correll was over insurance and not over its product. It objected to the inclusion of the two Oklahoma men because they had admitted to New Jersey officials that they rifled Selwyn's desk at NIRE and had insinuated that Selwyn's wife provides sex therapy for the clients. Louisiana court papers reveal that the modified car had been taken from that state without authorization and didn't have valid insurance, which NIRE only discovered after it had worked on the car; a Louisiana state agency had reimbursed NIRE for the services rendered, but NIRE was holding on to Mrs. Daniels's prepayment—in order, it said, to protect itself in the event it was held liable for any accidents attributed to the modifications. As to the Massachusetts woman, Selwyn maintained that he had offered her a refund while she was at NIRE but that she had refused.
In addition to the relief sought for these consumers, the consent decree stipulated that NIRE would have "all aspects of the advertisement and sale" of its vision devices "supervised and directed" by a licensed optometrist or physician and that a licensed vision professional be involved with NIRE clients from beginning to end in the process of selecting a device.
But that was not sufficient. The state also wanted NIRE to agree that its published material would not make certain claims about Cros-Vision glasses, nor compare NIRE products to others', nor imply "dramatic benefits" by using "exclamation points, capitalization, underscoring," etc.
UNORTHODOX PRACTICES Then there were some provisions addressed to judgmental mistakes on Selwyn's part. He signed many letters "Donald Selwyn, E.E., Ph.D." Although he has worked as an engineer in private business, he has no formal engineering degree; and his doctorate is from Dallas State College, which is now defunct and, New Jersey authorities claim after talking to Texas authorities, was a diploma mill. The degree, in any case, is an honorary one.
These notations left Selwyn open to charges that he was impersonating a doctor or an engineer. Other NIRE directors say Selwyn was letting vanity get in the way of his work by referring to his honorary degree. Selwyn says he simply wanted to let people know he was not a medical doctor and so included the "E.E. Ph.D." after his name. But state officials have made hay of the notation throughout their investigation.
They have also come down hard on Selwyn for insisting that clients agree to follow through with a NIRE program, not to speak ill of NIRE or be discouraged if a device is not helpful, and not to listen to any others' disparaging remarks about NIRE or its work. To an outside observer such requirements may indeed seem strikingly overreaching, but Selwyn says he devised these tactics as a psychological ploy to keep the disabled from quitting or becoming discouraged.
Dr. Melvin P. Judkins, a radiology professor at Loma Linda University in California and a NIRE client because of a permanent vision loss to the right in both eyes, agrees. He wrote to the Medical Board in 1979 to protest that NlRE's Applicant Service Agreement, while "very unusual," was neither economically binding nor exploitive. "It was my impression that it was not a contract but was a list of conditions designed to increase the likelihood of successful completion of a program at NIRE, used as a screening device to determine an applicant's willingness to bend all efforts to succeed," wrote Dr. Judkins.
NIRE STANDS FIRM The 18-page consent decree was refused by NIRE in March. It was "not only impossible but disappointing," wrote NlRE's attorney to Deputy Attorney General Goltz. Although the investigation had begun because of a complaint about Cros-Vision glasses—on the worth of which both sides had produced expert witnesses—it now seemed that the state was "trying to save face by proposing a settlement which covers matters which are being raised for the first time and matters which are not proper objects of the state's regulatory powers." (In this area, Selwyn objects especially bitterly to the provision about the exact wording and punctuation of printed matter.)
"The result of all this," continued the response, "has been the virtual destruction of NIRE and the emotional and physical drain on its director. Donations have stopped and so has the work for those handicapped persons who have no place else to go. Unfortunately they do not make a very large constituency."
NIRE's income went from $224,000 in 1978 to $96,000 in 1979; by 1980 it would be down to $46,000. In 1979 Selwyn gave up his $20,000 a year NIRE salary and became a volunteer. Client lists dropped from 300 in 1978 to 125 last year.
Negotiations continued, and at one point Goltz offered to close all the consumer complaints save Mrs. Daniels's if NIRE signed a consent order detailing the restrictions on its activities. But NlRE's board of directors would not accept. Signing the order would imply wrongdoing by NIRE, and the agency would lose its due process rights, says Selwyn.
At some point Bertram Goltz signed a "To Whom It May Concern" memo on State of New Jersey letterhead advising that the attorney general had decided to conclude the investigation of NIRE. On September 26, 1979, Harold Russell, chairman of the President's Committee on Employment of the Handicapped, wrote a delighted letter to Governor Byrne expressing relief that NIRE could now get on with the business of helping the handicapped. (See p. 45.) But the memo—curiously, undated—was part of an agreement to settle which Selwyn says the attorney general's office reneged on.
There followed another settlement offer—the state's last—in early 1980. This was again refused by NIRE's board. All was quiet until July 14, when Selwyn and his charity were hit with the civil suit charging fraud, misrepresentation, and unconscionable business practices.
Relief was no longer sought for the two Oklahoma men, but to the earlier gripes from Correll, Mrs. Daniels, and the woman who said she didn't get her $300 worth of evaluation there was added a complaint made on behalf of an elderly woman who had paid $715 for a modified hearing device.
NIRE dispenses hearing aids by medical referral under direct medical supervision, providing aids free to indigents. The organization also does research on special aids for people with unusual hearing losses.
That was the case with Martha Rhinesmith, whose daughter complained she had been bilked. Mrs. Rhinesmith was sent to NIRE by a doctor because she was unable to use an ordinary hearing aid. Selwyn modified a standard hearing aid to provide hearing help in both ears.
When it malfunctioned, the woman took it first to NIRE and then, when it malfunctioned again, to a hearing aid dealer. Unfamiliar with the device, he told the woman it didn't work. The result was a complaint to the Consumer Affairs Division of the attorney general's office.
A few months later the state amended the suit to add another complaint, this one from Patricia Conklin of Franklin Lakes, New Jersey, who said she was duped in 1977 when she paid $1,600 for training, evaluation, and telescopic glasses that were supposed to help her get a driver's license.
NIRE paid a manufacturer $681.88 for the glasses, which consist of two telescopes attached to a pair of regular glasses. It is used like a bifocal for a poorly sighted person to read road signs and other detail. NIRE had to pay for them in advance and said the glasses could not be used by anyone else.
The suit says NIRE took advantage of the woman by charging her $1,350 for the glasses and another $250 for evaluation. Mrs. Conklin said later the glasses did not help her get a driver's license.
But the suit fails to mention the price other low-vision clinics charge for such glasses. According to the Medical Tribune, the telescopic glasses can cost from $2,000 to $2,500 at some clinics, but half that if obtained from a nonprofit organization for the blind.
Then there is the state's claim that "it is and has been the policy of the New Jersey State Division of Motor Vehicles not to license drivers who wear telescopic-type eyeglasses." The state is charging that Selwyn knew this and lied to Mrs. Conklin.
Not true, says Ralph Peterson, former chief of the state's DMV enforcement bureau. There is now a moratorium on licensing drivers who wear the telescopic device, but between 1975 and 1979, 12 such drivers were licensed in New Jersey. A search of DMV records confirmed that figure. The woman who complained to consumer officials was a NIRE client two years before the moratorium began. "The driving records of these individuals are excellent, really," Peterson, now with the state police, said in a January 1981 phone interview.
WHY NIRE? After nearly four years of investigation and claims, the state's action encompasses five consumer beefs—about an organization that estimates it has served 10,000 clients. "There's a pattern of violation that goes beyond the individual complaints," counters Thomas Germine, a deputy attorney general.
We're not out to destroy NIRE," says Goltz, the deputy attorney general who has headed up the case. "We just want Selwyn to straighten up and fly right. If he has a good service to help handicapped people, God love him."
But "they're using an elephant gun instead of a fly swatter on NIRE, little NIRE," says Dr. Robert Fondiller, a New York professional engineer who has been associated with the institute since 1970. Fondiller and the other NIRE backers wonder why so much time, energy, and money have been spent by the state of New Jersey on the matter. Sinister theories begin to seep into the conversation: a decision by Governor Byrne and his attorney general appointee to serve favored groups by getting NIRE out of the way. "It shows the extent a state agency will use government to serve private interest groups," Fondiller says.
And who are the favored groups? First of all, the New York Association for the Blind—the Lighthouse. The state's expert witnesses scheduled to testify at the trial say the Cros-Vision glasses—which started the whole affair—do not provide the expanded vision NIRE says they do and aren't worth the price. Two of those experts, Dr. Eleanor Faye and Dr. Robert Rosenberg, are associated with the Lighthouse.
When contacted in January 1981, Dr. Faye declined to comment on the Cros-Vision device, saying that she was not familiar with the actual glasses and had only read about them in newspaper articles and seen Xerox copies of their pictures. Yet she is identified in court papers as one of those who performed an evaluation of the glasses for the state in 1977. Just five days after writing the letter in which she claimed no familiarity with the glasses, she provided a report to be used in Selwyn's and NlRE's trial.
Adam Levin, chief of the Consumer Affairs Division, says any suspicions about collusion between the state and NlRE's competitors are examples of "defendant paranoia." But why, wonders Selwyn, did the Lighthouse know of a subpoena before NIRE had received it?
And as Robert Gunderson, former public relations director of the New York Institute for the Education of the Blind, stated in a 1978 affidavit: "It is a universal problem for agencies serving the blind to be in bitter competition.…Over the years I have had many problems with the Lighthouse. On numerous occasions where I have gone places to present a talk people from the Lighthouse or other agencies serving the blind would be planted in the audience to heckle me."
PROFESSIONALISM And there may be broader professional jealousies involved, says Dr. Arthur Zampella, NlRE's medical director: a feud between ophthalmologists—medical doctors who perform eye surgery, prescribe medicine, and examine eyes—and optometrists—who do eye refractions, train eyes for better sight, and make and sell glasses. Selwyn believes several New Jersey ophthalmologists are jealous of NlRE's work and upset that the organization uses optometrists, because of their technical skills, rather than eye surgeons. He claims some ophthalmologists fear they will lose patients who are fitted with low-vision devices by optometrists. From 50 to 60 percent of NlRE's work is now vision-related (partly, explains Selwyn, because it has become so expensive, because of the heavy equipment required, for severely handicapped people to achieve independence).
Another of the state's expert witnesses, ophthalmologist Gerald Fonda, is leading a crusade to ban the licensing of poorly sighted drivers who wear telescopic glasses, one of the items sold by NIRE and now included in the state's suit. Yet in a 1978 Medical World News article, Dr. Fonda, who runs a low-vision clinic in Livingston, New Jersey, said he had prescribed the bioptic telescopes even though he thinks they are a scam to fool motor vehicle inspectors. That the state has not brought consumer fraud charges against Fonda smacks of a double standard, declares Selwyn.
Levin, Consumer Affairs czar, and the deputy attorneys general objected strongly when confronted with the theory that individual ophthalmologists instigated the investigation. They acted on the basis of consumer complaints, they say.
But Charles Janousek, executive secretary of the New Jersey Board of Medical Examiners, revealed that ophthalmologists "voiced concerns" about NIRE to his board, which is part of the attorney general's office, in 1977. "The ophthalmologists wanted to know if they [NIRE and Selwyn] were practicing medicine," Janousek said in January. He wouldn't name names and insisted that the complaint files of the board are closed to the public under state law.
Perhaps not surprisingly, then, the state's suit levels numerous charges against Selwyn for the unlicensed practice of optometry. In one case the state even resorts to charging Selwyn with having "altered and intruded into the relationship between Mr. Correll as patient [sic] and the licensed optometrist" and maintains that this "constitutes the unlicensed practice of optometry."
Does Selwyn examine clients' eyes? In the course of training them in the use of NIRE's vision aids, admits Selwyn, he does administer a vision test comparable to that required in order to obtain a driver's license, so that he can legally take them on the road for driver training. And he works with clients in their sampling, for example, of the various types of Cros-Vision glasses. Some of this work, of course, involves determination with the clients of how well they can see with the available alternatives. If there is an undercurrent of professional jealousy in the state's action against him, perhaps these activities can be construed as "the practice of optometry."
But the state also makes much in its suit of Selwyn's personal manner. His dealings with clients are characterized "by verbal abuse, personal insults and authoritarianism," charges the suit.
There's no doubt that he has an abrasive attitude toward some, but not all, the people he deals with. Put bluntly, "He's got no personality whatsoever as far as being a nice guy," says Franklin Whitescarver, a NIRE board member. "But he's helping humanity."
Selwyn is the first to admit that he becomes impatient with handicapped individuals who seem unwilling to make the effort needed to overcome their disabilities and gain as much independence as possible. The state sees it differently. Selwyn's manner, maintains the suit, is "calculated to undermine the self-esteem of handicapped clients, to exploit their fears and insecurities, and thereby to reduce said clients to a condition of abject dependence upon defendants Selwyn and NIRE."
In April 1979, having heard of NlRE's difficulties, the father of one client wrote to the attorney general: "Although a larger organization with a more highly paid and polished staff arguably might have done more in terms of a surface public affairs approach to operations, I would never fault the no frills, no nonsense approach of NIRE and its staff who were able to provide help where no one else could." His son's vision had been impaired in a severe auto accident, explained the man, but NIRE "provided assistance and encouragement" that "improved his personal attitude and abilities at a most important time in his adolescent life."
AGAIN, WHY NIRE? A Reporter's Epilogue: In the end, New Jersey versus NIRE may come down to the sadly familiar case of a maverick inventor who doesn't fit into the regulators' pigeon holes. And so he is pursued, whenever it is politically advantageous, until nailed to the wall.
"Just how much of New Jersey's consumer activism is caused by politics?" I asked Adam Levin, the political appointee who heads the attorney general's Division of Consumer Affairs.
"This agency has life and death power over people," he said. "We don't play favorites. The most important thing this agency has is its credibility."
Levin boasted that the consumer office under him has stood in the forefront of competition, as advocates of advertising for professionals (ironically), and of generic drug substitution. "The ones who are complaining about all this regulation are the first people to run to the government for protection," he said.
Selwyn, in fact, has several times written to the Board of Medical Examiners to complain about Dr. Fonda, one of the expert witnesses against NIRE. At issue was the Medical World News article in which Fonda said he prescribed telescopic glasses for low-vision drivers even though he thought they were a scam. Fonda did some ophthalmological work for NIRE in the past, but for several years he and Selwyn have been feuding over the telescopic lenses.
I asked Adam Levin whether he's interested in running for political office in the future. (While attending law school in Michigan in 1974 he had run for the US House of Representatives.) "Absolutely," the gregarious consumer advocate said candidly. "Let's put it this way. No one who's served in consumer affairs since Millicent Fenwick has ended their career in government with the end of their tenure in this office.…I would not object to running again for Congress."
As the balding 31-year-old consumer chief discussed New Jersey's regulatory activism with me, an aide brought him two newspaper columns and two news releases that would go forth under the byline of Adam Levin. Levin looked them over before they were released to New Jersey newspapers. It was pretty clear that he hadn't written them, but he did approve of the contents.
Driving to work on a Monday morning, commuters tuned to a Livingston, New Jersey, radio station hear none other than Adam Levin—live on the consumer "Hot Line"—giving constituents advice on how to fight problems with business. He also makes about 200 speaking engagements a year and sends public service announcements to Philadelphia and New York radio stations.
Our conversation was interrupted by a phone call from a New Jersey state senator who was working on some consumer legislation. After several minutes of explaining how he thought the bill could be modified, Levin bounced back to the conference table. "That's what you call wheeling and dealing," he said with glee.
Meanwhile, the bioptic telescope Mrs. Conklin bought from NIRE is locked in a closet down the hall from Goltz's office. Along with that device are the Cros-Vision glasses sold to Correll. This controversial paraphernalia won't appear in public at least until August when the state of New Jersey brings its case against NIRE to trial in Passaic County.
Back at the Butler office of NIRE, Selwyn and the other volunteers are still seeing clients. For several months last year, Selwyn worked as an overnight guard at a state prison camp and went to the NIRE office during the day, but he says the strain became too much and he quit the extra job. His wife is a school crossing guard in Pomptom Lakes, and the couple, who have a teen-aged daughter at home and two other children, are eking out a living through her paycheck, part-time work and, oddly enough, public assistance.
Creditors are hounding NIRE constantly, the attorney has received crumbs as payment for his work, and the institute survives on a day-to-day basis. Selwyn estimates $200,000 will be the final bill for legal defense and eventual countersuits.
But he and the others believe NIRE is worth saving and vow to fight the government to the end. Selwyn says he will go to jail before design data and other information about the glasses are turned over to the attorney general.
Some avoid associating with him, while others see his actions as an exercise in futility. "When you're fighting a giant, you don't go against him toe-to-toe," a New Jersey businessman told me. "And that's what Selwyn is trying to do."
"He has something there they want," said Len Cohen, a one-armed man who received rehabilitation training at NIRE and now serves as the charity's consumer advocate while running his own business. "He's a genius, and it's too bad they're trying to smother him."
Roland Kidwell, Jr., is a staff writer with the Roanoke Times & World News in Virginia. This article is a project of the Reason Foundation's Investigative Journalism Fund.
This article originally appeared in print under the headline "Handicapping an Innovator".