Monograph B1 ~ ACA ALERT ~ REQUIEM FOR THE DEMISE OF THE AMERICAN CHIROPRACTIC ASSOCIATION
 
   
Monograph B1

Requiem for the Demise
of the American Chiropractic Association

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Copyright 1994,1999. R. C. Schafer, DC

May 1, 1999

To whom it might concern:

For over 30 years, the Journal of the ACA listed headquarters staff. This policy was discontinued last year because presently there is not a single DC on the professional staff. The interests of DC members are now under the complete control of lay people. These people shuffle to work each day, do what they are told by the non-DC administrator, and collect their high salaries without any idea of what is important or not to the professional membership.

In previous years, there were about four DCs on headquarter's staff. Each headed a vital department. Each loved our profession. Each supervised lay employees who offered customary support. These staff DCs had a specific "Executive Board liaison" to which he or she reported frequently. This liaison setup was a method wherein professional staff could alert the Governors if the executive vice-president or others were about to act contrary to the best interest of the membership. This check has been dissolved.

Only one person, with no training in chiropractic, currently governs the fate of chiropractic in Washington, DC, and the counsel he receives is highly suspect. Thus, the ACA's Executive Board of Governors and delegates are subject to arbitrarily filtered information.

The Executive Board of Governors is deluded if they think they have any meaningful control over ACA headquarters operation via the telephone. I know. I served as a staff member for 6 years. Headquarter's staff now consider elected officers "out of sight, out of mind." Thus ACA members are and will be continually inundated with quantities of promises and hope that their concerns will be met. But the bottom line will be failure, excuses, projected blame on others, unforeseen roadblocks, and continual demands for higher dues and donations to fund unsuccessful projects. This is the price of absentee leadership, deceived or not.

The plan to destroy the ACA's influence was initiated with the appointment of J. Ray Morgan and Thomas R. Daly (legal counsel) to headquarters staff in the early 1980s. Although Morgan has retired with an envious pension, his and Daly's insidious scheme ripened when Dr. Edward Maurer became chairman of the ACA Executive Board of Governors a few years ago.

The following documents reflect the decline of the quality of ACA leadership. While this spotlight essentially pertains to book development, the malignant disease process has now spread throughout the staff and within every endeavor of the American Chiropractic Association's home office.

For many years, rumor within our nation's capital has attributed the behavior of Morgan and Daly, and their influence on others, to be financed by the American Medical Association. While this has never been proved, the fruits of their actions are highly suspicious as shown by example below.

The record is there for anyone to view. Although multitimillions of dollars have been drained from the chiropractic profession in the form of dues and donations, not one significant legislated goal has been achieved during the last 20 years. What the AMA has not been able to destroy, it has certainly been able to shackle. ACA headquarters' loudly proclaimed one step forward with hushed two steps backward is certainly not progress. The time to forgo continuous unrequited hope is here.

Several colleagues have requested a copy of the material I sent to each ACA Delegate just prior to the 1993 convention. This document, which follows, has been misplaced for several years. I recently found disks buried in my archives, likely placed there because not one delegate had the courage to reply. The result has been the loss of hundreds of thousands of dollars to the ACA in quality book sales, which could be well used to support the goals of the membership.

When a few delegates questioned Board members about these accusations, they were told that it "would be thoroughly investigated." At the next convention, delegates were informed that the indictments were "unfounded." However, not one challenge was made of the validity of the 22 irrefutable exhibits shown here. Another incident also occurred during this period that reflects ACA headquarters' attitude. Normally, an author is shipped a minimum of 20 copies of books published for reviewers. I have never received a single copy of my last two books published by the ACA. I was told, "if you want a copy, buy it." Later, Daly saw to it that printing of my last two completed (peer reviewed and approved) manuscripts was abruptly deserted.

My motivation to offer this information is no longer personal. I have terminal cancer, and my days here are limited. It is unlikely I will enjoy another Christmas. It is my hope that a few with courage will offer the leadership to completely reorganize the American Chiropractic Association into a fully democratic organization from which the aspirations of my beloved profession may manifest for the betterment of this great nation.

The enclosed information is copyrighted material. If you wish to copy it to others, please send me an e-mail request at 7RCSX@msn.com stating your objectives. However, if you wish, feel free to refer others to examine this information via:

http://www.chiro.org/rc_schafer/Monograph_B1.shtml.

Sincerely,

R C Schafer

R. C. Schafer, DC, FICC

 

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July 12, 1993

Memo to: ACA State Delegates: Elected Representatives of the Membership

From: R. C. Schafer, DC, FICC

I'm nearing retirement and can look back at a rewarding career. It has included authoring a dozen texts for the ACA and being the first DC to be published by a major medical publisher --opening the door for many others because this book immediately became a "best seller" that quickly earned a six-figure profit for the publisher. I'm proud that I have developed seven "best sellers" in the field, five of which have been for the ACA. It was also my honor to be listed as the first DC author in the internationally renown Medical Books in Print.

As of March of this year, my books sponsored by the ACA alone have returned a gross profit over costs of $781,718.00. This increases to $1,378,508.00 when the inventory as of March '93 is properly marketed. The ACA has printed 44,165 of my books of which about 18% remained in stock as of March of this year. You will find this a remarkable achievement as you read on.

I have been continually grieved of the second-hand citizenship role our profession continues to play. For example, most clinicians will agree that there are times when a patient may need hospitalized care under the supervision of the admitting DC with consultation available with staff specialists. Rather than having members beg for staff privileges, the ACA should have long ago established a Hospital Accreditation Committee and asked every hospital in the nation to verify if they could meet chiropractic's high standards of patient care. Certification of competence would be a prerequisite before any hospital should have the privilege of having an ACA member serve in a staff position. We should be an association of confident assertive professionals, not whiners begging for a piece of the pie.

This failure, as well as a multitude of others, can be attributed to the poor quality of executive and legal leadership at ACA headquarters. Enclosed for your review is the first draft of a treatise in development that will review the caliber of leadership at the ACA's national headquarters from 1973--1993. It will show that a history of costly ineptness has greatly hindered the growth of the profession.

 My correspondence files concerning the ACA took root in 1973 and my telephone log in 1980. Extensive research will thus be required before a final draft can be completed. Despite being incomplete at this stage, certain matters should be brought to your attention at this rudimentary stage. Only with adequate knowledge can you honestly represent the members of your state.

The object here is to point out long-term unquestionable gross incompetence at ACA headquarters by Mr. Morgan and Esquire Daly. I find no direct criticism with your Board of Governors except in failure to serve as a watchdog over headquarters' indolence and subterfuge. The governors have been misinformed and deceived. Their knowledge of operations at headquarters is what J. Ray Morgan tells them.

I have no criticism but many compliments of the work of the three DCs serving you admirably at headquarters. These doctors love chiropractic as you and I do, but they cannot speak forthrightly to defend your interests without jeopardizing their employment. My remarks are not directed to these dedicated professionals. They are solely targeted at the two non-DCs who write the music to which the staff at headquarters dance.

You will find in the enclosed exhibits evidence worthy of your careful study and action. You will soon arrive at the conclusion, as have I, that headquarters' lay leaders have:

1. Misappropriated your money

2. Failed to properly promote books authorized by the Board of Governors

3. Failed to timely register copyrights of books published by the ACA

4. Failed to abide by Board-approved terms of book R&D

5. Failed to obtain proper legal counsel to protect membership interests

6. Failed to safeguard ACA property and that entrusted by a member

7. Failed to properly administer duties and obligations as your employee.

 

Misappropriation of Funds

I have in at least two instances been sent in error a total of $2,864.00. When I called these to Mr. Morgan's ho-hum attention, I was not given the common courtesy of even a thank you by letter or telephone. It was distinctively clear that he couldn't care less. After all, it was not his money that would be wasted if I had not returned it. It was membership money, not his. See Exhibits A-1 and Exhibits A-2.

Keep in mind that I am only one person out of likely many hundreds of which headquarters must contract. Inasmuch as it is improbable I am the sole person to have received substantial funds that were not rightfully owed, it can be projected that hundreds of thousands of dollars may have been misappropriated through years of careless management.



EXHIBIT A-1

June 5, 1987

J. Ray Morgan
Deputy Executive Vice-president
AMERICAN CHIROPRACTIC ASSOCIATION
1701 Clarendon Blvd.
Arlington, Virginia 22209

Dear Ray:

It has just come to my attention that the last two checks we received from the ACA were in error: one too much, one short. The check we received in May was in the amount of $3889, when it should have been $3111 (see letter 4/16/87 enclosed). The check we received this month was also in the amount of $3889, when it should have been $3949 (see letter 5/11/87 enclosed).

According to my calculation, ACA has overpaid their account in the amount of $718 to date. My check is enclosed for this amount. 

Best regards,

R. C. Schafer, DC

 

 

EXHIBIT A-2

August 8, 1992

J. Ray Morgan
Executive Vice-president
American Chiropractic Association
1701 Clarendon Blvd.
Arlington, VA 22209

Dear Ray:

I mentioned a few months ago that the checks I had been receiving from headquarters for the text on rehabilitation were in error and that I'd reconcile the difference at the end of the project.

The proposal of 5/26/91 quoted ACAP R&D costs at $40,734 for the posttraumatic rehabilitation project. However, we received 10 checks (October 1991 -- July 1992) of $4,288 for a total of $42,880. This leaves an overpayment credit of $2,146.

Sincerely,

Dick

$2,146 were returned to the ACA by check. No thanks received.




Failure to Properly Promote Books Authorized by the Board of Governors

The record shows I have knowledge of how to develop a book and market it. I had over a dozen books published before I joined the staff of the ACA in 1973. One book was the first marketing manual for the U.S. Postal Services. My proposal was accepted over that of the Educational Division of the giant Xerox Corporation.

Mr. Morgan and your Board of Governors are not interested in how I administered a highly successful book marketing program. Refer to
Exhibit B, a memo received from the ACA's bookkeeper in April 1979. Note that 1,434 copies of the second edition of the ACA's Basic Chiropractic Procedural Manual were sold in 11 months. In the previous few years, I had marketed on a part-time basis 5,500 copies of the first edition. Also note that as many as 1,036 copies of the first edition of the ACA Basic Chiropractic Paraprofessional Manual were sold in 5-1/2 months. That's my record as the member of the ACA staff responsible for book sales during this period. Mr. Morgan is not interested in how I did it. My methodology is in ACA files, files to which he has sole control.

The ACA enjoyed a gross profit over costs of $365,556 on just editions 1--3 of the "Procedural Manual" and the first edition of the "Paraprofessional Manual." Not included here are profits of the 4th edition or the new 5th edition of the "Procedural Manual" and the 2nd edition of the "Paraprofessional Manual" of which a number of the recent edition remains in inventory. ACA marketing strategy of the late 1970s shows what can be done when book marketing is supervised by someone who cares. Since 1974 (19 years), I have never received a check from the ACA that had to come from membership dues. Each has come from a small share of net profits I had personally brought to the association.

Profits from these two books alone provided enough capital to R&D at least ten other profit-producing books without taking a dime from dues revenues. However, it is currently rumored that the ACA is now almost broke and cannot now afford the development of my books. Why? Is it because Mr. Morgan failed to safeguard profit-producing accounts in a professional manner? Book projects should be self-supporting. Again, profits already earned are more than sufficient to support book development through the 1990s.

There are three common ways the ACA can market a book. The least effective is the use of space advertising. As this latter method has been the primary, yet rare, means of marketing books authorized by ACA's Board of Governors in the last 13-1/2 years, let us examine the record --keeping in mind that ACA marketing personnel have reported to Mr. Morgan, as Director of Administration, for 10 years before he was appointed executive VP.

Solely on the insistence of Dr. Sportelli, headquarters made some attempt since mid-1988 to bring several books published by the ACA to the attention of the field. The number of media announcements, however, can be counted on your fingers. In addition, keep in mind that space advertising is the poorest method the ACA has at its disposal to market books.

 

EXHIBIT B


Table 1 reveals that not a single mass media effort was made by Mr. Morgan in 8 years to inform the membership of ACA books. It does not take much intelligence to know that even the finest book ever written will not sell if people do not know it exists.

An investigation in mid-1988 of headquarters book marketing efforts revealed Mr. Morgan's sorry effort to market ACA books. See Table 1.

Table 1. Mr. Morgan's Administration Expertise of ACA Book Marketing



Year
Number of Space Ads in ACA Journal Concerning ACA Books Other Profitable Means Used to Market ACA Books
2nd half
of 1979

Zilch

Zilch
1980 Zilch Zilch
1981 Zilch Zilch
1982 Zilch Zilch
1983 Zilch Zilch
1984 Zilch Zilch
1985 Zilch Zilch
1986 Zilch Zilch
1987 Zilch Zilch
1st half
of 1988

Zilch

Zilch


Note: In a letter addressed to me from Dr. Maurer dated April 14, 1993, he refers to the above as "...the ACA marketing arm has been less then [sic, than] adequate, until just recently." Less than adequate? What an understatement. A syllogism is supposed to have a conclusion that is logically derived from the premise.



Mr. Morgan, apparently, could not grasp this simple fact when he falsely states: "Schafer's books have had a poor sales record the last 10 years." Think about this accusation made to and apparently believed by our misinformed Board of Governors, and then look again at Exhibit B and Table 1.

Failure to Properly Register Copyrights of Books Published by the ACA

A copy of a book must be included with an application of copyright registration and another sent to the Library of Congress if a publisher wishes the book to be considered for inclusion in the inventory of the Library of Congress. See
Exhibit C-1 No action was apparently taken on this or was the letter's receipt acknowledged.

In early 1985, I telephoned the Library of Congress to learn how many books they had on hand concerning chiropractic, especially those published by the ACA. I was told that none were available for public or governmental review or had been registered except those I had registered while serving as ACA's director of Public Affairs (1973--1979). I brought this to Mr. Morgan's unconcern and volunteered to prepare the applications necessary. Refer to Exhibit C-2 .


EXHIBIT C-1

November 29, 1983

J. Ray Morgan
Director of Administration
AMERICAN CHIROPRACTIC ASSOCIATION
1916 Wilson Blvd.
Arlington, VA 22201

Dear Ray:

When the Basic Chiropractic Procedural Manual, 4th edition and Developing a Chiropractic Practice are printed, please send the Library of Congress a copy of each. Postage-free mailing labels are enclosed for this purpose.

Please advise whether you wish your attorney to make the copyright applications for these books or if you wish me to do it as I did in the past. By the way, the above samples should not be confused with the copies necessary to process the copyright.

Best regards to you and yours,

R. C. Schafer, DC


Note: Telephone call months later to the Library of Congress determined that no action was taken even when postage-free labels had been enclosed.



EXHIBIT C-2

February 8. 1985

J. Ray Morgan
Director of Administration
AMERICAN CHIROPRACTIC ASSOCIATION
1916 Wilson Blvd.
Arlington, VA 22201

Dear Ray:

Enclosed are the two copyright applications you asked me to complete.

To each application, attach a $10 check made out to the U.S. Copyright Office, Library of Congress. Enclose two copies of the book being copyrighted, and have the package mailed to: United States Copyright Office Library of Congress Washington, DC 20559

Sincerely,

R. C. Schafer, DC


Note: Again, no action taken by Mr. Morgan.



We see again, all he had to do was attach a $10 check for each along with two samples. The paperwork detail had been completed. In early July 1987, a telephone call to the Library of Congress revealed that copyrights for ACA books had still not been registered since the late 1970s. I again brought this to Mr. Morgan's unconcern and volunteered to prepare four more registration applications. I again enclosed preaddressed postage-free labels. I was trying to make it as simple as I could. See
Exhibit C-3.

In February 1988, I sent a letter to the Library of Congress requesting a search of the recent books I had developed that were published by the ACA. See Exhibit C-4. A telephone response form the Office of the Register of Copyrights, Library of Congress, revealed again that absolutely no ACA titles had been registered except those I did in the 1970s. At this point, I was not going to further volunteer efforts that would just add to the delinquency of Mr. Morgan and Esquire Daly.


Failure to Abide by Board-Approved Terms of Book R&D Development

In each of my formal proposals to the ACA Board of Governors concerning the research and development of a book, I explain my methodology and define the terms of the agreement. The Board of Governors has the option of excepting these terms or not. The terms are that I will transfer publishing, sales, and distribution rights to the ACA upon publication.

Each of my proposals refers to a specific title and a specific edition. I have never negotiated the transfer of editorial rights, rights to future editions, or have I agreed to transfer publishing, sales, and distribution rights before publication. No knowledgeable author would allow something to be published under his or her name that has been altered by a stranger without the author's prior knowledge and approval.

I place proposals of manuscripts for bid, customarily granting the ACA first option. Mr. Morgan and Esquire Daly, however, apparently have little knowledge of copyright law as they have repeatedly advised staff, without my knowledge or consent, to clandestinely alter my manuscript. An informed membership would strongly question Morgan's and Daly's potentially litigious actions.

As a safeguard against illegitimate alterations, I was forced to register prepublication copyrights of submitted manuscripts so that the original submissions can be compared against their published form. It is disheartening when headquarters' chief executive of one's national professional association cannot be trusted.

For a few of many examples of headquarters' unnecessarily delaying the publication of manuscripts over the years, projects that were authorized by the Board of Governors under mutually acceptable terms, see Exhibit D-1, Exhibit D-2, Exhibit D-3, Exhibit D-4, and Exhibit D-5, Despite its income-producing potential, one strawman after another has been placed in the path of a book being processed smoothly and on schedule.



EXHIBIT C-3

July 16, 1987

J. Ray Morgan
Deputy Executive Vice-president
AMERICAN CHIROPRACTIC ASSOCIATION
1701 Clarendon Blvd.
Arlington, Virginia 22209

Dear Ray:

Enclosed are four copyright registration forms that I have completed. This should bring us up to date.

Filing of these forms will officially transfer ownership of the involved books that I have authored to the ACA, as well as grant the ACA standard copyright protection. If you remember, I had great difficulty in having Gerry understand when ACA's ownership of authored books takes place.

All you need do is to attach a check of $10 to "Register of Copyrights, Library of Congress," and enclose two copies of each book. Pre-addressed, postage-free labels are enclosed.

You may desire to copy these forms for your file until the official form is sent to you by the Copyright Office. When received, I suggest that all registered copyrights be stored in a secured location.

Sincerely,

R. C. Schafer, DC


Note: Again, no action taken by Mr. Morgan even with pre-addressed postage-free labels enclosed.


EXHIBIT C-4

February 23, 1988

Register of Copyrights
Copyright Office, Library of Congress
Washington, DC 20559

Dear Sir:

I recently had a fire in my office that destroyed copies of some old copyrights that I had filed. Is it possible to obtain copies of these registrations? The publications are:

Title: Basic Chiropractic Paraprofessional Manual
Subtitle: Practice Administration and Management
Author: R. C. Schafer, DC
Publisher: The American Chiropractic Association
Date: 1978

Title: Developing a Chiropractic Practice
Subtitle: An introduction to Tactical Chiropractic Economics
Author: R. C. Schafer, DC, FICC
Publisher: The American Chiropractic Association
Date: 1984

Title: Symptomatology and Differential Diagnosis
Subtitle: A Conspectus of Clinical Semeiographies
Author: R. C. Schafer, DC, FICC
Publisher: The American Chiropractic Association
Date: 1986

Title: Applied Physiotherapy
Subtitle: Practical Clinical Applications with Emphasis on the Management of Pain and Related Syndromes
Authors: Paul A. Jaskoviak, DC, FICC and R. C. Schafer, DC, FICC
Publisher: The American Chiropractic Association
Date: 1986

If there is a charge for this service, please advise by telephone and I can either give you a charge card number or send you a check for the amount.

Sincerely,

R. C. Schafer, DC, PhD

Note: A call from the Library of Congress again determined that the only book above registered was the Paraprofessional Manual, which I had processed in 1978.


EXHIBIT D-1

August 27, 1988

Dr. Ronald L. Harris
ACA Executive Vice-President
1701 Clarendon Blvd.
Arlington, Virginia 22209

Dear Dr. Harris:

This will acknowledge your letter of the 10th received today in which you request that I comment on Mr. Daly's attached recommendations to you in a letter dated July 29th of this year regarding the manuscript for the text: Basic Principles of Chiropractic: The Neuroscience Foundation of Clinical Practice.

I will number my reply below in accord with Mr. Daly's letter.

Chapter 6, Item 1. If you will read the three paragraphs under the subhead "The Subluxation Complex as a Disease Entity" (p 6.8), you will see that it is just a brief attempt to portray the opposing basic arguments on whether or not the subluxation complex can or cannot ever be considered a diagnosis. It states clearly that the clinical determination of a subluxation complex is generally held to be a finding and not a disease entity. For the sake of intellectual stimulation, this concept is contrasted with Stedman's Medical Dictionary of what constitutes a disease entity (ie, a possible diagnosis). No recommendation of a change in policy is suggested, implied, or inferred.

I have no objection to inserting a disclaimer at the end of this section. However, the disclaimer suggested by Mr. Daly has nothing to do with the subject matter of the section. Daly's disclaimer pertains to ACA's official disavowal of any doctrine that holds to a singular approach to the treatment of disease.

There is nothing in this section that implies that a subluxation complex should be considered as the sole cause of disease, just one possible cause of a disease process according to the criteria published in Stedman's Medical Dictionary. I suggest that someone replace the disclaimer suggested, targeting it to a more pertinent section of ACA's Indexed Synopsis of ACA Policies on Public Health and Related Matters (a publication that I originated and continued to edit during the 1970s).

Chapter 6, Item 2.

On review of his original recommendations, Mr. Daly NOW agrees that no change to the original manuscript is necessary.

 

Dr. Harris (2) 8/27/88

Chapter 6, Item 3.

I have no objections to inserting the disclaimer suggested by Mr. Dally at the end of the section that reports various unbiased investigations of several posture-analysis instruments. This disclaimer is almost identical to the disclaimer I inserted on the copyright page of the original manuscript. If Daly thinks it should be repeated here relative to the reporting of various investigations conducted at CCE-accredited colleges, that's OK with me, redundant that it may be. See attached revised p 6.29 and original p ii.

Chapter 7

On review of Dr. Kern's and Mr. Daly's original "recommendations," you now state in your letter of 8/10/88 that NO CHANGE to the original manuscript is necessary in Chapter 7.

Chapter 8

In his current letter, Mr. Daly suggests that some paragraphs within Chapter 8 should be deleted because Dr. Kern thought that they concerned a "controversial" subject. Inasmuch as chiropractic is a controversial subject among the health-care professions, such an objection is legally moot. In his letter to me dated December 11, 1987, Daly stated that his "bottom line recommendation was to delete everything from p 7.29 through p 9.29" (copy of letter attached). In perspective, his previous recommendation was to delete:

1. 27 pages from Chapter 7, along with their called out figures, tables, and references.

2. The entirety of Chapter 8, consisting of 44 pages of text, 23 figures, 11 tables, and 161 bibliographic citations.

3. 29 pages from Chapter 9, along with their called out figures, tables, and references. He has now amended his recommendation from deleting 101 pages of manuscript to a few paragraphs in Chapter 8. That's a considerable metamorphosis in legal opinion, isn't it?

I have again reviewed p 8.25 (which appears to be Daly's major objection) within which the topic "Local Temperature Changes" is briefly described. Copy enclosed. Upon review, I reaffirm my position that I have well qualified this subject as a controversial one and have just reported the findings of various investigators in this area of clinical investigation. I have made no personal conclusions or recommendations, only reported the findings of the cited investigators. As Mr. Daly fails to offer any legal opinion to why the reporting of such investigations would place the ACA in harm's way, I see no reason for deleting this section. However, another disclaimer can be inserted here if that is your wish. As I have stated previously, I personally place little clinical value to the use of such instruments as they have been developed to date. However, neither I nor anyone else knows where such investigations may lead us in the years ahead. To suppress the fact that such investigations are being conducted is neither good journalism nor ethical conduct for a professional trade association.



Dr. Harris (3) 8/27/88

Chapter 10.18

On review of Dr. Kern's and Mr. Daly's original recommendation, you now state in your letter of 8/10/88 that no change to the original manuscript is necessary on p 10.18.

Chapter 10.19

I have no objection to including the disclaimer suggested by Mr. Daly. See revised page 10.19 enclosed. Overall Style and Format of Text

On review of his original recommendations, Mr. Daly now agrees that no change to the original manuscript's style and format is necessary. He now regrets the form and manner in which his original concerns were conveyed, and I acknowledge his apology.


SUMMARY

It now appears, after 12 months of communication back and forth between this office and ACA headquarters, that the only thing holding-up the publication of this text is Mr. Daly's concern with two sections: one found on p 6.8 and one found on p 8.25.

5.4-I have no objection to including a disclaimer on page 6.8, just the disclaimer suggested because it has nothing to do with the topic. The topic concerns a subluxation complex possibly being considered as a diagnosis and the disclaimer submitted concerns the subluxation complex as the monocausal factor in disease (an erroneous concept attributed to B. J. Palmer that even his father, the founder of chiropractic, disavowed).

5.4-Mr. Daly has amended his original recommendation of deleting 101 pages of manuscript to a few paragraphs on p 8.25. I find no valid legal justification for deleting these paragraphs. However, I have no objection to any disclaimer you may wish to insert here, as long as it is pertinent to the subject.

The bottom line, as Daly would state it, is that ACA staff has successfully halted the publication of this book for 12 months because of the insertion of hat has amounted to as two redundant disclaimers ...disclaimers that are nothing more than a repetition of the disclaimer I inserted in the front matter of the book (where it rightfully belongs, according to journalistic custom).

Congratulations; if your staff has not been able to censor this book, at least they have been successful at tactics designed to delay it until the book has become obsolete in many sections. Of course, progressing to publication does not guarantee the marketing of the book, does it? That's the next ploy, I suspect, according to ACA's history of achievement for 8 years.


R. C. Schafer, DC, FICC


Several months after this letter was written, I learned from the "mole" in the AMA's Chicago office (the same person said to have supplied the ACA with the foundation documents of the "Wilk's case") that the AMA would do everything possible to hamper books authored by R. C. Schafer. "They presented chiropractic in a light not favored by the AMA Board of Directors."


EXHIBIT D-2

February 22, 1984

Dr. Gerald M. Brassard
ACA Executive Vice-President
1916 Wilson Boulevard
Arlington, Virginia 22201

Dear Gerry:

We are having a communications problem between ACAP, ACA, and Sutherland Printing Company that is now becoming expensive and highly confusing to all concerned involved with style changes in "Developing a Chiropractic Practice. "Generally speaking, my proofreaders and those of Sutherland Printing have been instructed to use the U.S. Government Printing Office Style Manual when in doubt about style. This is the general reference used by most technical publishing houses (eg, Williams & Wilkins, Saunders, etc).

According to the GPO:

-- The word "Figure" is spelled out in text copy but abbreviated when set in parentheses; eg, (Fig. 10.2), not (Figure 10.2).

-- When "pre," "post," and "non" are used as prefixes, they are closed up, not hyphenated; eg, pretest, not pre-test; posttherapy, not post-therapy; nonclinical, not non-clinical.

-- An en dash is used to separate a combination of figures or letters, not a hyphen; eg, 10--12 months, not 10-12 months; ACA--ICA, not ACA-ICA.

-- Numerals are always used with measurements; eg, 2 weeks, not two weeks; 1 year, not one year; 3 inches, not three inches, etc.

These commonly accepted styles were used in our manuscript. However, the edited version submitted to Sutherland from the ACA changed the style. On our final proofing, we changed the style back to proper form. Today, Dave called me and, said that ACA wanted the incorrect style to remain. Each of these points, by themselves, appears to be trivial. However, to have copy changed back and forth several times is confusing to the typesetters at Sutherland Printing and results in unnecessary costs.

For future books, if you are agreeable, I'll hire an extra proofreader here to review the galleys. This will save ACA staff time and simplify the communications loop. Naturally, chapter drafts will be submitted to you for approval before they are typeset, and we'll also send you a copy of final page proofs just prior to press time. This final proof will only require a quick scanning so that you can see what a book will look like after printing.

Sincerely,

R. C. Schafer, DC

cc: Sutherland Printing Company



EXHIBIT D-3

December 18, 1991

J. Ray Morgan
Executive Vice-president
American Chiropractic Association
1701 Clarendon Boulevard
Arlington, Virginia 22209

Dear Ray:

I request that David Shingler be removed from having anything to do further with the processing of the Chiropractic Assistant text or any other book that I author by charge of the ACA Board of Governors for the following reasons:

1. This book was submitted to ACA headquarters in December 1990, approved by a headquarters' professional staff member in January 1991, and we are still looking to months in the future for release. Shingler's motives for such a delay are questionable and inexcusable. In plain terms, I don't believe he knows what he's doing.

2. He has submitted page proofs to me before galley proofs. This is not trade custom or efficient and shows his lack of understanding of the publishing process. It's like a contractor building a house and then seeking the homeowner's approval of the blueprints. Obviously, this has caused me and the ACA unnecessary expense and time wasted with hundreds of changes.

3. Shingler arbitrarily chose to change my format by using a block "letter type" format on each single paragraph that followed a heading. During a telephone conversation, he could give only one reference for this silly decision: a Williams & Wilkins text. I called W&W and the editor admitted that it was a "bastard" (unique) format but that it was used only with the author's permission. I was not consulted on the use of this bastard format. Shingler just took the authority to make this silly decision without speaking with the author. This is underhanded and dictatorial.

4. He selected, for some unknown reason, Graphic Composition of Atlanta to do the typesetting. With over 30-years experience in book publishing, I have never seen such a poor job of copy proofing. They refuse to follow the conventions of ACAP and are far removed from the styles of Williams & Wilkins, Saunders, Lippincott, and every other major health-science publisher of which I am aware. There is even an explicit chapter on style in the book, but they refuse to follow it.



ACA (2) 12/18/91

5. For every error they found in the manuscript, they made twenty more. I have spent (without charge to the ACA) 11 days so far correcting their errors and unnecessary changes that were given blanket approval by Shingler. I cannot afford such wasted time and expense that delays work on current projects that is due to someone's ignorance of trade customs and acceptable variances of style. For instance, scores and scores of times when I used the word "besides" (in addition to) the proofreader changed it to "beside" (next to) --a different meaning. Scores and scores of times in the text when I used the word "assure" the proofreader changed it to "ensure" --a synonym that she preferred. Over a hundred times when I ended a paragraph with a period, they removed the period, leaving the paragraph open, because the last sentence was a listing. The proofreader would consistently change "whether" to "if," "workers' compensation" to "worker's compensation" (a change in meaning), and "presently" to "currently" just because she preferred the synonym. Dozens of examples like this could be called to your attention. In addition, I submitted a "spec sheet" to how headings were to be set but it was not followed. I just wasted my time.

6. In the preface of the book for CAs, I stated that the pronoun "he" would be used in reference to a DC and the pronoun "she" would be used in reference to a CA to avoid the cumbersome repetitive "he or she," with the awareness that both professions contain both genders. Yet, hundreds of times the proofreader changed "he" to "he or she" and "she" to "he or she," sometimes seven times in one paragraph --all with Shingler's blessing. This is in poor taste and reflects ignorance of the author's style acceptable to the majority of health-science publishing houses throughout the United States.

7. Shingler states that he uses the "Chicago Manual of Style" for all ACA publications. This reference from the University of Chicago Press is especially designed for newspapers, but even many newspapers do not follow it. The New York Times does not; it has its own style. So does The Washington Post, The Los Angeles Times, and scores of other newspapers, magazines, journals, etc. I know of no medical book publishing house that follows it. In the Chicago Manual, arbitrarily chosen by Shingler as his bible, it states that DCs should never be called "doctors" or their name prefaced by "Dr." This is an insult to the entire chiropractic profession. I do not know why DCs should pay his salary.

8. To grasp an overview of Shingler's understanding of the publishing business, I asked him what he thought a copyright protected. He stated that it protected the information published. This reflected his gross ignorance of publishing and copyright law. If his guesswork were true, a state-of-the-art literature search would be a criminal act. Facts cannot be copyrighted. I suggested that he talk with Daly. If you read the statutes, you will find that the information presented is immediately in public domain on publication with a copyright. A copyright does not protect what is written, it solely protects how it is written. It is also for this reason that one cannot copyright a "fill-in" form. In other words, it only protects the author's creative style, and Shingler has violated this copyright protection hundreds of times in the development of The Chiropractic Assistant with endless unnecessary changes to an accepted style and the substitution of synonyms.


ACA (3) 12/18/91

According to copyright law, unpublished material is the property of the author(s). All ACAP manuscripts carry a prepublication copyright. My rights as author transfer to the ACA on publication. This is federal law that I cannot amend. Shingler may suggest changes, and I would carefully consider each one, but he lacks the right, under law and common courtesy, to change my copy arbitrarily, though he states he's in charge of all ACA publications. One also might ask, what's his track record in authoring books published by a health-care profession. Have you listened to his "pitch" on his telephone answering tape? He's a very important fella at ACA headquarters, so he claims. I think his actions are an embarrassment to you, the Board of Governors, and the membership.

I wrote a half dozen or more books for the ACA with a Board liaison with no trouble at all. Ever since Brassard wanted complete control over book R&D, there has been no control, just excuses and obstacles.

Let me know how you intend to resolve this problem.

Sincerely,

R. C. Schafer, DC, PhD

cc: Drs. Redding and Pammer


Note: No answer received. Mr. Shingler reported to Mr. Morgan and did nothing without Morgan's "implicit instructions." Mr. Morgan knew I realized this. My anger was the result of feeling as if my child had been raped.

Mr. Shingler, a close friend of Morgan's who was strategically added to the ACA staff by Morgan, died at an early age several months later from AIDS.




EXHIBIT D-4

February 6, 1984

Dr. Gerald M. Brassard
ACA Executive Vice-President
1916 Wilson Boulevard
Arlington, Virginia 22201

Dear Gerry:

Please have someone check on two things for me to speed up the production of "Developing a Chiropractic Practice." The print production is falling far behind schedule.

First, I sent the final manuscript for Chapters 10--12, the Front Matter, and the Bibliography to headquarters on January 10th. The only thing not previously approved was a Foreword by Dr. Swank of PCC. However, the printer has not received this material as yet, and he states that his production scheduling people are quite confused.

Second, Sutherland has not received the original artwork of Chapter 9. All he has are Xerox copies of the figures. The original artwork was submitted with the original chapter (forwarded in late September) before Dr. Kern's revisions were incorporated (December, January).

I'm sorry to have to bother you with things like this. I suggest a smoother production flow on the next book.

Best regards to you and yours,

R. C. Schafer, DC



Note: Although this letter was directed to Dr. Brassard, it was Mr. Morgan who was director of administration staff.



EXHIBIT D-5

Some Excerpts That Tell A Story



Excerpt from a letter to Mr. Morgan dated 8/9/82

Dear Ray:

I received today the enclosed letter [to a Dr. Holcomb] that undoubtedly was inserted by error into an envelope addressed to me. Possibly, Holcomb received my letter?



Excerpt from a letter to Mr. Morgan dated 8/14/82

Dear Ray:

I received your letter of the 6th today. It was forwarded from the Peterson Chiropractic Clinic of Pueblo, Colorado.



Excerpt from a letter to Dr. Brassard dated 4/30/86

I received the impression on the telephone that you considered me a staff employee, which I am not. It is true that you sign some of the checks I receive, but it is also true that these checks are underwritten from the profits of previous books, booklets, folders, forms, etc that I created for the ACA.


Excerpts from a letter to Dr. Harris dated 9/10/87

One time when I was employed at ACA as director of Public Affairs and Lou Gearhart was on vacation, I received a letter from a novelty manufacturer who wanted permission to place the ACA logo (the old one) on a door mat and sell it to members. I replied (and copied Lou) that I didn't think it was in good taste for people to wipe their feet on the chiropractic emblem. When Lou returned, I received a verbal thrashing for my opinion, which was soon followed by a similar chastisement from Harry N. Rosenfield, Esq. I just cannot follow the motivation behind such thinking.

The ACA [staff] reviewer wishes to delete the four-sentence paragraph beneath the subhead. He calls them "opinionated and could be interpreted as the advocacy of unscientific practice." The first three sentences are the words of the distinguished chiropractic scholar, Joseph Janse (in Principles and Practice of Chiropractic, Lombard, IL, NCC, 1976). See Attachment M.



Excerpts from a letter to Dr. Sportelli dated 3/1/88

Well, here it is March and I haven't received that letter from headquarters that you mentioned I would in January. Typical.

I'm told that I can't write about chiropractic technics taught in accredited chiropractic colleges in an ACA publication (because the ACA does not endorse any technic) and then the ACA Journal, no less, advertises a book called "Spinal Manipulation" written by two MDs.

The picture is there for those who have the eyes to see it.

I wonder if the MD technics have passed a double-blind study and if their book is "scholarly." Certainly they wouldn't be based on just empiric evidence ...like aspirin was for a few hundred years? Ever hear of a dental, obstetrical, or an invasive surgical technic that was put to research protocols, let alone a noninvasive surgical procedure (which the medical dictionaries call manual manipulation or chirurgery)? Such hypocritical tyranny by ACA appears to be no less than professional apostasy.



Excerpts from a letter to Dr. Maurer dated 3/16/92

About 15 years ago, I suggested that a small percentage of book profits be set aside to finance future books. If you look over the track record of book sales, it's apparent that book projects are self-supporting. There should be no need to tax general funds.

A little over a year ago, I asked Dave Redding, then chairman of the Board, how the current governors felt about the books I had developed. He said that they were very pleased and would desire even more than one new book a year if possible. This encouragement was typical of the feedback received from chairmen and members of the Board since 1973.

Because of this encouragement, I made a large investment in 1992 to an already sophisticated operation in computer hardware and software so that I could provided manuscripts on generic disks. This reduces ACA manufacturing costs, yet my fees were not increased.



Excerpt from a memo to Mr. Hennekes, staff employee, dated 7/26/92

I received your letter announcing the new edition of ACA's Basic Chiropractic Procedural Manual has been sent for bids. I have been wondering about its status. The manuscript was sent to headquarters last January.

[Note: It is now mid-1993, and the book still has not been published as of this writing.



My inquiries were not answered. My suggestions were trashed. This is shameful conduct. One cannot read this history and not be amazed as the success ACA books have achieved despite the multitude of obstacles.

On May 11, 1992, I sent Mr. Morgan a proposal for book development that was to be placed on the Board's agenda at the ACA Convention to be held late in the month. Many weeks later, I learned that Mr. Morgan had failed to do this. I wrote Dr. Winkler of this in August who replied in a letter dated 9/2/92. See
Exhibit D-6. In this letter, the chairman of the Board promised that he would place the proposal on the agenda for the Fall meeting. He set out in a single paragraph for emphasis the following: "Either Mr. Morgan or I will contact you after that meeting." This proved to be another bold falsehood as I was not contacted by either Mr. Morgan or Dr. Winkler after the meeting. This means either that Dr. Winkler is not a man of his word, which I doubt, or Mr. Morgan again refused to carry out a specific directive of the chairman of the Board.

Ineptness Continues. In January 1991, I forwarded the manuscript for a book titled "The Chiropractic Assistant" to Mr. Morgan. The history of ACA book development shows that it takes about 5--6 months for typesetting, lithography, printing, collating, and binding when I served as liaison with the printer on previous ACA books. On this book, Mr. Morgan, now executive VP, wanted to be in charge of the manufacturing process. The result was a book produced of inferior quality and of higher than normal cost that required 12 months to produce. Seven months of potential sales had been flushed. [The AMA wins again.]

Illegally Retaining a Member's Property. Nevertheless, a year later, the book was finally ready for release in January 1992. It is trade custom to return artwork and photographs to their owner after a book is printed. Check with any local printer to affirm this. I asked David Hennekes (who was directed by Mr. Morgan and advised by Esquire Daly) to return my materials at least five times by letter, fax, and telephone calls in 1992. He refused to answer my requests despite that at the bottom of page iv of the published book it clearly announces that I retain ownership.

After 51 weeks of frustrating unanswered requests and 2 years after submitting the manuscript to Mr. Morgan, I received a letter from Mr. Hennekes on January 8, 1992, that exposed, without question, that it was Mr. Morgan, again, that had been disrupting a smooth book-development program. See Exhibit D-7 and also Exhibit D-8. The camouflage was that Mr. Morgan had to check with the Executive Committee to see if he had to return materials to the lawful owner. Apparently, Esquire Daly was again confused. It does not take a law degree to understand that the materials were returned after headquarters again paid for outside legal counsel. Yet, I had been denied their use 25 months after they had been loaned to the ACA supposedly for 5 months. Again, no apology was offered. There is no logic in such poor business practices, only mounting evidence of incompetence by Mr. Morgan and Esquire Daly. [The AMA wins again]



EXHIBIT D-6




EXHIBIT D-7






EXHIBIT D-8






Recent Incompetence. This ineptitude continues throughout administrative duties as demonstrated again as recent as last week in a telephone conversation received from Mr. Morgan in the afternoon of July 9, 1993:

     1. Mr. Morgan called to see how I could justify why costs were higher to revise the 4th edition of the ACA Basic Chiropractic Procedural Manual than they were to revise the 3rd edition. The answer was beyond his comprehension, and he wanted an explanation from me. This was because he failed to do his homework before asking an asinine question whose answer would be obvious to a child. Following is the publication history of this successful book. It is updated in each edition and printed on page ii of the manual:

First edition, June 1973
      Second printing, May 1974
      Third printing, October 1975

Second edition, June 1977
      Second printing, February 1978

Third edition, September 1980
      Second printing, April 1984

Fourth edition, April 1984
      Second printing, June 1990

Fifth edition, submitted December 1990.

Note that the time span between editions 3 and 4 was about 3.5 years. The span between editions 4 and 5 was about 6.75 years. A child would realize that a book 6.75 years old would require greater R&D time to update than one 3.5 years old --especially in our rapidly evolving profession. Mr. Morgan could not understand this. (Obviously, another delaying contact]

Also note that I had scheduled this book to be released in the summer of 1991. It is now the summer of 1993, thus the manuscript submitted in 1990 is already outdated. Alert management ...??? The membership deserves far better. [The AMA wins again]


     2. In recognition of my services to the ACA for 20 years, Dr. Redding, then chairman of the Board of Governors, invited me to attend the ACA Convention in 1992. At the time, my 89-year-old mother was near death and living with me under my care. I asked if I could have a rain check on this invitation for the following convention. Dr. Redding and Mr. Morgan both stated that this would be no problem. Dr. Redding then asked Mr. Morgan to place this on his calendar, and Morgan agreed. During the telephone conversation last Friday described above, I reminded Mr. Morgan of his failure to execute Dr. Redding's order. It was obvious that he did not want me at the convention to puncture any falsehoods about ACA book development. [The AMA wins again]



Failure to Obtain Proper Legal Counsel to Protect ACA Interests

ACA's staff counsel, Thomas R. Daly, Esquire, reports to Mr. Morgan. Esquire Daly stopped production of one text for over a year until outside counsel again disagreed with his legal opinion. He deferred the production of another book for about 3 years, again until an outside opinion disagreed with his counsel. See
Exhibit E-1 and Exhibit E-2. Although Mr. Daly's salary, reported to far exceed $100,000.00 a year, is derived from membership dues, it is apparent that he is only concerned with protecting the interests of Mr. Morgan rather than those of ACA members whom pay his salary. It is silly to retain expensive staff counsel whose opinion is consistently overturned by proper legal guidance.

In Exhibit E-1, it is pointed out that Esquire Daly insisted that I use a definition of chiropractic designed by a federal agency obviously influenced by AMA input. The definition I had used was the published Board-approved and official definition of the American Chiropractic Association. [Still doubt Mr. Daly's true allegiance?]

Through the years, Esquire Daly has tactically counseled Mr. Morgan that I was an ACA employee and must do as I'm told. This ($100,000 + a year) counsel is again based on an inaccurate interpretation of law. He also insisted that I delete OVER 100 PAGES from a manuscript that had been approved by the Editorial Board of Peer Review. He refused to offer a reason. See Exhibit D-7


For over a decade, the ACA has reported to the IRS on Form 1099-MISC that I had received " Nonemployee compensation." A sample is shown in Exhibit E-4
.

The decision of the United States Court of Appeals for the Third Circuit in Marco vs Accent clearly defines the difference between an employee and an independent contractor. See Exhibit E-5. Mr. Daly is either ignorant of the law, which I doubt, or has tried to coerce an ACA member by conveying a fraudulent interpretation of law to further Mr. Morgan's personal agenda. See Exhibit E-6 In either case, his impertinent remarks and inexcusable actions as staff counsel should be considered justification for immediate termination. [AMA influence saw to it that this would not happen]


Failed to Safeguard ACA Property and That Entrusted by a Member

When I resigned from the ACA staff in the Spring of 1979, I left in headquarters' files all glossy photographs, artwork, legal releases, etc, pertinent in the development of the first and second editions of the ACA Basic Chiropractic Procedural Manual. This was ACA property. Although, I authored the ACA's Basic Chiropractic Paraprofessional Manual as an independent contractor, I did the same for materials concerning that book. This was my personal property, but the ACA was the book's publisher. These files contained hundreds of costly photographs, artwork, and vital legal documentation such as releases. [Note that the AMA wins another]


EXHIBIT E-1

December 19, 1987

Dr. Ronald L. Harris
ACA Executive Vice-President
1701 Clarendon Blvd.
Arlington, Virginia 22209

Dear Ron:

Attached is a copy of a letter I received today from Thomas R. Daly of your staff. It is a response to my request for a technical review of Chapters 6 to conclusion of the manuscript "Basic Principles of Chiropractic," which was sent to ACA headquarters on July 15, 1987 (deadline for comments was set at September 1, 1987), allowing approximately 7 weeks for review. Thus, it took Mr. Daly approximately 22 weeks to review four chapters and an appendix. At this rate, we will be lucky to have the book published within 1 year after I had completed the manuscript.

If you compare Mr. Daly's letter of December 11 with the letter that I received dated September 2, 1987, I'm sure you will recognize that the only difference between the two letters is that the personal insults were omitted in his recent letter. This simple rewrite took [him] 15 weeks to accomplish.

I spent several hundreds of dollars in time to answer in detail the letter of September 2. I will not waste my time again in answering the same silly things. Both letters deal with generalities. I cannot correct abstractions. What I need to make rational changes are specifics:

1. If I have written anything that is in violation of law, please request Mr. Daly to cite the statute and submit pertinent decisions to support his opinion. Once I have the facts, I will share them with my attorney and his partners. If they agree with Mr. Daly, I will immediately make whatever changes are necessary. However, if they strongly disagree with Mr. Daly, I will request that you seek a third (unbiased) opinion, and I will accept that, whichever way it goes. However, I will not delete page after page on personal whim that cannot be legally justified.

2. If I have written anything that is in violation of clinical fact, please request Mr. Daly to cite one or more references (and submit a copy of the page that differs in respect to what I have reported) that are utilized in the majority of accredited chiropractic colleges to support his opinion. If my references differ, and authorities frequently do, I will enter both opinions in the manuscript. That's good journalism. However, I will not delete complete section after section without proper justification. Mr. Daly continues to make two basic requests that are laughable to any chiropractor: (1) delete any mention of devices; (2) delete any mention of a particular technique or system because the ACA does not endorse any chiropractic technique or system. Has he ever looked at ACA's "Applied Physiotherapy?" 



Dr. Harris (2) 12/19/87

Think about this and all the devices used in chiropractic that are mentioned in past ACA books. If I were to delete all devices used in chiropractic such as tongue blade depressors, stethoscopes, sphygmomanometers, pin wheels, spirometers, plumb lines, x-ray equipment, etc, what sort of book would you have left?

About a year ago, the Board of Governors approved my development of a book on chiropractic management of extraspinal articular disorders. It is essentially a book on adjustive technics. The first 5 chapters of the manuscript were forwarded to you a few days ago, and the manuscript will be completed in February. Just what am I to do? The Board authorized me to develop a book on adjustive procedures, and Mr. Daly says the Board does not have that authority. Who is working for whom? It would appear to me that Mr. Daly's role should be to augment, not sabotage, the directives of the Board of Governors. In Chapter 7 of the "Basic Principles" manuscript, under the subheading of atlas subluxations, I included the following paragraph: "The atlas may be found to have sideslipped to the right or left, tipped bilaterally superior or inferior, or rotated, relative to the axis. There are no bony IVFs for passage of the C1 and C2 spinal nerves, thus avoidance of the IVF encroachments that are produced in the lower spine." Mr. Daly wants to know whose research or opinion this is. Would you please explain to him that this is freshman chiropractic. If Mr. Daly will not or cannot fully justify his requests for deletion after deletion sentence by sentence, two alternatives quickly come to mind:

1. You can sell the manuscript as is to another publisher (eg, FCER).

2. You can make any unjustified deletions you wish and remove my name as author. Upon publication, I will transfer my prepublication copyright, as usual, to the ACA but list myself as the anonymous author on the copyright transfer. This is a common copyright procedure. However, please be aware that an anonymous publication published by the ACA will be generally perceived to be developed by staff under your direct supervision and in strict accordance with ACA policy. If the book is a success, staff can take all the credit. If it is not, staff can take all the blame. That's what I have to do. If you choose this alternative, please let me know as soon as possible so that I can contact the members of the book's Editorial Review Board, explain the situation, and see who wishes to remain listed and who does not.

Upon Mr. Daly's advice, headquarters held up the sale of "Developing a Chiropractic Practice" for almost a year. This means that you have lost thousands of dollars in potential income. Next, a Board member requested that you seek a second opinion. This was, I'm sure, a costly procedure that only resulted in showing that Mr. Daly's counsel could not be trusted. Thousands of dollars in lost sales and extra legal expenses, thanks to Mr. Daly ...all for what?

Sincerely,

R. C. Schafer, DC



EXHIBIT E-2

May 25, 1988

Dr. John C. Pammer, ACA State Delegate
6th & Arch Streets
North Catasauqua, PA 18032

Dear Dr. Pammer:

Many thanks for your letter of the 20th. Enclosed is some background information to my column which appeared in the May 15, 1988 issue of Dynamic Chiropractic.

My correspondence with the ACA staff has accumulated to a stack extending to over 3 inches in height. However, the enclosed will give you a good summary of the facts: 1. First is a letter addressed to me dated 12/11/87 from ACA's legal counsel, Thomas R. Daly. The devices he refers to are summaries of objective studies conducted on posturometers etc published in the JMPT. The entrepreneurs he refers to are people like Gillet, Illi, Cox, etc, and such pioneers as the Palmers, Carver, Firth, Logan, etc. He also insists that the only definition of chiropractic can be that used by a federal agency.

2. Second is my 12/19/87 response to Dr. Harris regarding Mr. Daly's letter.

3. Third are some comments from some distinguished chiropractic educators regarding their opinions of the manuscript. Note that every member of the Review Board, with the exception of Dr. Harris, has approved the manuscript (some with minor suggestions that have been incorporated). After numerous requests for justification, ACA has refused to answer why NOT ONE announcement of books I have developed under grants approved by the ACA Board of Governors has been published in the ACA Journal of Chiropractic in over 8 years; yet, they openly promote texts on spinal care authored by MDs...while they are "revising their marketing plan." The book in question in Mr. Daly's letter is titled "Basic Principles of Chiropractic: The Neuroscience Foundation of Clinical Practice." By holding-up this text for over a year, he has stymied the publication of two succeeding texts, both of which contain the same topics and references he objects to in this book, as do all other credible books on chiropractic of a clinical nature. I feel that if the AMA had "moles" on the staff of the ACA, they could do no better than that of the present ACA's legal counsel and those on staff who follow such antichiropractic advice: No promotion, outright censorship.

 Best regards to you and yours,

R. C. Schafer, DC



EXHIBIT E-3

July 11, 1990

Memo to: Contributors and Editorial Review Board Members
From: R. C. Schafer, DC
Subject: Text: BASIC PRINCIPLES OF CHIROPRACTIC

FINALLY!

Enclosed is a complimentary copy of "Basic Principles of Chiropractic: The Neuroscience Foundation of Clinical Practice." This is the book that was held from publication for about 3 years by ACA headquarters staff in power prior to June 1989. Since that time, there has been a slight change in administration.

In a letter dated December 11, 1987, ACA's legal counsel, Thomas Daly, stated that his "bottom line recommendation was to delete everything from manuscript page 7.29 through page 9.29." This was over 100 pages, and no legal justification was given for such drastic deletion. I refused and supported my opinion with "tons" of correspondence to Mr. Daly and Dr. Harris. Logic fell on blind eyes and deaf ears. With the change in administration last year, re-review of the manuscript found no fault with the manuscript. Publication was authorized without a change in content.

Thank you for your efforts in the development of this book. I believe it will make a positive contribution to chiropractic literature. My only regret is the time lapse between R&D and publication.


Note: The Editorial Board for this book, whom Mr. Daly held in such little respect, is listed on the next page.

The Editorial Board of Review for this book, Basic Principles of Chiropractic: The Neuroscience Foundation of Clinical Practice, consisted of:

Ronald L. Harris, DC, FICC, Executive Vice-president, American Chiropractic Association

Tuan A. Tran, PhD, Vice-president, Institutional Studies, Los Angeles College of Chiropractic

Mary Jane Newcomb, DC, MA, PhD, Director of Institutional Analysis, Cleveland Chiropractic College

Neil Stern, DC, FICC, Acting President, New York Chiropractic College

Paul A. Jaskoviak, DC, FICC, President, ACA Council on Neurology, and Director, Postgraduate and Continuing Education, Parker College of Chiropractic;

Ravid Raphael, BA, DC, FACO, Clinic Director, Assistant Professor of Chiropractic, Western States Chiropractic College

Harry L. Wallace, DC, Associate Professor, Clinical Sciences, Palmer College of Chiropractic

Howard Vernon, DC, FCCS, Director of Research, Canadian Chiropractic College

Arnold E. Cianciulli, DC, MS, FICC, FACC, Vice-president, Foundation for Chiropractic Education and Research

Howard A. Balduc, DC, Assistant Dean of Academic Affairs, Northwestern College of Chiropractic

Lawrence Wald, DC, Department Head, Chiropractic Principles and Technic, Texas Chiropractic College


EXHIBIT E-4




EXHIBIT E-5

Following downloaded from the Legal Forum, CompuServe Database:

BBS opinion # 92A0137P.03

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 91-1972

___________

ED MARCO,

d/b/a/ Ed Marco Photography

vs.

ACCENT PUBLISHING CO., INC.;

SONIA GILBERT;

LEIF KLEIN;

LAPIDARY JOURNAL, INC.;

ED MARCO;

GERRY J. ELMAN;

FREDERIC M. WILF;

ELMAN & WILF, P.C.,

Defendants on Counterclaim

Ed Marco, d/b/a Ed Marco Photographer

Appellant

__________

Appeal from the United States District Court
for the Eastern District of Pennsylvania

(D.C. Civil No. 91-02057)

___________

Argued

June 10, 1992

Before: MANSMANN, SCIRICA and ROTH, Circuit Judges.

(Filed July 23, 1992)

___________

Frederic M. Wilf, Esquire (Argued)

Gerry J. Elman, Esquire

Elman & Wilf

20 West Third Street
P.O. Box 703
Media, PA 19063

     Counsel for Appellant

David M. Ginsberg, Esquire (Argued)

Sidney Ginsberg P.C.
1420 Walnut Street
uite 1006
Philadelphia, PA 19102

 

     Counsel for Appellees

Charles D. Ossola, Esquire (Argued)

Hunton & Williams
2000 Pennsylvania Avenue, N.W.
Suite 9000
Washington, DC 20006

     Counsel for Amicus Curiae

___________

OPINION OF THE COURT

__________

MANSMANN, Circuit Judge.


     We focus here on the application of agency law in the context of the "work for hire" provision of the Copyright Act of 1976. 17 U.S.C. _ 101(1). We find that the district court misapplied agency principles to the facts in holding that a freelance photographer was the employee of a publisher. Because the district court premised the denial of a preliminary injunction on this erroneous conclusion of law, we will vacate the district court's judgment and remand for further consideration.

I.

     The district court has exclusive subject matter jurisdiction of this action arising under the Copyright Act. 28 U.S.C. _ 1338(a). We have appellate jurisdiction to review the district court's refusal to grant a preliminary injunction. 28 U.S.C. _ 1292(a)(1).

     We review the denial of injunctive relief for abuse of discretion, which occurs if the district court's decision rests on a clearly erroneous finding of fact, an error of law, or a misapplication of law to the facts. See Apple Computer, Inc. v. Franklin Computer Corp., 714 F.2d 1240, 1242 (3d Cir. 1983), cert. dismissed, 464 U.S. 1033 (1984). In determining whether an underlying error exists, we exercise plenary review of the district court's application of the law of agency to the facts. See, e.g., Levendos v. Stern Entertainment, Inc., 909 F.2d 747, 748 (3d Cir. 1990); United States v. Adams, 759 F.2d 1099, 1106 (3d Cir.), cert. denied, 474 U.S. 971 (1985).

II.

     Most of the salient facts are not in dispute. In recounting them, we adopt the findings of the district court so long as they are not clearly erroneous. See, e.g., Mellon Bank PSFS, N.A. v. Farino, 960 F.2d 1217, 1220 (3d Cir. 1992); Leeper v. United States, 756 F.2d 300, 308 (3d Cir. 1985).

     In 1990, the appellant, Ed Marco, photographed jewelry for Accent Magazine, a monthly trade journal for the costume jewelry industry. Accent Publishing Co., Inc. had engaged Marco on the basis of his portfolio, without a written contract and without negotiation concerning copyright or licensing. Accent supplied the jewelry and the props, sketched the shots, and retained the right to have Marco reshoot unsatisfactory photographs. Accent did not name Marco on the magazine's masthead.

     Marco, who has ten years' experience and who earned a Bachelor of Fine Arts degree in photography at the Philadelphia College of Art, made images for about six consecutive issues of the magazine and then for one or two later issues. He thus worked during every month except one over the course of his business with Accent.

     Marco shot the pictures in his own studio on his own time, subject to Accent's deadlines. For the most part, he worked on still-lifes, without anyone from Accent present. On a few occasions, however, Accent provided live models; Accent's Art Director, Kevin Myers, would pose the models.

     The exact scope of Myers' control at the live sessions remains in dispute. Marco challenges as clearly erroneous the district court's finding that Myers "directed, supervised, and provided artistic contribution to the photographic work."

      Testimony supports this finding. Myers generally concerned himself with the way models and jewelry looked in the photographs. See, e.g., Myers test., R. at 545, 575. Myers also would instruct Marco, in very general terms, to use more light. See id. Myers candidly admitted, however, that he did not become involved in the technical aspects of the photographs. For example, Myers described matters such as color balance and light meter readings to be beyond his ken and to be within the purview of a professional photographer. Myers test., R. at 561.

     Marco did not receive an hourly wage or periodic salary. The district court's finding, that "Marco was paid at the rate of approximately $150 per photograph used in advertisements, and $450 per month for all photographs used in connection with articles," must be read as shorthand for the facts that Marco received about $450 per issue, that issues appeared monthly, and that Marco invoiced about one job each month. Insofar as the finding implies that Marco received a salary of $450 per month, the finding is clearly erroneous.

     Accent thus paid Marco by the job. Accent also reimbursed Marco's film and processing expenses. Accent did not withhold taxes or pay employee benefits.

     Marco claims to have authored the photographs and therefore to own the copyrights to the images. He moved for a preliminary injunction to prevent their unlicensed republication. After a hearing, the district court considered Marco's likelihood of success on the merits, and, reasoning that the photographs were works for hire, determined that Marco could not prevail on the merits of a copyright claim. Given its determination that Marco had little chance of success on the merits, the district court found Marco's evidence of irreparable injury to be insufficient, and the district court denied the preliminary injunction.

III.

     The photographs in dispute would be classified as "made for hire" if they were "prepared by an employee within the scope of his or her employment . . . ." 17 U.S.C.A. _ 101(1) (definition). The district court thus premised its judgment on the conclusion that Marco was Accent's employee, as determined by reference to principles of the general common law of agency. Community for Creative Non-Violence v. Reid, 490 U.S. 730, 750-51 (1989) ("CCNV"); see also Restatement (Second) of Agency _ 220 (1957) (definition of master-servant relation)(cited in CCNV).

A.

     In Community for Creative Non-Violence v. Reid ("CCNV"), a charity hired Reid to sculpt a homeless family huddled on a steam grate. The charity dictated the work's title and a tight deadline for completion. The parties agreed to a total cost of $15,000, which covered assistants and materials. The charity supplied the grate and a steam effect, visited Reid to check on progress, and insisted on the use of particular props. After completion, a dispute arose. The charity claimed that the sculpture was a work for hire. 490 U.S. at 733-36.

     The Supreme Court held that the sculpture was not a work for hire because Reid was not the charity's employee. 490 U.S. at 751-52. The Court instructed that the term employee in the work for hire provision carries its common law agency meaning. Reid, said the Court, was not the charity's employee under common law agency principles.

     Under this test, which incorporates the Restatement definition of employee, the CCNV opinion instructs courts to determine whether an employment relationship exists by considering the hiring party's right to control the manner and means by which the product is accomplished, along with the following factors, among others: actual control over the details of the work, the hired party's occupation, local custom, the skill required, source of tools, work location, length of employment, the right to assign more work, the hired party's discretion over work hours, payment method, the regular business of the hiring party, the parties' understanding, the hiring party's role in hiring assistants, tax treatment, employee benefits, and whether the hiring party is in business.

B.

     Application of the CCNV and the Restatement factors demonstrates that the district court erred in concluding that Marco was Accent's employee. Under the common law of agency, Marco was an independent contractor.

      In its application of agency law to the facts, the district court recognized only two factors that indicated independent contractor status: Marco used his own equipment and paid his own taxes. The district court did not discuss four more factors that indicate independent contractor status: Marco supplied his own studio, did not receive employee benefits, works in a distinct occupation, and was paid by the job. We need not further develop these six factors, which all indicate that Marco was an independent contractor.

     In addition, the district court did not properly recognize that Marco had discretion over his work hours; he could work on any day, at any hour, and for any stretch of time he chose. The district court did consider Accent's imposition of deadlines in this context, but deadlines do not alter an independent contractor's discretion over work hours. We note that in CCNV, the charity had imposed a strict deadline for completion, 490 U.S. at 733, yet the Court did not weigh that deadline against a determination of independent contractor status. Id. at 752-53 (only the charity's control over the sculpture's specifications indicated an employment relationship).

     Nor did the district court recognize that Accent's absence of a right to assign more work indicates Marco's independent contractor status. Although the district court considered Accent's right to require Marco to reshoot unsatisfactory images, this right was merely a right to final approval, which differs from the right to assign more work. The record does not suggest that Accent could assign any more than one issue's worth of photographs to Marco during any particular period. Accent could not, for example, require Marco to photograph its employee of the month.

     Another factor, the skill required of a magazine photographer, indicates Marco's independent contractor status, although the district court held otherwise. The district court wrote: "Marco was not a skilled worker. The position of staff photographer did not have an educational requirement or [require] more than a minimal knowledge of photography." Marco, No. 91-2057 at 15. In this age of Polaroids and Handicams, the photography profession might not demand the expertise once required to create an image. Nonetheless, something beyond owning a camera is necessary to make photographs suitable for a trade journal. Accent, after all, did not hire Marco off the street; Accent hired him after seeing his portfolio. Accent's own Art Director testified that "[Marco is] the person that makes the shot work technically. . . . That's why I hire a photographer, I'm not a professional photographer, I'm an art director." R. at 561.

     Photographers, moreover, fall along a spectrum in their skills. Near one end fall the likes of Ansel Adams, recording the American landscape with an 8x10 view camera. Near the other falls an untrained clerk, snapping mug shots with an instamatic. Marco, with a degree in photography and ten years experience, falls somewhere in between. As a factual matter, Marco may not be skilled in the sense that Ansel Adams was skilled. From a legal perspective, however, Marco is certainly skilled in the sense that Reid, the sculptor in the CCNV case, was skilled.

     As regards another factor, the length of the relationship, Marco produced photographs for Accent for six months, but without a regular schedule or regular hours. Although the district court considered that the continuing nature of the relationship indicated employee status, the duration of a relationship indicates an employment relationship when the work is scheduled and periodic, or full-time. See Restatement _ 220 cmt. h (factors indicating employment relationship include "employment over a considerable period of time with regular hours" (emphasis added)); compare CCNV, 490 U.S. at 734 (Reid worked on charity's sculpture exclusively). Thus, the duration of this relationship provides only weak evidence, if any, of an employment relationship.

     Indeed, of all the factors that the district court considered, only three would weigh in favor of a determination that an employment relationship existed. First, Accent is in business, which increases the possibility that it would employ people. Second, Accent regularly publishes photographs of its own conception. As between Accent and a charity that does not regularly produce sculptures, it is more plausible that Accent would engage an artist as an employee, but Accent might easily accomplish its regular business by using independent contractors rather than employees.

     Third, Accent exercised control over the details of the work. Specifically, Accent supplied jewelry, props, models, sketches intended to describe the exact composition of the photographs, and, at some sessions, an Art Director. This factor is not dispositive. CCNV, 490 U.S. at 752. Indeed, courts should keep this factor in perspective, since it resembles the "control of the product" test rejected by the Supreme Court in CCNV. See 490 U.S. at 737-51.

     Moreover, Accent controlled only the subject matter and composition of the images. Accent did not control most aspects of the work, which include the choice of light sources, filters, lenses, camera, film, perspective, aperture setting, shutter speed, and processing techniques. It should be recalled that Art Director Myers attended only the live sessions and that his direction there was limited to composing the subjects and to commenting on the "feel" of the work. In his own words, "I am directing [Marco] on the composition of a photograph, I am directing him on the mood of the lighting, the emotion within a given scenario." R. at 561. This testimony illuminates the district court's finding that Myers "supervised" some of the sessions; even that supervision was limited to subject matter, composition, and "mood."

     Accent's control of the product was thus no greater than the control exercised by the charity in CCNV, who articulated the subject and composition, who supplied models, who occasionally supervised the work, who constructed part of the sculpture, and who was still not an employer. Although the district court was correct to consider this factor, it appears to have given it disproportionate consideration. The only significant difference between this case and CCNV is that here the hiring party is in the business of regularly publishing photographs in connection with advertisements and articles. That distinction does not give rise to an employment relationship.

     We note that the remaining three factors are indeterminate in this case. First, the record before the district court was barren of evidence of custom, so we will not address that factor. Second, the district court did not make any findings as to the parties' beliefs regarding the assumption of control by Accent and submission to control by Marco. See Restatement _ 220 cmt. m (only parties' beliefs about assumption of control are dispositive). It appears, however, that the parties here did not hold a common belief. Third, there were no photography assistants, only models and stylists. Accent paid the models; Marco, the stylists. Even if Accent had paid both, Accent did no more than supply the models as subjects for the photographs. Supplying a subject represents some facet of control of the product, a factor already counted in favor of a determination that an employment relationship existed. Mis characterizing a human subject as an "assistant," however, resulted in an improper double-counting of factors by the district court.

     In summary, a magazine publisher's regular practice of commissioning photographs of its own conception does not create an employment relationship with an experienced photographer who uses his own equipment; who works at his own studio, on days and times of his choosing, without photography assistants hired by the publisher; and who receives payment without income tax withheld, without employee benefits, for discrete assignments rather than for hourly or periodic work.

IV.

     With respect to evidence of custom, Marco asserts that the district court abused its discretion in excluding the deposition testimony of an expert. When the expert was unable to testify on a particular date, the district court allowed Marco to proffer a transcript of the deposition. The district court, however, did not allow the expert to testify later and did not consider the deposition testimony in its opinion.

     We note that, because the district court allowed Marco to proffer the deposition transcript, the transcript is part of the record for the limited purpose of reviewing the district court's exclusion of the expert testimony.

     We further note that the district court was within its discretion to exclude the testimony of Marco's expert. A trial court has broad discretion over whether to admit or exclude expert testimony. Aloe Coal Co. v. Clark Equip. Co., 816 F.2d 110, 114 (3d Cir.), cert. denied, 484 U.S. 853 (1987). We observe in this regard that there are substantial questions as to this expert's qualifications, and that his testimony on custom appears to have been equivocal.

V.

     Because the district court held that Marco did not own the copyrights, the district court did not apply the rule that "[a] copyright plaintiff who makes out a prima facie case of infringement is entitled to a preliminary injunction without a detailed showing of irreparable harm." Apple Computer, 714 F.2d at 1254; see also Marxe v. Jackson, 833 F.2d 1121, 1128 n.4 (3d Cir. 1987); Educational Testing Svcs. v. Katzman, 793 F.2d 533, 543-44 (3d Cir. 1986); cf. S&R Corp. v. Jiffy Lube Int'l, Inc., Nos. 91-5614 & 91-5887, slip op. at 15 (3d Cir. June 23, 1992) (trademark injunction).

     Instead, the district court applied the approach taken in Kontes Glass Co. v. Lab Glass, Inc., 373 F.2d 319 (3d Cir. 1967), which we have interpreted to apply when material peripheral to the plaintiff's business has been infringed, see Apple Computer at 1254, and which we have interpreted to require a stronger showing of irreparable harm as the plaintiff's likelihood of success on the merits wanes, see id. Damages were speculative in Kontes because the plaintiff's loss of business would result only indirectly from a competitor's use of a catalogue similar to the plaintiff's, and because the amount of that loss would be difficult to prove. In Apple Computer, however, the infringed programs were central to the plaintiff's operations.

     The photographs here are central to Marco's business. His income as a photographer derives directly from the licensing and display of the images. If Marco is the exclusive owner of the copyrights, then with each unlicensed republication of Marco's images, Marco loses both a licensing fee and the opportunity to negotiate that fee. Thus, if Marco has made a prima facie showing of copyright infringement, he will be entitled on remand to a rebuttable presumption of irreparable injury. Apple Computer, 714 F.2d at 1254; Educational Testing Svcs., 793 F.2d at 543-44.

VI.

     As did the defendant in Apple Computer, Accent raised defenses before the district court other than the one we have addressed on appeal; specifically, Accent raised the defense of joint authorship, see CCNV, 490 U.S. at 753, and the defense that Marco or his agent licensed reuse of the images, see Nimmer on Copyright, _ 10.08. In assessing Marco's likelihood of success on the merits, however, the district court did not go beyond Accent's work for hire defense to consider the issues of joint authorship and licensed use. Because it is appropriate that the district court consider these issues in the first instance and their relevance, if any, to a preliminary injunction, Apple Computer, 714 F.2d at 1255, we will remand for the district court's reconsideration of Marco's preliminary injunction motion.

VII.

     For the foregoing reasons, we will vacate the district court's judgment denying Marco's motion for a preliminary injunction, and we will remand for reconsideration of the motion in light of this opinion and in light of any relevant issues timely raised by the appellees.




EXHIBIT E-6

January 19, 1988

Mr. Thomas R. Daly
American Chiropractic Association
1701 Clarendon Boulevard
Arlington, Virginia 22209

Dear Mr. Daly:

I received today your letter of the 15th, which you state is in response to my letter of 12/19/87 to Dr. Harris.

You state that:

"The issues are simple. You are writing a book for us and we, in good faith, have made some pointed comments and recommendations which is our right.

"First, I do not write books for you or the ACA staff. I develop books that are designed for the chiropractic profession. During the past several years, I have offered the ACA Board of Governors first option as publisher, not ACA staff as censor. The ACA takes ownership of the copyright upon formal publication, at which time my ownership of the manuscript as author is transferred to the sponsoring publisher for that edition. This is normal copyright procedure and in accordance with the provisions of section 410(a) of title 17, United States Code, regarding copyright registration and the transfer of author's rights to a publisher.

You are in error when you infer that I am a hired employee of the ACA. I do not author books for you or for the approval of the ACA staff. In the jargon of the Copyright Office, I do not develop manuscripts as "a work made for hire." Thus, it is not your right to make "pointed comments" about the manuscript. As mentioned previously, I develop manuscripts believed to be of interest to the chiropractic profession. I offer the ACA Board of Governors an option to serve as publisher. If they feel the proposed book has merit and choose to publish it and enjoy the proceeds from its sale, they authorize grant funds for its development. If the ACA Board of Governors is not interested in a particular title, I have the right of submitting it to another publisher for consideration. A recent case in point was Chiropractic Management of Sports and Recreational Injuries,* which the ACA Board was not interested. The proposal was then submitted to some medical book publishers of which Williams & Wilkins submitted the highest bid and has reaped to date over $ 457,000.00 in sales. Williams & Wilkins had no ownership rights regarding this edition until my author's rights were transferred upon distribution of the first printed bound copy.

You do not have the right but I do grant you the privilege to make recommendations, and I have the right to agree or disagree with them. If they are reasonable, I will agree. If not, I won't. "The issues are simple," as you state.


Thomas R. Daly (2) 1/19/88

I desire my books to contain factually correct information. To assure this, I usually appoint an editorial board of review composed of various authorities in the field to approve that what is communicated is factual. The development of such a board of review is my custom, as an author, not my obligation. It is a board selected by me, not by ACA staff, of whom I expect will offer polite, objective input. With the sole exception of comments by the ACA staff, my expectations have been completely fulfilled.

You, Mr. Daly, were not appointed to the book's Editorial Board, nor was [another staff employee]. Nevertheless, if either of you can point out one or more errors of fact in the manuscript, I would appreciate it and will correct the error(s) immediately.

As I have repeatedly mentioned in previous correspondence, I welcome the correction of errors of fact. What I do not welcome are your "pointed comments" and attempts at outright censorship of whole sections of manuscript without cause. It is beyond me why you and [an ex-employee] think you can dictate to me how I should write a book, what I should include, what I shouldn't include, what I should reference, what I should not reference, what I should or should not include within illustrations, what photographs I should or should not use, or what the profession can or cannot read. I thought the Allies won World War II?

No DC has seen a single mention of a book I have developed via a grant from the ACA Board of Governors in an advertisement in the ACA Journal of Chiropractic in over 8 years. The Board has approved grants for several books, investing many thousands of dollars, but ACA staff refuses to promote them. However, this month's issue (January 1988) contains a full-page advertisement (p 20) of a book titled "Spinal Manipulation" authored by two medics. At least one of these authors is well known to be a devoted enemy of chiropractic.

If you think that things like this are going unnoticed and why some currently on staff are directing such a policy against the wishes and welfare of the ACA membership and the profession at large, you are in error

R. C. Schafer, DC

cc: Lists I--III.

Note: If the Board had not rejected my 1981 proposal, the ACA would be $400,000 dollars richer today (1993) if they had applied the same marketing efforts as that of Williams and Wilkins, and these proceeds would have remained within the profession.

The last paragraph in the above letter proved to be in error. AMA influence in hindering book development by R. C. Schafer did go unnoticed.


In 1981, I read where the ACA was planning to move its headquarters to the Washington area and wrote Dr. Brassard of my fear that important materials may be lost in transit. See Exhibit F. This letter was never answered. However, during a subsequent conference call with Mr. Morgan and Dr. Brassard, I asked again that my files be sent to me so they would not be misplaced during the move. Mr. Morgan quickly replied, "Oh, No! We must have CONTROL!" --so I did not argue the point. On hindsight, I should have.

About a year ago, when I was developing the second edition of the "Paraprofessional Manual," I asked Mr. Morgan to forward my glossy photographs from the files. Several weeks passed, and as typical, with no response. A follow-up call revealed that these files could not be found. "Sorry, Dick, just can't find them," I was casually informed. Need I mention that one of these releases was from the American Medical Association. Think about that for a minute. An informed membership would shutter of the potential consequences of Mr. Morgan's and Esquire Daly's improvident attitude. Because of incompetence, there is now no way to prove I had AMA permission to reproduce their legally protected material. Through Mr. Morgan's bungling management, we now have no defense against a suit. [The AMA wins another]

 

Concluding Remarks

As shown in Exhibit B and others, the evidence clearly demonstrates that the development and sales of books for the field can be a highly profitable enterprise for the ACA if administered conscientiously. It can be (and should be) a self-supporting effort requiring absolutely no capitalization from dues. There is no logical reason why the Board should discontinue a highly successful book development program as they did last month on Dr. Maurer's recommendation.

In each of my formal proposals to the ACA, I have been completely forthright about terms. Each states that a proposal is submitted offering the ACA on publication complete publishing, sales, and distribution rights to a specific edition of a specific title. Absolutely no editorial or censorship rights have been or will be transferred to ACA salaried employees without negotiation.

Naturally, I appreciate errors of fact called to my attention so that they may be corrected. However, in some instances, headquarters staff or an appointed representative has, without my knowledge but with the encouragement of Mr. Morgan and Esquire Daly, underhandedly altered my copy so the result is either in error or draws a conclusion of which I strongly disagree. Refer to Exhibits D-2 and D-3.

These incorrect or false inclusions or changes remain anonymous, yet my name is left as the author of the entire text --a gross misrepresentation effecting personal harm. I have not decided whether this violation of terms and adulteration of my manuscript for The Chiropractic Assistant should be resolved through litigation. Much depends on whether current efforts to block my production for the ACA (prepaid by previous books) can be auspiciously resolved.


EXHIBIT F

October 7, 1981

Dr. Gerald M. Brassard
ACA Executive Vice-President
1735 De Sales Street, NW
Washington, D.C. 20036

Dear Gerry:

I recently read where the Des Moines office is being phased out and that operations will be concentrated at the Executive Offices. With this in mind, I would like to offer a suggestion that may avoid possible future difficulties in regard to ACA's major texts: the ACA "Basic Chiropractic Procedural Manual" and the ACA "Basic Chiropractic Paraprofessional Manual."

The research and reference material used in the development of these texts is located at the Des Moines office in various locations. Some material was located within the Public Affairs Office, some was placed in storage, and artwork and photographs were filed in the Art Department. I was well acquainted with the locations of the material and could direct personnel to the location of necessary materials when needed for revised editions. However, I have a "gut feeling" that these unreplaceable materials may become "lost" during relocation.

The 3rd edition of the procedural manual was released last year, thus a revised up-dated edition will not necessary for 2--3 years. However, it is vital that its references be safeguarded, else replacement manhours and materials would be in the range of $15,000--$20,000. This is also true of the CA manual. Several boxes and files of material are involved. The paraprofessional manual is in dire need of revision now. In fact, I felt that it should have been updated prior to its second printing (1980). The text has found wide acceptance and is being used as a required text at community colleges that have a CA curriculum. However, it was first developed in 1977 and has not been updated since.

There have been many changes in the profession in regard to office systems during the past 4 years. In 1977, professional advertising was considered unethical. About 20 descriptions and illustrations of sample ACA materials have since been replaced or eliminated. Thus, to maintain the manual as a credible reference, I suggest revision be made in ample time before its inventory is exhausted --allow about 6 months for R&D and 3 months for print production.

I'm speaking before the Washington Chiropractic Assistants Association on the 17th in Yakima. The ACA's manual is a required text at Spokane Falls Community College's chiropractic assistant training program --and the subject of upgrading in light of new developments has been mentioned as a concern. As these texts have been a substantial profit resource and image builder for the ACA, I feel it would be prudent to gather the background materials for these texts and locate them at my editorial offices so that they will be accessible for future editions and be combined with my files of new methods, procedures, and policies. I think you will agree that project-resource materials are best consolidated at one location. 

 

ACA (2) 10/7/81

Please discuss the situation with the Executive Committee and give me a call as to direction. Resolution may require a trip to Des Moines to consolidate the material before it is lost or discarded by someone unaware of its importance.

Best regards,

R. C. Schafer, D.C.

 

P.S. For reference, below is the profit history of the two texts discussed: ate Edition/Printing Run Quantity Sales Costs Profit ACA Chiropractic Procedural Manual

5/74 1st edition, 1st printing ....... 5,000 $ 68,750 $12,367  $ 56,383

10/75 1st edition, 2nd printing ....  500     6,875    2,273     4,602

6/77 2nd edition, 1st printing ...... 2,500    75,000   22,168     52,832

2/78 2nd edition, 2nd printing ...... 2,500    75,000   16,261     58,739

9/80 3rd edition, 1st printing ...... 2,500    75,000   31,500     43,500

                                                           13,000 $300,625 $84,569 $ 216,056


ACA Chiro. Paraprofessional Manual

11/78 1st edition, 1st printing ..       2,500  100,000 31,500 68,500

6/80 1st edition, 2nd printing ....     2,500 100,000   18,900   81,000

2nd edition .....................................        5,000 200,000 $ 50,400  149,500

                                                 Total ..... 18,000 500,625 $134,969 $365,556

 

This letter was never answered. Several years later, Mr. Morgan admitted he "lost" the material. However, no mention of his responsibility or retribution for my financial loss was offered. [The AMA wins another]

While speaking with Dr. Redding in December 1991, then the proficient chairman of the Board of Governors, I asked him why the Board had not taken action, one way or another, on the proposals I had submitted the previous June. After locating the minutes of that meeting, he informed me that the Board had accepted two of the three proposals. I asked, "If this occurred in June, why hasn't Morgan informed me in 6 months? "I do not know," he replied, "but I have had things like this happen before. I'll look into it." I'm sure that Dr. Redding will remember this conversation, for he was quite perturbed at the time. Regardless, Mr. Morgan refused to communicate the Board's action. (The AMA wins again]

Experiences Are Not Unique. Several times in recent years, I have had telephone conversations with Dr. Paul Jaskoviak of Parker College of Chiropractic in which he asked, "Dick, why doesn't Morgan answer his mail? I've had many letters go unanswered and he also refuses to return my phone calls. What can I do?" "I don't know, Paul," I replied, "you are not alone in coping with his insipidness." Again, I'm sure that Dr. Jaskoviak will remember these conversations, for he was extremely angry at the times because of Mr. Morgan's indifference to a respected member's concerns.

Dr. Jaskoviak informed me that he has personally sold about 5,000 copies of Applied Physiotherapy, 1st edition, making it ACA's best seller (despite antagonistic efforts by Mr. Morgan and Esquire Daly to hinder publication). Yet, Mr. Morgan, rather than being helpful or respectful of the contributions of a doctor of chiropractic, will not give Dr. Jaskoviak the courtesy of answering his letters or returning his telephone calls.

Delay After Delay. It should also be noted that I forwarded the manuscript of Applied Physiotherapy, 2nd edition, to Mr. Morgan on March 22. I have yet to receive from Mr. Morgan acknowledgment of receipt. Shameful behavior is habitual.

Toward the best interests of the membership of the American Chiropractic Association directly and the profession at large indirectly, I suggest that the House of Delegates in closed session decide:

     1. Why R. Jay Morgan should be retained as executive vice-president of the American Chiropractic Association. He is uneducated in chiropractic and has shown, as evidenced by the exhibits attached, that he has diminutive concern of how ACA administration affects the membership and profession, of how money provided by your hard-earned dues is misappropriated, of how important book-related materials are safeguarded, of how legal forms are properly registered, of how Board-chairman directives are fulfilled, and of how or if ever Board-approved books are marketed.

     2. Why Thomas Daly should be retained as ACA staff counsel. Rather than providing astute legal counsel, this over-paid attorney has assumed an authoritarian role that demands membership obedience in following his definition of chiropractic --a definition you never had a voice in developing. He also states that, with his advice, the ACA does not approve a single chiropractic technique or device regardless if taught and used in accredited chiropractic colleges or not. His legal decisions are consistently overturned by outside expertise at added cost. Yet, he will grasp his  enormous paycheck with glee knowing that you who earn your living by the application of clinical chiropractic pay his salary. Is this the man you want to represent your interests in court? After he delayed publication of the "Economics" and "Neuroscience" manuals for years, outside legal opinion completely disagreed in each case and the books were finally released after severe damage in timing was done. Of course, an apology was never received.

     3. Why book development and its marketing, proved to be a substantial income producer in the past under the direction of Dr. Schafer, has been stymied by Mr. Morgan's and Esquire Daly's subterfuge and the excuse that funds are not available when book development has shown to be, without question, a self-sustaining highly profitable operation requiring not one cent of dues revenues.

In light of the substantial evidence provided herein, it is recommended that Mr. Morgan and Esquire Daly be dismissed immediately. The chairman of the Executive Board of Governors should order the person in charge at headquarters during convention to seal all files of Mr. Morgan and Esquire Daly to prevent the destruction of implicating records.

     4. Why, under the ACA headquarter's leadership by Mr. Morgan and Esquire Daly, the ACA is to apply multiple thousands of your dollars to support yet another journal that is destined to failure. Even JMPT is reported to be supported by only 10% of the field, and it has been marketed for a decade or more. This new journal, as reported in the ACAJ to be underwritten by your dues, is to be under the control of two DC-MDs. Imagine that! Here we have two DCs that were either so inadequately educated in chiropractic or inefficient in its application that they chose to turn their backs to the profession and opt for allopathic medicine. Apparently, they have not found financial success in the medical field either so they are now trying to fill their pockets by setting themselves up as editorial experts in what YOU should read and do in your practice. And membership dues proceeds are to pay the bill. Shameful behavior.

It is recommended that all development of another journal by the ACA be halted immediately until a comprehensive field survey of need and marketing study can be conducted that would show without question that such a project would be profitable in 3 years. It is incongruent to have headquarters asking for donations to support this and that yet waste thousands and thousands of dollars on unprofitable ventures.

Be aware that if the House [of Delegates] in closed session wishes to take the immediate action necessary on the recommendations made here --all which are founded on irrefutable exhibits- that there will likely be a few guilty members of the Board of Governors that will try to protect questionable personal goals. Be alert that they will try desperately to convince you that your actions should be postponed for one excuse or another (eg, pending retirement, etc). By so doing, I know you will have the wisdom to see that this is just a signal of their involvement in continuing this shame on our association and profession. There are constitutional procedures for the House to recall governors who are not serving the best interests of the membership.

Delegates, fellow chiropractors, the future of the ACA is in your hands. So mote it be.



ADDENDUM

The following three letters did not appear in the 1993 document sent to ACA delegates. However, they are pertinent.

G-A - Letter to Multi-College Editorial Board of Basic Principles of Chiropractic.

G-B - Letter to W&W which allowed Dr. Maurer's rejected book proposal to be reconsidered on my recommendation.

G-C - Letter to Dr. Maurer 2 years later, now on the ACA Board of Governors, in response to his letter in which he stated he knew more about developing chiropractic texts than I. Dr. Maurer had now become a legend in his own mind and helped destroy my career in developing profitable texts for the ACA.

 

EXHIBIT G-A


[Deleted. Found to be a duplication of Exhibit E-3]



EXHIBIT G-B

November 20, 1981

Maureen K. Vardoulakis
WILLIAMS & WILKINS
428 East Preston Street
Baltimore, MD 21202

Dear Maureen:

I was not pleased to hear that Dr. Maurer's proposed book will not be recommended for publication on the basis of the field inquiries you have received. I would appreciate it personally if you would reconsider this decision.

First, the three and only negative reports you received were all from faculty of National Chiropractic College. Besides my favorable reply, another was received by a field practitioner not closely associated with a particular chiropractic college. NCC has fine roentgenographic facilities, and undoubtedly, if a book on chiropractic roentgenography is to be published, Dr. Hildebrandt and his colleagues would prefer that it be developed by someone close to NCC.

Following are some additional thoughts directed to your request of the 11th.

I would first like to preface my following remarks with the fact that Dr. Maurer's proposal comes from one with outstanding credentials as you can tell by his vita. Thus, I shall try to offer a viewpoint from that of a publisher of this particular text.

1. There is a need for such a text. Chiropractic students (studying diagnostic radiology), members of the ACA Council on Roentgenology, and those practitioners who have a specialized interest in roentgenography will find the text most interesting.

2. None in chiropractic. However, the text, admittedly, is a chiropractic-focused text similar in scope to a series of five monographs called "Exercises in Diagnostic Radiology" published by W. B. Saunders and authored by Squire, et al.

3. I am not a roentgenologist, thus not in a position to judge his scientific accuracy. However, I can assure you that he is held in high esteem by his knowledgeable colleagues. Yes, the organization appears overly simplified to appeal to the student; but I feel this would be a plus for the audience that can be expected. It is also true, as you state, that the writing needs heavy editing for grammar and punctuation in several of the pages quickly reviewed, but this is not unusual for one as Dr. Maurer who has developed his reputation in oral presentations. I agree that the title, "Practical Applied ..." is redundant.

4. Dr. Maurer is well known among the members of the American Chiropractic Association --the largest of the national professional organizations-- and within the Departments of Roentgenology of all chiropractic colleges.

 

MKV:W&W (2) 11/20/81

5. The answer to this point would depend on the quantity necessary to show a profit. I would venture to estimate that sales would be between 2000--2500 copies in 5 years, due to the audience.

6. If I were a student or a member of the ACA Council on Roentgenology, I would purchase this book if available. Thus, I feel that students and DC roentgenologists are the primary markets.

7. Yes, definitely.

In conclusion, please reappraise your current decision. I feel that the primary market that can be established for this type manual is at the chiropractic college level as a supplemental text. If your market survey indicates initial interest at four or five institutions, I would, as a publisher, produce a cautious volume. Don't count heavily on NCC support.

Thank you, Maureen, for allowing me to review this proposal. No honorarium is necessary. I would like to see W&W develop a most successful program in chiropractic literature, and I realize that title choices at this stage are most crucial. Once you have several highly profitable chiropractic texts established, you may then offer your usual honorarium for my input.

Towards another point, please pass along to Toni that all colleges contacted have offered representatives to the editorial board for my biomechanics text: This offers a total of 12 institutions now involved.

Sincerely,

 

R. C. Schafer, D.C.

P.S. I'm happy to hear that the first book W&W published by a DC, "Chiropractic Management of Sports and Recreation Injuries," has quickly become a "Best Seller" for W&W. I hope that this will encourage you to support other chiropractic authors.



EXHIBIT G-C

04/23/93

Dr. Edward L. Maurer
2330 Gull Road
Kalamazoo, Michigan 49001

Dear Ed:

Your letter of the 14th arrived today. I have no idea why it took 8 days for transport.

There is no argument with anything you state in this letter. The points made were either personal or relayed opinion, or new rules for a game developed after the game has been played. It appears that my work is being judged under criteria that are either unknown to me or not previously agreed to by the parties involved. No one has a defense against after-the-fact criticism.

The only book I ever developed for the ACA that was a "work for hire" is the Basic Chiropractic Procedural Manual, which I developed as an ACA salaried employee. The ACA has full ownership of this book and all future editions. I retain full author's rights on all other books I have developed that were published by the ACA.

When my marketing research finds a title that is of interest to the field, it is my usual procedure to give the ACA first option to publish the proposed edition of a specific text. The terms and my methodology of developing the proposed edition are stated clearly in my proposals. You may wish to review them. The ACA then has the opportunity of either accepting or rejecting the specific proposal. To present criteria different to that proposed after manuscript development is mute. I am author of the manuscript, and the ACA may either accept or reject the opportunity to publish the edition. The ACA is not the author of the book. My manuscript is not a "work for hire." The ACA has purchased first North American book publishing rights for a specified edition of a specific manuscript.

(2)

It does not please me that you are disappointed with the manuscript titled Posttraumatic Rehabilitation. However, I'm sure you understand that the manuscript was not developed to meet your approval. I write books that I would wish to buy; someone else may have different desires. That's okay. Different people have different preferences. I have never set out to develop a scholarly work that one might call a "scientific textbook," yet I am criticized for not doing so when it was never my intention.

The ACA has the right to submit each chapter for peer review, but I would like to review the list of those considered my peers in the development of an equal number of books for the field. The ACA may also submit the manuscript for professional editing of what is stated as my "distracting idioms." I run my manuscripts through three different computer grammar and spelling checkers before I submit them to a professor of English at the University of Oklahoma. My mentor frequently reminds me that one must keep in mind that grammarians are not always in agreement- each has their personal preferences. That does not make another style right or wrong.

If during the reviews proposed a misspelling is found or a verb number is in error, I would be pleased to have a correction made. However, as author of the manuscript, I retain my right as author to approve or disapprove prior to publication any proposed change made to the submitted manuscript. Nothing may be published under my name without my prior knowledge and consent.

In regard to ACA marketing of my books, last year I called 14 DCs at random from the membership directory and asked them if they could just name the topics of (not specific titles of) three books out of the many published by the ACA. All failed. The most anyone had any knowledge of was two: two they had bought, and the doctors were happy with their purchase. Try this test yourself, and you will soon realize that this mess is just headquarters' stratagem of finding a means to disguise their lack of effort in educating the field of what is available.

In your topic "Current Projects," you state that 60% of my references are dated "pre-1980." You were dismayed. I was surprised to see that as many as 40% were post-1980. As I describe in my proposals, I begin each new book with core references from my databank and library. I have found that about 85% of my search for "new" data is unfruitful (but must be done). Yes, if somebody reports something in 1993 that another investigator reported in 1973, I suppose I could update the reference. But why? How would this aid the targeted reader and his or her patients?

Would the Board prefer that I annotate Gray's Anatomy when I describe the talus in ankle function, as does Dana Lawrence? Yes, it's true, Gray's affirms that the talus is a bone in the ankle. I'm not sure such annotation will be an aid in treating the sprained ankle of Mary Anderson in Topeka. Of course, such

(3)

"scholarly" references would add another 50 pages to a book- and to boost the editorial and manufacturing costs $10-$12 per book. Is this what the current Board desires?

Every criticism that has been directed against my books (Daly is easy to recognize) can equally be aimed at Merk's Manual - the most successful book ever published in the history of health care. I'm honored by the comparison. I'll opt for clinical substance over scholarly chimera anytime.

Regarding "Future Undertakings," I would never consider a contract based on a straight royalty basis. This is typical solely for some unestablished part-time authors. For the four books I authored that were published by Williams & Wilkins, I received without negotiation an advance against potential royalties that was based on the same scale used in proposals to the ACA. No established author would be so stupid as to accept a straight royalty basis. He or she has no control over the book's marketing success.

I assume from the comments in your letter of the 14th that the ACA does not wish to act on its option to publish HANDBOOK OF CLINICAL SIGNS AND REFLEXES, 1ST EDITION or SPINAL BIOMECHANICS AND ERGONOMICS, 1ST EDITION. I have waited a year for this decision: a length of time approaching discourtesy. May I now feel free to submit these proposals to other interested parties for bid on or near May 1, 1993?

Sincerely,

Dick

R. C. Schafer, DC, FICC



Note: No answer received.




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