Mercury – Legal Highlights

Some interesting things are happening on the legal front. The law suits against dental manufacturers of amalgam and the American Dental Association are in progress, and I am sure there will be many more.

In one case, a dentist, Dr. Barnes sued the Kerr Corporation, the nation’s largest manufacturer of dental amalgam.

Dr. Barnes claims that he was injured due to his daily exposure to the mercury fillings he placed and removed for his first ten years in practice. Suit was filed in Federal court in 1999 (too bad it takes so long for cases to wind their way through the court system).

An important precedent came out of an early ruling with respect to this suit. Cases were always dismissed with the court saying that the plaintiffs supporting science was not valid.However, here they ruled that the supporting science was valid and reliable. This will make it much more difficult for cases to be dismissed in the early stages.

Recently Dr. Barnes lost this case.

However, in his loss there may be a victory for the greater good. Let me explain. Kerr Corporation said that its warning about mercury was adequate to protect them from a product liability suit. Dr. Barnes argued that its warnings only referred to mercury not the mixed dental amalgam.

Yes, Dr. Barnes knows mercury is dangerous, but in dental school he was taught that mercury is no longer dangerous when mixed with the other metals to create an amalgam which renders the mercury harmless. (This is still the ADA mantra). However, the Federal court ruled that the warning label was sufficient to warn Dr. Barnes about the dangers of the mixed amalgam. It lists different possible symptoms and illnesses as well as the “skull and crossbones”. Also, Kerr does not claim that the zinc, copper, silver and tin mixed with the mercury will “neutralize the danger (of the mercury) while the dentist is working with the product.”

An appeal for rehearing was filed. However, if this ruling stands, it will become legal precedent. This can have profound effects.

For one, how will the ADA be able to say that mixed amalgam is safe – the court ruling with reference to the label implies that the mixed amalgam is as dangerous as mercury itself.

Also, under the “learned intermediary” doctrine, a doctor must inform patients of manufacturer’s warnings with reference to products. Therefore dentists may be obligated to inform their patients about the dangers of amalgam. This will make it harder for state dental boards to attack and silence dentists for speaking about the dangers of mercury fillings in their office.

In another case, in 2004,Jessica Kerger, filed a personal injury suit.

She sued amalgam manufacturers, the ADA and the Ohio Dental Association for the negative effect her mercury fillings had on her health, resulting in disability. In trying to have the case dismissed, some parts were thrown out but key claims were kept in such as, “fraud, misrepresentation and negligent claims to a third party.” So this case will continue. I guess in about five years we will know the outcome.

At least the cases are not being dismissed as so many were in the beginning.

Another interesting aspect of Kerger’s case involves the ADA and their insurance coverage. The ADA’s insurance carrier during the period Mrs. Kerger says she was harmed wasFederal Insurance Company. They sued the ADA charging that any conduct by the ADA that would have hurt Jessica Kerger was deliberate and intentional and therefore not covered by its insurance policy.

Think Federal Insurance Company is worried about this one case or are they worried about the future and possible liability?

Meanwhile, back in Connecticut…

The head of the Connecticut State Environmental Protection Agency, Gina McCarthy, ruled that it was not the intent of the legislature to ban amalgam fillings. The Zero Mercury Bill was meant to deal with mercury not the mixed product of amalgam.

McCarthy did however recommend that dentists be required to post a sign in their office that amalgam fillings are 50% mercury.

On September 26th, the New Haven Register newspaper, in an editorial, called for the ban of the so-called silver fillings.

They quoted state representative, Richard Roy, who said that it was the intent of the legislature to ban the mercury fillings.
Various consumer groups are going to court over the issue. Consumers for Dental Choice is leading the attack. Funds are desperately needed to fight this battle and donations are encouraged. Go to their website ToxicTeeth.org for more information.

© 2005, Mark A. Breiner, DDS

The information presented is for educational purposes only. You should consult a qualified dentist or health practitioner for diagnosis and treatment.