SUMMARY JUDGMENT DENIED IN PROPOSITION 65 DENTAL AMALGAM FILLING LAWSUIT
In Consumer Cause, Inc. v. SmileCare (2001) 00 CDOS 6929, a consumer group sued a dental plan for failing to warn its patients as required under Proposition 65, that the amalgam fillings it used contained mercury. The dental plan obtained summary judgment, but the appellate court reversed, holding that the plan failed to make a prima facie showing of undisputed facts that supported each element of its affirmative defense that it did not have to provide any warnings under a statutory exception to Proposition 65.
Proposition 65 requires businesses to warn customers about exposure to carcinogens and reproductive toxins present in consumer transactions. However, the statute also states that warnings are not necessary if the business can show that there is no observable effect on reproduction even at 1,000 times the level of exposure at issue. To do this, the business must establish the maximum dose level at which a chemical has no observable reproductive effect, and the level of exposure in question.
In its answer to the complaint, the dental plan alleged as an affirmative defense that it did not have to warn consumers because of the aforementioned statutory exception. The dental plan then moved for summary judgment based on this affirmative defense and submitted a declaration from a dentist that stated that standard amalgam fillings have been used in this country for 150 years and is approved by the ADA. The dental plan also argued that in responses to its requests for admissions, the consumer group admitted that it did not have any evidence that use of amalgam fillings caused an observable effect at 1,000 times the level in question.
The court held that the declaration was insufficient to establish a prima facie showing of undisputed facts that there was no observable effect on reproduction even at 1,000 times the level of exposure at issue, or that it established the maximum dose level at which mercury in amalgam fillings have no observable reproductive effect, or the level of mercury exposure in amalgam fillings. The court also held that the admissions by the consumer group that it did not have evidence to refute the affirmative defense could be used as a ground to grant summary judgment based upon the affirmative defense.
Consumer Cause v. SmileCare is of some interest to dental plans and providers because it contains a lengthy discussion of the debate over dental amalgam fillings, and the application of Proposition 65 and the "no observable effect level" exception to Proposition 65 to this debate.
