Metropolitan News-Enterprise


Monday, August 13, 2001


Page 1


Defendant Has Burden of Persuasion in Claiming Exemption From Proposition 65, Court of Appeal Rules

Dissenting Justice Vogel Accuses Colleagues of Sanctioning ‘Judicial Extortion’


By KENNETH OFGANG, Staff Writer/Appellate Courts


 A defendant claiming exemption from Proposition 65 on the ground that its products aren’t harmful to humans, even at 1,000 times the level of toxins actually present, has the burden of presenting evidence to support that claim, this district’s Court of Appeal has ruled.

Thursday’s ruling, reinstating a “private attorney general” action against dental clinic operators, came in an opinion by Justice Robert Mallano of Div. One, joined by Presiding Justice Vaino Spencer.

Justice Miriam Vogel vigorously dissented, saying Mallano and Spencer had “endorsed and encouraged a form of judicial extortion.”

The suit was brought by Los Angeles attorney Morse Mehrban, who has brought or threatened numerous suits under the initiative, several of which have been the subjects of prior appellate opinions. 

Vogel, in a footnote to her dissent, cited a law firm’s “client alert” calling Mehrban’s organization, Consumer Cause, Inc., a “Proposition 65 bounty-hunter.” The alert noted that Consumer Cause had sent out hundreds of notices of intent to sue regarding implanted medical devices, settling one case for a $25,000 “donation” plus $25,000 in attorney fees.

Proposition 65, the Safe Drinking Water and Toxic Enforcement Act of 1986, requires most companies doing business in California to warn the public if any product made, sold, or used by the company includes a chemical that causes cancer or reproductive toxicity.

It also prohibits businesses from discharging toxics into the drinking water supply or from knowingly exposing the public to toxics, except where specifically permitted by other laws. It specifically declares that “[n]o person in the course of doing business shall knowingly and intentionally expose any individual to a chemical known to the state to cause . . . reproductive toxicity without first giving clear and reasonable warning to such individual.”

The warning requirement is subject to several exemptions. One provision says that no warning is required if “the exposure . . . will have no observable effect assuming exposure at one thousand (1,000) times the level in question.” The “level in question” for a particular substance, known as the “no observable effect level” or NOEL, must be determined according to regulations adopted by the state Office of Environmental Health Hazard Assessment.

Public prosecutors, including city attorneys, are authorized to sue for penalties , which accumulate daily as long as the violation is unredressed, and/or for injunctive relief on behalf of the general public. A private plaintiff may sue if public prosecutors do not seek to intervene within 60 days of being served with notice of an alleged violation.

Thursday’s ruling reinstates Mehrban’s suit targeting dentists over their use of dental amalgam, or “silver fillings.” The use of amalgam has been controversial for over 100 years because it includes mercury, which has been classified as a reproductive toxin under Proposition 65.

Mercury helps make fillings sturdy, tough, and relatively inexpensive. But it has been associated in some studies with arrested fetal development.

The American Dental Association, the U.S. Public Health Service, and the Food and Drug Administration have endorsed the use of amalgam in the absence of known allergies to a particular component.

Mehrban sued Community Dental Services, Inc. and SmileCare in February of last year. The defendants pled an affirmative defense based on the exposure exemption.

Los Angeles Superior Court Judge Aurelio Munoz granted summary judgment after Mehrban admitted he had no evidence that the defendants’ fillings contained more than 1/1,000 of the NOEL for mercury, and the defense presented an expert’s declaration attesting to the safety of silver fillings despite their containing trace amounts of mercury.

But Mallano said the trial judge erred in placing the burden of production on the plaintiff. Since the defendants were relying on an affirmative defense, the justice said, they have to present the necessary scientific evidence to obtain summary judgment on the basis of the exposure exemption.

The defense expert’s declaration was “woefully inadequate,” Mallano said, because it didn’t mention the NOEL and “ignore[d] the standards imposed by” Proposition 65.

The ruling “is just plain wrong,” Vogel said, and will force defendants in Proposition 65 cases to settle with the plaintiffs solely to avoid the costs of assessments. The plaintiff, she argued, must have at least a reasonable belief that the defendant is exposing the public to an unacceptable level of toxins.

The dissenting justice reasoned that by admitting a lack of evidence concerning any level of exposure to mercury by the defendants, and by stating that it was not contending that exposure to mercury at 1,000 times the level used by the defendants would result in observable harm, the plaintiff was conceding the affirmative defense.

“I am not suggesting that…the burden is on a plaintiff to show that the levels of exposure are sufficiently high to require warnings,” Vogel explained. “…But I am most definitely suggesting that, before putting every random dentist and doctor in California to the extraordinary expense involved in preparing the ‘assessment’ required to prevail in this kind of lawsuit, we ought to require something more than the plaintiff’s naked assertion of an absolute right to engage in this kind of litigation.”

The defendants were represented on appeal by Randall J. Sherman and Adym W. Rygmyr of Stradling Yocca Carlson & Rauth. Deputy Attorneys General Edward G. Weil and Susan S. Fiering authored an amicus brief for the state in support of the plaintiff.

The case is Consumer Cause, Inc. v. SmileCare, B147727.


Copyright 2001, Metropolitan News Company