Thursday, September 18, 2003
High Court to Decide Whether Suit Over Dental Fillings Was a SLAPP
By a MetNews Staff Writer3
The California Supreme Court, which a year ago issued three opinions defining the scope of the state’s anti-SLAPP law, decided yesterday to hear yet another case on the subject.
The justices voted to grant review in Kids Against Pollution v. California Dental Association, 108 Cal.App. 4th 1003, in which the First District Court of Appeal’s Div. Three ruled that a pair of suits by individuals and groups accusing the California Dental Association of unfair business practices in connection with its advocacy of mercury amalgam fillings implicated the CDA’s free speech rights.
Reversing a San Francisco Superior Court judge, the panel ordered that the actions be stricken as strategic litigation against public participation under Code of Civil Procedure Sec. 425.16. The plaintiffs, the court held, failed to establish a probability of success on the merits.
The plaintiffs contend that the CDA and the American Dental Association use various means to hide the dangers of mercury fillings from patients, including advising dentists not to mention “mercury” in their discussions with patients, and failing to disclose that the ADA derives financial benefits from its endorsement of amalgam products.
The CDA and ADA endorse the fillings as a relatively inexpensive means of making fillings sturdy and tough. Critics note that mercury has been classified as a reproductive toxin under Proposition 65, and cite studies linking it to arrested fetal development.
Regulators have generally endorsed the dental groups’ position that use of the amalgam is safe in the absence of known allergies to a particular component.
In Kids Against Pollution, the Court of Appeal agreed with the CDA that it has a First Amendment right to advocate its views on the use of mercury, and that the lawsuits threatened that right. The court held that the plaintiffs’ causes of action were based in significant part on activity in furtherance of that right, and that even if those claims were also based in part on unprotected activity, the burden still shifted to the plaintiffs to establish a probability that they would prevail on the merits.
The decision is one of several that have been criticized by lawmakers and others as a reversal of the intent of the anti-SLAPP law, originally advocated as a means of protecting public policy advocates from suits by well-heeled commercial interests intended not so much to obtain damages as to deter legitimate advocacy.
Those criticisms led to the enactment of SB 515, signed into law by Gov. Gray Davis last week. The legislation, effective Jan. 1, will generally preclude application of the anti-SLAPP law to suits brought on behalf of the general public or to large class actions in which the plaintiff’s financial interests are proportionate to those of the other class members.
Chief Justice Ronald M. George and Justices Joyce L. Kennard, Kathryn M. Werdegar, Janice Rogers Brown, and Carlos Moreno voted to grant review.
Copyright 2003, Metropolitan News Company