Court Clarifies Defendant's Burden of Proof

On August 9, 2001 the Second Appellate District, Division 2, of the California Court of Appeal issued its published opinion reversing a summary judgment obtained by a dental organization in a Prop 65 enforcement action over dental amalgam containing mercury.   The decision is the first reported case to lay out the parties' burdens of proof in a Prop 65 case involving the exposure assessment exemption.  The decision was also notable for the stinging dissent of Justice Miriam Vogel, who accused the majority of having "endorsed and encouraged a form of judicial extortion." Download the opinion [doc/pdf].

As explained by the court, summary judgment was granted by the trial court on the following evidence produced by the defendant:

"(1) Consumer Cause's discovery responses, which admitted that Consumer Cause did not have any evidence to dispute the applicability of the exposure exemption; and (2) the declaration of a dentist, Dr. Louis Amendola, who stated that standard amalgam fillings contain trace amounts of mercury. Dr. Amendola also said that silver fillings have been used safely in the United States for 150 years and are approved by the ADA. In their moving papers, defendants admitted that, for purposes of summary judgment, they use amalgam fillings containing mercury."

The court held that the declaration failed to meet the exposure assessment because Dr. Amendola was not qualified in risk assessments, and his testimony that the product was "safe" did not set forth a quantitative risk assessment.  Quoting the Attorney General's amicus brief, the court stated, " '[W]hat is at issue in the exemption is not the "safety" of the product causing the exposure, but rather whether the exposure is one thousand times below the "no observable effect" level.' "

Also of no relevance to the court was the fact that Consumer Cause responded that, despite a reasonable inquiry, it lacked sufficient information or knowledge to admit " 'that exposure to mercury at one thousand times the level you contend defendants have exposed individuals to will have no observable effect on the individuals,' " as well as the fact that Consumer Cause admitted that it did not have any evidence that defendants' use of mercury had caused injury to anyone, nor did it have evidence concerning the level of mercury to which defendants had allegedly exposed individuals.    The court ruled that "Consumer Cause did not have to offer any evidence disputing the applicability of the exposure exemption until defendants made the requisite initial showing."

Justice Vogel's dissent was best summarized by the introductory paragraphs:

"According to the majority opinion, lawsuits under Proposition 65 can be filed and prosecuted by any person against any business based on bare allegations of a violation unsupported by any evidence of an actual violation -- or even a good faith belief that a defendant is using an unsafe amount of a chemical known by the state to cause cancer or reproductive toxicity. Unconcerned about the practical effect of their decision, and undeterred by a plaintiff's admission that it has no evidence at all to suggest that the defendant is using an unsafe level of any listed chemical, my colleagues have endorsed and encouraged a form of judicial extortion.

"Here is how it works (it certainly appears to be what was done in this case). Pick a dentist or doctor, any dentist or doctor (but preferably one with a deep pocket). Visit the dentist's or doctor's office. If you don't see Proposition 65 warning signs on the walls or counters, go to the nearest courthouse, file a complaint, allege a failure to warn, and ask for $2,500 for each day the dentist or doctor has failed to give the required warnings. Don't be concerned when the dentist or doctor answers and alleges as an affirmative defense that he is exempt from the warning requirements because he uses only trace amounts of the chemical, and certainly not enough so that anyone's exposure to the chemical is 1,000 times the level that will result in an observable effect. Don't worry when the dentist or doctor sends you some interrogatories and requests for admissions -- go ahead and admit that you have no evidence about the level of the chemical he uses (and thus no reason to believe that he is in violation of the law), and admit that you do not contend that exposure at the level used by the dentist or doctor will result in any observable effect.

"The dentist or doctor won't be able to get out of the case by a motion for summary judgment based on your admissions. Instead, he'll have to commission an 'assessment' to prove that his level of use is safe, and he will have to pay for the kind of 'assessment' done by the State of California when it determines that a chemical should be added to the Proposition 65 list. How many thousands of dollars will that cost? I don't know, but I do know that, whatever the cost, the end product will not guaranty a judgment for the defense. What's a dentist or doctor to do? Settle with the plaintiff, of course. Save the cost of the assessment. Save the legal fees. Get rid of the case.

"I'm not making this up. My colleagues did. . . ."  (Footnotes omitted.)

This page last updated 9/15/02