Consumer Cause, Inc. v. SmileCare (2001)

CONSUMER CAUSE, INC., Plaintiff and Appellant, v. SMILECARE et al., Defendants and Respondents.

[Opinion certified for partial publication. fn. *]

(Superior Court of Los Angeles County, No. BC225511, Aurelio Munoz, Judge.)

(Opinion by Mallano, J., with Spencer, P. J., concurring. Dissenting opinion by Vogel (Miriam A.), J. (see p. 477).)

COUNSEL

Law Offices of Morse Mehrban and Morse Mehrban for Plaintiff and Appellant.

Bill Lockyer, Attorney General, Richard M. Frank, Chief Assistant Attorney General, Theodora Berger, Assistant Attorney General, Craig Thompson, Edward G. Weil and Susan S. Fiering, Deputy Attorneys General, for the State of California as Amicus Curiae on behalf of Plaintiff and Appellant.

Stradling Yocca Carlson & Rauth, Randall J. Sherman and Adym W. Rygmyr for Defendants and Respondents. [91 Cal. App. 4th 457]

OPINION

MALLANO, J.-

Plaintiff filed this action, alleging a violation of the Safe Drinking Water and Toxic Enforcement Act of 1986, commonly known as Proposition 65. Plaintiff alleged that defendants, providers of dental care, violated the act by failing to warn employees and patients that standard amalgam fillings, also called "silver fillings," contain mercury and mercury compounds, which are reproductive toxins. The trial court granted defendants' motion for summary judgment, which was based on an affirmative defense.

We conclude that the trial court misapplied the burden of producing evidence in granting the motion. Defendants had an initial burden of production to make a prima facie showing that the affirmative defense applied. Because defendants made no such showing, the burden did not shift to plaintiff to raise a triable issue. Accordingly, we reverse.

The Dental Amalgam Controversy

Concern over the use of silver fillings is nothing new. "In dental offices around the world, cavities are treated by drilling holes in patients' teeth and filling the abscesses with a compound known as dental amalgam filling. Also known as 'silver fillings,' dental amalgam is composed of a mixture of 45 to 52 percent mercury, 35 percent silver, and varying portions of copper, zinc and tin. Mercury, a heavy metal, is used in the amalgam mixture [91 Cal. App. 4th 458] because, although it is liquid in its free state, when combined with other metals, it forms a paste that hardens within minutes and provides the mixture with strength and cohesiveness. Overall, amalgam is a popular material for filling cavities because it is strong, durable, and relatively inexpensive. Amalgam is used in about half of the 200 million cavity-filling procedures performed annually, while the other half of cavity fillings are done with such materials as gold, ceramics and plastics.

"The modern dental amalgam was introduced in 1812 by British chemist Joseph Bell as a silver paste, which was a combination of coins and mercury. In the United States during the 1800s, however, [the] concern of the American Society of Dental Surgeons regarding possible mercury toxicity led to mercury usage becoming an issue of malpractice. In addition, all Society members were forced to sign an oath not to use mercury-containing materials. Nonetheless, use of mercury fillings increased, because it offered dentists an economic advantage[,] and because the fillings were simple to use and durable in the mouth. By 1856, the American Society of Dental Surgeons was forced to disband due to dwindling membership caused by the debate over the mercury filling issue. In its place rose the American Dental Association ..., which was founded by dentists who advocated silver amalgam-mercury use in dentistry. [¶] ... [¶]

"Over the past few years, several studies have reported that dental amalgam fillings continuously leak small amounts of mercury into the oral cavity.... Vaporization of the mercury from dental fillings is further intensified by chewing, tooth brushing and consumption of hot liquids. After mastication or tooth brushing, it takes almost ninety minutes for the rate of mercury vaporization to decline to pre-chewing level. In addition, a greater number of fillings over a larger chewing surface area lead[s] to even higher levels of mercury.

"[S]tudies have demonstrated that brushing filled teeth increases the level of mercury vapor in expired air, and that when exposed to mercury, individuals inhale and absorb as much as 80 percent of the vapors. Even human autopsy evidence has indicated that brain and kidney tissues contain significantly higher amounts of mercury in individuals with mercury fillings, and the concentration of mercury in the brain of subjects with mercury fillings correlate[s] directly with the number of fillings present.

"Recent experimentation on sheep and monkeys suggests that dental mercury accumulates in all tissues on the adult and is at its highest level in the kidney and liver. In fact, human studies have recently shown an association between urinary mercury excretion and the presence of mercury fillings. [91 Cal. App. 4th 459] These results corroborate the results of human autopsy studies. Of particular interest, is the potential effect of mercury fillings on the unborn child. In studies where fillings were installed in the teeth of pregnant sheep, mercury amalgam was shown to cross the placenta and accumulate in the developing fetus within two days of the filling's installation. The mercury was found at the highest level in the fetal liver and the mother's milk, suggesting an additional form of transmission to newborns.

"During the past two decades, more concerns have been raised about possible adverse medical side effects from the mercury in dental amalgam fillings. It has been suggested that mercury exposure is responsible for a wide variety of systemic ill effects in some patients, including immune suppression, neurotoxicity, renal impairment, obstetric complications, multiple sclerosis and conditional symptoms such as headache, fatigue and depression." (Miller, Mercury Amalgam Fillings: Human and Environmental Issues Facing the Dental Profession (1996) 1 DePaul J. Health Care L. 355, 355-359, fns. omitted.)

"Very young children are more sensitive to mercury than adults. Mercury in the mother's body passes to the fetus and may accumulate there. It can also ... pass to a nursing infant through breast milk. However, the benefits of breast feeding may be greater than the possible adverse effects of mercury in breast milk.

"Mercury's harmful effects that may be passed from the mother to the fetus include brain damage, mental retardation, incoordination, blindness, seizures, and inability to speak. Children poisoned by mercury may develop problems [with] their nervous and digestive systems, and kidney damage." (Agency for Toxic Substances and Disease Registry (Apr. 1999) Chemical Abstracts Service No. 7439-97-6,