Legal Brief: American Dental Association Gets Brought to Justice
ADA Gets “Kiss of Death”…
Opinion by Consumer Advocate Tim Bolen
Sunday, September 18th, 2005
It had to happen sooner or later. The ADA (American Dental Association) has had a long run – with the posse chasing them. I’m surprised they’ve lasted this long.
They’ll scream, they’ll holler, they’ll whine, they’ll whimper. They’ll threaten, and they’ll lash out – but in the end it won’t matter – the American Dental Association is finished. Nail their doors shut. Board up their windows. It’s soon to be all over for them.
The ADA, as we know in the Health Freedom Movement, stateside, is an organization designed to protect the status quo in US dentistry. Never mind that the methods they protect are from two centuries ago.
We also know that a significant part of the ADA’s annual income comes from “product endorsement” (about 42%), and I have a strong feeling that to encourage that “endorsement,” the ADA uses its contact with State Dental Boards, to prosecute Dentists that use products NOT endorsed – leaving a distinctive chill on the market.
I can’t help but wonder if this type of operation were being performed, say, in the Bronx against “mom & pop” small businesses, it’d be run, by guys named “Big Louie, Hatchet Face, Stabbin’ Jack, Dirty Guido, Johnny Leg-Breaker, and Don Alfresco,” and the Feds would be wiretapping corner phone booths.
Isn’t this called a “protection racket?”
Keep in mind that some of the things they protect, and get income from, include mercury amalgams, flouride in water, and root canals.
But that little bit, above, is just window dressing for the incredible story I’m about to tell you. Sit up, because if you don’t – in a minute you’re going to spill your health drink all over your freshly washed hemp shirt.
There’s six important Court actions ongoing in the United States (US), all involving the US dental establishment, that cumulatively represent the end of the “status quo” in dentistry, and all that it has protected. As we already know, US dentistry lags far behind the rest of the world, with US dentists acting more like automobile body shops than health professionals – focusing on appearance over health.
The first important Court action is in Tennessee. It’s a lawsuit called “Barnes v. Kerr,” and it is an unusual case. In it, Barnes, a dentist, sued Kerr-McGee, a manufacturer of mercury amalgam for, as DAMS leader Leo Cashman says:
Barnes, who used mercury amalgam fillings for the first ten years of his practice, alleged that he had been poisoned by the mercury in the amalgam fillings that he placed and removed on a daily basis. In 1999, Dr Barnes brought a products liability case against Kerr Corporation, the manufacturer of the only amalgam products Barnes ever purchased. Barnes retained Jim Love and Robert Reeves, attorneys most knowledgeable about mercury amalgams, to represent him. Dr. Mark Richardson, PhD, F.L. Lorscheider, Ph.D., Gary Ordog, M.D., Robert Granacher, M.D., George Colpitts, D.D.S., and other expert witnesses testified on Dr. Barnes’s behalf concerning the various scientific, medical, and dental issues that arose in the case. Kerr challenged the admissibility of Dr. Barnes’s scientific and medical testimony on the basis that it was not supported by valid and reliable published science. However, the trial court ruled that the supporting science was valid and reliable and overruled Kerr’s motion.
Kerr filed an ensuing motion for summary judgment claiming that its warnings were adequate as a matter of law. Kerr also argued that the vast majority of Barnes’s exposure was not attributable to Kerr’s products, but to amalgam fillings that Barnes removed. Because the appearance of an amalgam filling will not reveal the filling’s manufacturer, Kerr argued that Barnes could not prove that Kerr’s products actually injured Barnes. The District Court granted Kerr’s motion. The judgment was appealed to the 6th Circuit U.S. Court of Appeals, but on August 11th, 2005, the Court of Appeals upheld the District Court’s ruling.
If the Sixth Circuit Court’s opinion is published, Barnes v. Kerr may profoundly change the legal landscape regarding amalgam. Barnes argued that Kerr’s warnings addressed only mercury—not mixed dental amalgam. Barnes admitted that he was aware of mercury’s toxicity, but testified that in dental school, he was taught that mixed dental amalgam was safe and the mercury rendered inert. However, the Sixth Circuit’s opinion held that the warning sufficiently notified Barnes that mixed dental amalgam was dangerous. The Court noted, “the label on each jar of dental amalgam capsules featured not only a skull and crossbones next to the word “Poison,” but also a list of illnesses, including “bronchiiolitis, pneumonitis, pulmonary edema [and] redness and irritation to [the] eyes and skin.” Likewise, the Court noted, the MSDS (material safety data sheet, provided to all dentist buyers) warned that chronic mercury exposure could lead to “nervous irritability, weakness, tremors, gingivitis, erethism and graying of the lens of the eye.” Further, the Court ruled that the other ingredients mixed in amalgam with the mercury – silver, copper and tin – are not claimed by the manufacturer to “neutralize the danger while the dentist is working with the product…”
What’s important is the following:
1) Under the “learned intermediary” doctrine, dentists are obligated to pass along manufacturer’s warnings to their patients. In light of the ruling in Barnes v. Kerr, dentists will be required to explain to their patients the dangers acknowledged in Kerr’s warnings.
2) Arguably, state dental boards will no longer be able to prohibit dentists from communicating the dangers of mercury amalgam to their patients.
3) In order for a dentist to obtain a patient’s informed consent, the information given to a patient concerning amalgam will change very dramatically.
4) The Court’s opinion will provide a direct challenge to the ADA’s proclamations of amalgam safety.
5) In formulating a successful legal strategy, Kerr may have impaired the market for its dental amalgam product.
The second important case is in Ohio. It’s called “Kerger v. ADA, et al.” In this case, a woman, Jessica Kerger, sued the ADA, The Ohio Dental Association, and two mercury amalgam manufacturers, for, as Leo Cashman says:
A personal injury lawsuit against them by Jessica Kerger, an Ohio woman, and her family is gaining traction in the courtroom. Judge Nancy A. Fuerst has denied a detailed “motion to dismiss” by the defendants, two dental amalgam manufacturers, the American Dental Association (ADA) and the Ohio Dental Association (ODA). In her complaint, Jessica Kerger alleges that she has suffered neurological deficits and hormonal function problems relating to mercury from her dental amalgam fillings. In 2004, Kerger sued amalgam makers and the ADA and ODA for personal injuries resulting in serious disability. Some parts of the Kerger complaint were dismissed by the court, but key claims were not dismissed, including “fraud, misrepresentation and negligent claims to a third party.”
“The stuff that really matters stayed in,” Jessica Kerger said. The ADA has petitioned Judge Fuerst to clarify her ruling and say why she kept the key charges in court.
Normally, in a case like this (Kerger) I’d shrug my shoulders and “wait and see,” for I know that the ADA will trot out all of it’s usual arguments. Like the tobacco industry, the ADA has been defending these things for years – and knows how to proceed. Which brings us to the third case…
The third important Court action is in Illinois – and it is related to the Kerger case. It’s called “Federal Insurance v. ADA,” and it’s “the kiss of death,” no matter how it’s decided, for the ADA. For, Federal Insurance was the ADA’s insurance carrier during the time Jessica Kerger was being injured. They are no longer their insurer.
Federal Insurance, a division of the CHUBB group, is as Leo Cashman says:
Meanwhile another court will have to determine whether the ADA has any insurance coverage in the Kerger case. The ADA’s former insurer, Federal Insurance Company, has sued the ADA charging that any ADA conduct that would have hurt Jessica Kerger (e.g., caused her to mercury poisoned by dental amalgams) was deliberate and intentional and therefore not covered by its insurance policies with Federal (Federal Insurance provided insurance coverage for ADA from 1965 until January 1, 2000)… The ADA has been the industry’s biggest defender of the dental amalgam (mercury) filling, even going so far as to hold that it is “unethical” for a dentist to replace an amalgam filling out of concern for the toxicity of mercury. It has also obtained revenue for giving its Seal of Approval for the amalgam product sold by the various dental material manufacturers. Without Federal Insurance by its side, ADA would have to be on its own for its defense in the Jessica Kerger case and would be on its own to absorb potentially huge liability lawsuit damages in the Kerger case and others like it.
Federal Insurance Company, established in 1901, is a division of the Chubb Group of Insurance Companies, one of the world’s top global insurance companies. Chubb has over 100 offices, in 30 countries. Even by itself, Federal itself has over $23 billion in assets and a net worth close to $8 billion. If it is now taking an adversarial role towards the ADA and its conduct regarding amalgam, it appears to have the lawyers and the deep pockets to press its case.
The fourth important case is in Colorado – and I’ve spoken about it many times. It’s called the “Cavitat v. Aetna” Federal Lawsuit, which, is by the way, proceeding along nicely. Aetna countersued Cavitat a while back, claiming a whole host of strange things. In it they called me a “Paid Troublemaker,” among other things, and for some reason, every time I read their claim (which, I admit, isn’t often), I have to laugh – even Aetna has problem finding good attorneys, I guess, but there’s a Motion for Dismissal in front of the Judge – so we’ll see what happens.
From reading the Court documents available through the Pacer system on the Cavitat case, it looks as though Aetna’s BIG MOVE is to hide the transcript, from the public, of Robert S. Baratz MD, DDS, PhD’s (“Bobbie Bogus”) deposition in this case.. For what-ever reason, Aetna seems to want that information withheld. Knowing Baratz, and the way he testifies when he’s under fire, his testimony was probably so damning, Aetna’s CEO has probably already written Cavitat a check – they just haven’t delivered it yet… For the most part Aetna relied on Baratz’s statements to attack Cavitat – and that’s why Cavitat sued them.
Baratz, you may remember, made history in a Wisconsin hearing room, a few years ago – when he sweat through his suit while being examined in a three day “credibility hearing,” I helped organize. He also, in Florida, before that, came running into a hearing room shrieking like a girl, claiming “My life is in danger. I need police protection, blah-blah-blah, squeak, squeak, squeak…” just because I was in the building. Then there was that hearing in Boston last June where I showed up…
I FULLY understand why Aetna would want to suppress what Baratz says. That is EXACTLY the right thing to do. BUT, Aetna is more than a little late. They should have suppressed what Baratz, and his “quackbuster” cronies, said about Cavitat BEFORE they put all that crap on their website – the stuff they got sued for.
Now It’s time for Aetna to write a check – or face a Colorado jury, bringing shrieking, sweaty, Bobbie in as their witness. (Insert laughter here). They won’t be able to hide this clown from the jury… Baratz is the best witness Cavitat has – and supposedly, he’s Aetna’s witness…
The fifth important case is in Massachusetts – and I’ve spoken about it only once before. It was the June 6th hearing in Boston story and the case surrounding it. This’ll be the very first time that anyone has outright challenged the use of a quackbuster, like little Bobbie Baratz, as the primary, or only, witness, in a dental case. This case challenges the “ultimate” authority of the ADA. Simply put, so far, several State of Massachusetts employees have been sued for using a known crackpot dirtbag like Bobbie Baratz, and who he represents, as a witness against a reputable dentist. I’ll let you know what happens.
But here’s a little tidbit to think about – the State of Massachusetts did little, if any, checking on Bobbie’s veracity, or his so-called expertise. For instance, Bobbie testified for about six and a half hours about how this dentist improperly installed a dental bridge in a patient’s mouth. On cross-examination Baratz was forced to admit that since 1986 (where in another case he claimed he “no longer practiced dentistry”) he had not installed any bridges. In fact, he has NEVER, EVER, installed a bridge. When asked about how he felt he could testify “as an expert” on a subject he knew NOTHING about, he replied “I researched it…”
Personally, I do not understand why Baratz has survived as a so-called “expert witness” this long. Anyone, and everyone, who uses him should be sued for all that they may own.
The sixth important case is in Wisconsin – and I’ve spoken about it many times. It’s the Vander Heyden case. This a case where the dental establishment simply wanted to flex its muscles. They were going to show the upstart “Biological Dentists” just who had the biggest horns in the pasture. So, without the benefit of the law on their side, or expertise, or much of anything, including a prosecutor who clearly didn’t even know how to organize a case, they charged Rick Vander Heyden with “practicing beyond the scope of Dentistry,” because he once used an electronic device, along with regular diagnostic tools, to help him try and figure out just what was causing a patient a particular problem.
Well, the prosecutor didn’t even bring a witness into the Courtroom at all – none – and certainly no expert witnesses. But that didn’t deter the actual Dental Board from taking Rick’s license away from him. They did. Naturally, it went to Court, and a few days ago, as I expected, the Court reversed the Board’s ruling, staying the revocation – and scheduled a hearing. My feeling – the prosecutor didn’t put on a case in front of the Administrative Law Judge because he already had a “Decision” from key Dental Board members in his pocket.. Vander Heyden was targeted. Now, of course, things have changed.