Telephonic Court Ruling Shapes Landmark Trial on the Selection, Approval, and Use of an Untested Fluoridation Chemical Containing Arsenic and Lead.

Business Editors/Health/Medical Writers/Environment Writers

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SAN DIEGO--(BUSINESS WIRE)--March 5, 2004

In a case focused on the selection by the City of Escondido, and approval by the California Department of Health Services, of an untested fluoridation substance containing lead, arsenic and other contaminants to be added to Escondido's public water supply, Judge Jacqueline M. Stern of San Diego County (North) Superior Court has issued a telephonic ruling denying motions by the City and State for Summary Judgment, moving the case beyond a final hurdle toward trial, now scheduled for April 9, 2004.

Judge Stern's rulings confirm the decisions made by the previous judge in the case, Dana M. Sabraw, who rejected four prior efforts to have the case, filed by consumers of Escondido water in 2001, dismissed.

Rejecting arguments by both the City of Escondido and California Department of Health Services, Judge Stern ruled that neither Defendant had met their burden of proof to dismiss the case and, "Plaintiffs have pled sufficient facts to allege that Defendant's plan to fluoridate the City's water supply with purportedly contaminated HFSA {hydrofluosilicic

acid} violates their right to "life, liberty, health or property."

This case proceeds where other cases throughout the U.S. have failed for more than 20 years, as courts have previously ruled that the public policy of fluoridation is a lawful act by representative bodies such as city councils, water boards and state legislatures.

In the late 1970s and early 1980s, decisions made by Pennsylvania, Illinois and Texas lower courts, after extensive expert witness testimony, concluded that, at 1 part per million in the water supply, fluoride aggravated existing illnesses, caused adverse health effects, and, for two rulings, resulted in a higher incidence of cancer deaths; however, while leaving the health effect findings intact, appellate courts ruled that the beyond-a-reasonable-doubt standard used by the lower courts in the case of representative body decisions should be elevated to "no controversy," meaning that if an elected body had only one expert witness that supported their decision, that was sufficient to preserve their decision against all other evidence.

This case of Macy vs. City of Escondido and California Department of Health Services does not make a facial challenge to their public policy decision to fluoridate, but instead challenges the selection, approval and use of the substance as it is applied in Escondido, asserting a Constitutional complaint that a preponderance of the evidence will show that there is a reasonable certainty that the Plaintiffs and others so-situated will be harmed, that the addition of the specific fluoridation substance containing lead and arsenic fulfills no legitimate government purpose, and that the introduction of hazardous waste from the phosphate fertilizer industry into public water is unlawful under California's Penal Code.

Judge Stern, as Judge Sabraw did previously, overruled claims by the State and Escondido that fluoridation is a lawful act and exempt from claims of Constitutional infringements on the rights of the plaintiffs and conformance to California Penal Code.

Both the City of Escondido and the Department of Health Services filed for multiple specialized dismissals (demurrers) of the case, including claims by Escondido that the City had not made a final decision to fluoridate, had not chosen the fluoridation substance that was being challenged, was not spending taxpayers funds on the project, and that the City was being compelled by the State, all of which were refuted by City Council meeting records, documents received through discovery, and depositions of Defendant's witnesses.

The State, in its response, argued that the Department of Health Services does not choose the substance used to fluoridate, but merely "permits" a substance of the City's choosing, thus undermining many of the City's contentions.

The City of Escondido, No. 4 on the State's priority list for fluoridation, in 1999 enacted a municipal ordinance that prohibited the addition of any substance to the water supply to treat humans rather than the water, including fluoride. After a change in the makeup of the City Council, in 2001 the Council voted 3 to 2 to repeal the protective ordinance and begin fluoridation.

While the City of San Diego still has a citizen-initiated ordinance that prohibits fluoridation and has rejected funds for proceeding with fluoridation, other communities throughout the nation are focusing on the quality of the substance to be used, with the City of Santa Cruz, Calif. rejecting all mass medication; the Cities of Redding and Watsonville, Calif. prohibiting water additives to treat humans that have not been approved by the U.S. FDA for the health claims made, as well as limiting contaminants; and the most recent decision by Honolulu that combines both aspects of rejecting mass medication through the water supply, and in case of superseding State law, provides for product quality control similar to the California initiatives.

While a lawsuit filed by the City of Watsonville against the California Department of Health Services concerning the State's attempt to compel Watsonville to fluoridate in the face of the City's citizen-initiated quality control ordinance is touted by proponents of fluoridation as the ultimate "test case," little attention is focused on the contrary positions claimed by the Department of Health Services in Macy vs. City of Escondido.

The City of Escondido has admitted that the product that they intend to use to fluoridate contains lead and arsenic.

The Court also decided on the California Department of Health Service Motion to Vacate Jury Trial, ruling that aspects of the trial will be decided by jury, and other aspects will be decided by the judge.

Judge Stern granted the Plaintiffs a right to jury trial on disputed factual issues raised in Plaintiffs' Constitutional claim and a right to jury trial on all legal remedies sought in this action; while reserving judgment to the Court as to the legal issues raised by Plaintiffs' Constitutional claim and as to Plaintiffs' equitable remedies.

If oral argument to contest the ruling is requested it will be heard Friday, March 12, 2004 at 1:30 p.m. in Department 27, formerly Department 24 (San Diego Superior Court, North County).

Previous rulings, documentation of Congressional investigation on fluoride, and legal history of other fluoridation cases can be accessed at http://www.Keepers-of-the-Well.org.

The Court's telephonic ruling is accessible until 12:00 a.m., March 10, 2004 by entering case number GIN015280 at: http://www.sandiego.courts.ca.gov/superior/online/telerule.html.