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Further Proceedings Postponed After Fluoride Trial’s Second Week

As the second week of a closely watched California fluoride case unfolded, Waters Kraus & Paul attorney Michael Connett and firm partner C. Andrew Waters took on the U.S. Environmental Protection Agency (EPA) on behalf their represented plaintiffs, Food and Water Watch, the Fluoride Action Network, Moms against Fluoridation and many others. In one of the first virtual federal bench trials in the U.S. amid the COVID-19 pandemic, Food & Water Watch Inc. v. EPA significantly focuses on expert testimony as opposed to witnesses, making both sides reasonably capable of presenting their case despite the unique circumstances. The legal news publication Law360 continues to cover the lawsuit.

This recap pulls direct quote highlights from Law360 stories.

EPA Experts Say Fluoride Not Shown Toxic at Low Levels – June 15, 2020 

The EPA’s expert witnesses testified via Zoom video conference “that despite animal studies showing possible neurotoxic effects at high levels, there is insufficient evidence to show fluoride is harmful to infant brains at the lower levels in drinking water.”

Toxicologists, Dr. Joyce Tsuji and Dr. Ellen Chang, appeared to testify on behalf of the EPA, explaining “that the connection between fluoride exposure and health effects is not ’compelling’” despite there being an overwhelming amount of scientific literature to suggest that it is. Counsel for plaintiffs, Michael Connett, argued saying that “sufficient evidence to… conclude fluoride in tap water poses an unreasonable risk of harm to humans, and especially infants” is available.

Additionally, Mr. Connett laid out for Judge Chen Dr. Chang’s professional background at the consulting firm Exponent, “saying most of her work there has been sponsored by chemical giants Dow Chemical, Monsanto and 3M”.

When Dr. Tsuji testified, she “did not dispute that the current animal studies support a neurotoxicological impact on the brain,” she found the evidence “inadequate to inform conclusions on neurotoxicity in humans.” Expert witnesses for plaintiffs on the other hand, have testified how recent studies show that “fluoride exposure levels in drinking water are too high and are ‘endangering the next generation’s intelligence.’”

EPA Risk Assessment Director Stands by Fluoridated Water – June 16, 2020

“The director of the U.S. Environmental Protection Agency’s Risk Assessment Division testified… in a federal bench trial about the safety of fluoride in drinking water, saying the most robust science available supported the EPA’s finding that it’s safe to fluoridate water at the nationally recommended level.”

Dr. Tala Henry, director of the EPA’s Risk Assessment Division, “said she knew of no reason the EPA would have an interest in denying or hiding a potential risk or hazard from exposure  to fluoride.” She again affirmed “that there is too little sound scientific evidence” for the EPA “to conclude that fluoride is toxic to a developing human brain.”

When it came time for cross-examination, firm attorney Michael Connett said that the EPA assessed the risk of fluoride under a different standard than other chemicals, suggesting that additional information on the hazards of fluoride have not been taken into consideration by the EPA under this “causation standard.”

“You held the plaintiffs to a burden of proof that EPA has not held a single chemical under section 6 [of the Toxic Substances Control Act] before, correct?” Connett asked.

“By the words on the page, I guess that’s true,” Henry said. “But it was really, my opinion was based mostly on the methodological problems.”

EPA Should Reexamine Fluoridated Water Risks, Judge Says – June 17, 2020 

U.S. District Judge Edward Chen “suggested during closing arguments… that he hold off ruling so that the EPA can reevaluate fluoride’s risk, saying the agency apparently used the wrong standard and hadn’t considered additional information raised at trial.”

Judge Chen postponed further proceedings at the end of the two-week trial as he advised the EPA to consider new data about the chemical’s health risks. “’Doesn’t it make sense to have the agency take another look?’ Judge Chen asked attorneys for both the U.S. Environmental Protection Agency and the citizens groups suing the agency under the Toxic Substances Control Act.”

“Judge Chen asked the parties to consider the possibility of either an amended petition and reconsideration by the EPA or a new petition altogether, saying he would hope that the agency would use the opportunity to look at the new evidence and apply the proper standard.”

“The point is, what was presented to the EPA is a very, very different record than what I have now,” Judge Chen said, noting that after hearing the evidence presented at trial, he has concluded that “there is serious evidence here” and that new studies are raising “serious questions” about the health effects of fluoride on human brain development.

Waters Kraus & Paul attorney, Michael Connett, described his plaintiffs’ efforts to defend their existing petition and bring witnesses to trial as a “massive undertaking.” Starting a new petition would simply take away more time and resources than the advocates have.

Judge Chen said he will still likely rule on the case, and he did not point the parties toward a particular strategy to come to a productive agreement. The court will still hold a status briefing for both sides via Zoom on August 6th.

Look for continued coverage on Law360 or return here for further fluoride lawsuit recaps.

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