USA: Fluoride Judge To Attys: 'I Don't Need Perry Mason Moments'

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Fluoride Judge To Attys: 'I Don't Need Perry Mason Moments'

Law360 - February 7, 2024

By Dorothy Atkins

A California federal judge presiding over a bench trial over fluoridated water's risks agreed to give the parties more time to present their cases Wednesday, but told counsel they haven't been "particularly efficient," and that "I don't need the Perry Mason moments — I just need to get to the issues."

U.S. District Judge Edward Chen's comments came before the start of the fifth day of a two-week bench trial in San Francisco in high-stakes litigation launched by Food & Water Watch Inc., the Fluoride Action Network and others against the U.S. Environmental Protection Agency in 2017.

The groups seek to force the EPA to make a new federal rule under the Toxic Substances Control Act that would ban fluoride from being added to drinking water. Local municipalities have added the chemical to public water for decades to boost public dental hygiene and prevent dental decay, but the groups argue the latest scientific studies suggest that fluoride is neurotoxic and that even low levels of exposure lowers IQ.

Before trial resumed Wednesday, counsel for the environmental groups, Michael Connett of Waters Kraus & Paul LLP, asked Judge Chen for an additional 75 minutes to present their case. Connett noted that the judge has asked many questions and taken some of their time during witness examinations, and he said the parties could use the additional time to ask the remaining witnesses about a new Canadian fluoride risk study that was published Tuesday.

But the EPA's counsel objected, arguing that the plaintiffs' opening statements were unnecessarily long, running over an hour, and they shouldn't be allotted more time.

Judge Chen agreed to give the plaintiffs an additional hour to present their case. However, he told the attorneys that so far during trial, "I will say, I thought there could have been more efficiency."

The judge noted that during recent trial days, "there was time spent on matters that weren't particularly efficient," and the attorneys have spent time questioning witnesses on certain issues that are obvious to him. He also emphasized that this is not a jury trial, it's a bench trial.

"I don't need stuff repeated for the dramatics," he said. "I don't need the Perry Mason moments – I just need to get to the issues. So use your time wisely."

Before the trial resumed, Judge Chen also agreed to allow the parties to examine witnesses on the "late breaking development," the new Canadian fluoride study.

Trial resumed then with the EPA finishing the cross-examination of the plaintiffs' risk assessment expert, Kathleen Thiessen, who co-wrote the National Research Council's 2006 report "Fluoride in Drinking Water: A Scientific Review of EPA's Standards."

The EPA's counsel tried to poke holes in Thiessen's report, which links fluoride exposure to lower IQ, getting her to acknowledge that the report did not conduct a margin of exposure analysis using human epidemiological studies.

Counsel also questioned the witness on the body's fluoride absorption rates and potential inconsistencies in various methods for testing urine for fluoride.

Although Thiessen acknowledged that urine fluoride tests don't account for how or when the body initially absorbed the fluoride and whether the source of the fluoride was drinking water, she repeatedly said during her examination that the data consistently shows that any level of fluoride exposure shows a potential for lower IQ.

The witness also acknowledged that there isn't an equation that fits perfectly with the fluoride exposure and an IQ drop, but she said repeatedly there is a statistically significant relationship.

"I don't think that you can say categorically that there is no risk," she said.

Thiessen additionally acknowledged that data on low levels of exposure under 0.2 mg/L may not show a statistically significant relationship, but she attributed the result to a smaller sample size.

"It's not a lack of data. It's simply that the data in the low range is going to be a little fuzzier," she said. "It's simply harder to see an effect that is real. That does not mean there is no effect."

The EPA's counsel attempted to question Thiessen further on what a margin of exposure analysis may have shown in regards to the riskiness of very small amounts of fluoride exposure, but Judge Chen sustained an objection to the question.

The judge told the defense attorney that his line of questioning was "not helpful," and let him know he understands Thiessen's testimony on the issue and the EPA's position.

"I get it," he said. "Let's move on."

After Thiessen's examination, the plaintiffs rested their case-in-chief, and the EPA called the first defense witness, Brown University professor of epidemiology David Savitz, who recently participated in a Canadian health panel reviewing the latest scientific studies on the potential effects of fluoride exposure.

During his direct examination, Savitz testified that there's too much uncertainty in the scientific data on the neurocognitive impacts of fluoride exposure from water, which typically has 0.7 mg/L of fluoride, and it would be premature to regulate fluoridated water based on its potential neurotoxicity.

Savitz said the panel recommended that Canadian water regulators instead focus on moderate dental fluorosis — a condition resulting from taking in too much fluoride as a kid — that can occur with fluoride exposure above 1.56 mg/L.

"There's no doubt about the causality about" moderate dental fluorosis, Savitz said.

Savitz also said he doubted the efficacy of testing urine for fluoride, and he suggested a better analysis would be to look at an individual's fluoride consumption.

Before trial recessed for the day, Judge Chen asked Savitz what the "tipping point" would be in terms of the number of epidemiological studies for him to find that fluoride exposure lowers IQ scores, and whether Savitz believed a few studies showing boys who had high levels of prenatal fluoride exposures were more likely to have lower IQ scores than girls.

Savitz agreed with the judge that the studies showing a sex-based IQ trend are likely a "statistical fluke" or outliers. He also acknowledged that there isn't a specific number of studies that would be needed to reach a finding on fluoride's neurocognitive impacts.

"It's a challenging issue, because researchers say more studies are needed, which is kind of meaningless, because studies are always needed," Savitz said. "More realistically, it's by the weight of evidence."

Trial will resume Friday with continued direct examination of Savitz.

The legal fight went to a first bench trial in 2020, with the plaintiff groups asking the court to declare that fluoride in tap water posed a risk to human health. But Judge Chen suspended litigation so the EPA could conduct another study and reevaluate fluoride's risks. Litigation resumed in October 2022.

The groups are represented by C. Andrew Waters and Michael Connett of Waters Kraus & Paul LLP and Christopher T. Nidel of Nidel & Nace PLLC.

The EPA is represented by Brandon N. Adkins and Paul A. Caintic of the U.S. Department of Justice's Environment and Natural Resources Division and Emmet P. Ong of the U.S. Attorney's Office for the Northern District of California.

The case is Food & Water Watch Inc. et al. v. Environmental Protection Agency et al., case number 3:17-cv-02162, in the U.S. District Court for the Northern District of California.

SOURCE
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