JRDeal Presentation

Print Friendly, PDF & Email

This is Bill Osmunson’s introduction of James:

Your speaker is James Robert Deal, attorney from Lynnwood, Washington. James makes his living modifying people’s high interest rate mortgages. However, in law school he studied environmental law, and that was his calling as an attorney. His web site is www.Fluoride-Class-Action.com. He is the vice-president of Washington Action for Safe Water and the web master for www.WashingtonSafeWater.com. He has been a vegan vegetarian for 30 years and is the author of a book on the ethical and environmental implications of what we eat. The book is entitled “What To Serve A Goddess When She Comes For Dinner.” It is available through Amazon.

James Robert Deal, Attorney
“Using Litigation and the Threat of Litigation
to Fight Drinking Water Fluoridation”
July 24, 2010
Canton, New York

It is an honor to be in the same room with so many people who are committed to opposing water fluoridation.

I want to thank everyone in FAN for all you have done. You have built the educational foundation on which the fluoridation fight rests. Thanks to FAN detractors can no longer say we are kooks and conspiracy theorists.

Thanks to Bill Osmunson who has helped me so much in my brief writing in the Port Angeles case. Bill and I drove down to Olympia on February 20, 2008. He suggested to me that someone should bring a class action lawsuit. I started pondering that idea and set up www.Fluoride-Class-Action.com.

I will outline my purpose and goals:

To provide sample FOIA documents, sample notice of liability letters, sample follow-up letters, and amicus briefs and pleadings that attorneys can use.

My purpose was and is to encourage experienced litigators to bring suit against water districts and other responsible organizations.

My purpose is to serve as a link between those who understand the science on fluoridation and the law relating to fluoridation.

To encourage attorneys to bring in all the relevant science into the case and give them briefs on scientific-legal issues.

To study fluoridation cases in this and other countries. To look at mistakes that have been made, the cases we have won and lost, to avoid making mistakes by being extremely well prepared. Not to litigate unless we can win. We must choose our cases carefully and proceed cautiously.

No one else had volunteered to fill this role so I decided to do it.

[My comments will apply mostly to the United States situation.] {Sections in brackets were not part of the speech because of time limitations.}

There are many ways to fight fluoridation. We should employ many methods. I will list them.

Education is method, building excellent web sites and yahoo groups, visiting water district meetings, writing and publishing, lobbying.

Debate is another method. But there is a small problem. Fluoride supporters refuse to debate as a matter of policy. I say call the debate anyway. On one side of the stage we have Paul Connett and Phillis Mullinex. On the other side of the stage we have an empty microphone and a big sign that says “afraid to debate.” Then I sit down and give the pro-fluoride arguments and Paul and Phillis reply to them. Get C-Span to cover it.

Another method is sending out notices of potential liability. Daniel Stockin of the Lillie Center has used this method to some success. It is a step along the road to litigation.

We should send out similar notices to bottlers or beer and soft drinks and water made with fluoridated tap water and to bottlers of grape juice made with grapes fumigated with sulfuryl fluoride. Notice might go to DOW Chemical which markets sulfuryl fluoride, approved for application on food, resulting in up to 900 ppm fluoride in dried eggs.

The Freedom of Information Act request is another method. Go to www.Fluoride-Class-Action.com and download a sample FOIA request, insert your name and the name of the water district, and present it.

[Caution: I am in the process of upgrading the web site. I have hundreds of documents to upload and rearrangement of the website to do. It’s easy with WordPress.]

Another method is following up to the FOIA response you get with a notice of liability. When your water district sends you its answers that are wrong or incomplete, follow up with a point by point criticism. Charge them with the duty to commission a study and give them a deadline.

Another method: Attend water district and city council meetings with a letter and read it during the three-minute per person comment period. Then turn it in and ask for a written response.

The press release is another method. When it is clear that the water district is not addressing the issues, do a press releases. Personally deliver it to the TV and radio station and be ready to be taped. FAN should set up a media analysis group. The ghost of Edward Bernays still haunts this controversy.

A suggestion: Recruit local attorneys who will work pro bono to sign your FOIA requests and your letters to the water district and sign the press releases. He will help give you credibility. We need to bring these attorneys along. The pro bono attorney’s role is not to do litigation. That needs to be compensated, maybe on a reduced basis. The pro bono attorney is one who has an environmental yearning and who will sign your letters and demands and give you increased clout in the pre-litigation phase.

[Attorneys have a duty to do pro bono work. A lot of attorneys are looking for some kind of meaningful and interesting pro bono work. Ask an attorney if he does pro bono work and the joke is that his pro bono work is all the work he does for people who never pay him. Well, this is good pro bono work.] Tell the attorney you and I will educate him on the subject, that many of the documents he will be sending out are on the www.Fluoride-Class-Action.com web site. There are a lot of young lawyers who like environmental law or toxic tort litigation and do not want to work for an oil company or a timber company. This would be a way for them to get into the field. So do some calling. Call the environmental  law professor at the law school.]

I should say a few words about how I see myself fitting in. I am not the lawyer to handle the big fluoride case. I am not a litigator. I would only be willing to participate in a suit if I were working under an experienced litigator and he or she took the lead. My role is to recruit attorneys, to get this procedure going, to encourage attorneys to get involved, to generate and collect documents, to bridge that difficult gap between science and the law. To make it easier for attorneys too get involved both on a pro bono level and as actual litigators.

Another tactic or method is threatening litigation. Say it frequently: “The lawsuits are coming.” Threatening to sue is a lot cheaper than actually suing.

Another method is going around the water district to the water district’s insurance carrier. In your FOIA request you are going to ask who their carrier is and ask for a copy of the policy. Send threatening letters also to the insurance carrier.

An insurance company is not in the business of losing money. Insurance companies have lawyers on staff who analyze the real risk of having to pay out on a losing case. Politicians and bureaucrats don’t do that. They mostly factor in what will get them votes or campaign contributions.

If you succeed, the insurance carrier might raise its deductible or raise the price of coverage or require the water district to give notice to parents of infants or eliminate coverage for fluoride liability altogether.

Another method: Go directly to health insurance companies. They are required to deliver health insurance to people who are being made unhealthy by water fluoridation. It cuts into their profits. Another target is Medicaid which pays out $8 billion per year for kidney dialysis for 350,000 people.

Another method: After going to the water district, go to the city council, county council, or the governor: Tell them that there is the possibility that the water district could get sued and that this would possibly spill over to the city or the county or the state and might raise costs and threaten the financial viability of the water district. Maybe the city will have to bail out the water district.

Another tactic is preparing the complaint and serving it without actually filing it. It has more impact and the big costs do not start piling up. Your pro bono attorney might go this far.

But what if reasoning and threatening just do not work? You need to get their attention. You need to hit them in the head with a hammer. As your attorney I advise you not to do that. So hit them instead with a lawsuit. [Nothing gets someone’s attention like a summons and complaint. They have 20 days to give you a written answer. They have 30 days to answer your interrogatories and reveal their list of expert witnesses and that they will say.]

We should not sue unless we are exceedingly well prepared and have a substantial fund to support the case. It would be very bad for our effort if we filed suit and lost. Meanwhile we need to start preparing for what is probably going to be required.

Litigation falls into two broad categories. One is a suit for an injunction to halt fluoridation. The other is a suit for damages for harms caused by fluoridation, maybe a mass tort action with multiple plaintiffs. I will compare the two.

First, a suit for damages, preferably with multiple plaintiffs. Some call this a class action, but that works only if everyone has the same injury. Instead of a class action, it is called a mass toxic tort action. In a class action you have a few representative plaintiffs. In a mass tort action, each plaintiff must actually sue. You can start with a few and add more  plaintiffs later.

Our odds very good, I think, particularly with a fluorosis case. They admit that fluoride in the water causes fluorosis. So you select plaintiffs who lived with fluoridated water as children. Most fluoride  gets  into us through what we drink and the rest through what we eat, and much of what we eat is made out  of local fluoridated water. A plaintiff who worked in an aluminium smelter is not an ideal client. Attorney Chris Nidel in Washington, toxic torts lawyer, thinks these are provable cases. He is working with Daniel Stockin of the Lillie Center to identify potential plaintiffs across the country. Encourage people anywhere to go to Chris’ website and enroll.

My web site is www.Fluoride-Class-Action.com. It should be called Fluoride Mass Toxic Tort Action.com.

[A few words about the class action concept: To bring a class action suit you find five typical people, and they sue as plaintiffs. They all have the same characteristics. For example, they all bought the same defective product and each lost $50. The other 10,000 people who bought the same product and lost $50 do not have to sue. The first five typical people represent them. The court sets up a damages fund. Notice is sent to the damaged people, and they file their claim their money.]

[But any kind of suit for damages for fluoridation will not qualify as a class action. Each plaintiff has a different history, drank fluoridated water for a different period, maybe swallowed more toothpaste, maybe worked in an aluminum mill and inhaled fluoride. So each plaintiff has to join the suit. Yes, you can start with two or five plaintiffs and add others as you go along. But ultimately each claimant needs to join as a plaintiff. So when I say www.Fluoride-Class-Action.com, I use the term “class action” loosely.]

Let’s compare a suit for an injunction with a suit for damages, a mass tort action.

Compare a suit for injunction: You sue and ask a judge to issue an injunction to stop water fluoridation. You do not have a jury. Someone has to finance the case. At the end if you win, the district has to stop fluoridation but may not have to pay damages or attorney fees. There is no financial reward at the end to compensate the poisoned, to repay those who financed the case, or to compensate the lawyers. Also if the water district does not have to pay out damages, there is less impact on the water district and their insurance carrier. The in terrorem effect is not there.

However, it is possible that we could do a civil rights case under 42 USC 1983, 1988, which does provide in some cases for payment of damages and attorney  fees. Under 1983 you could take the case to federal court, which could be better because the judges do not have to run for reelection and are less subject to pressure. My research on doing a civil rights case is not complete yet.

Compare a suit for money damages, a mass tort action: You sue for money only. Someone still has to finance the case, but if a lawyer thinks he can make money on a contingency basis by suing on behalf of kids with funky teeth or kidney dialysis patients who died at age 45, then we don’t have to raise as much money to get a suit started. When you sue for money damages and if you win, there is a financial reward at the end to compensate the poisoned, to repay those who financed the case, and to compensate the lawyers.

Again, it may be possible to do it as a civil rights case under 42 USC 1983, which would in some cases get you attorney fees on top of damages. And you could also combine a suit for money and a suit to enjoin.

[Realistically, because these are new cases, because they are somewhat speculative, because a lot of work needs to be done recruiting plaintiffs, because expert witnesses need to be compensated, and because there is more inefficiency involved the first time you try a new type of case, it should be expected that start up money would be needed in a case for money damages. Many contingency case agreements say that the plaintiff will pay for out of pocket costs as the case goes along. I would think it appropriate that the attorney get paid at a reduced hourly rate as he goes along against a percentage of the verdict if there is one.]

So we need to get to some rich people and create a war chest for litigation. Seriously, we need to do some serious fund raising.

I would assume that after the first case has been won, other attorneys might be willing to finance cases against other water districts entirely out of their own pockets. The experts would already be identified. The sample pleadings, interrogatories, depositions, trial briefs, and so on would already be done.

Compare a suit for an injunction: It is tried to a judge because it is a case in equity not in law. There is no jury. Compare a suit for damages: It is generally tried to a jury. It can be tried to a judge if both parties agree.

[Compare again a suit for injunction: Even if you win and get the water district to stop fluoridating, it will not have to pay out money at the end. So there is no great financial punishment to the water district. Nor is there any great financial punishment to the insurance carrier. The message does not hit home as strongly. The in terrorem effect is not there.]

[Compare a suit for money damages again: If we win, the water district is going to owe money at the end, therefore there will be financial punishment to the water district. Their insurance carrier is going to take a hit. The carrier may cancel or limit future coverage for fluoride suits. It might rewrite its policy and raise deductibles. It might exclude coverage for certain populations such as children or for certain harms such as fluorosis, because it is admitted that fluoride causes it. This is really not really a matter of negligence; it is an intentional harm. The same policies might be applied to all of the water districts insured by the carrier. Other carriers might adopt the same policies. Water districts would not be able to get insurance.]

[Other water districts see the handwriting on the wall. The stupid practice of pouring toxic waste into our water will end. We win.]

What about proving  the connection between fluoridation and harm? It is easier to do this in a suit for an injunction: We do not have to prove that any single person was harmed by fluoridation or that the harm to any one single person was caused by water fluoridation and not from fluoride in tooth paste or dental gel.

We can easily prove that on the whole fluoride does cause various maladies. Now it is clear there is no benefit from ingesting fluoride. [We can also look at epidemiological and statistical studies. On the whole many unhealthy conditions are more frequent in fluoridated cities than in non-fluoridated cities.]

[The average cancer rate for example is higher in fluoridated cities. Kidney disease is more prevalent in the US than in Japan. Bone and teeth fractures are more common.]

You could have a suit for an injunction on behalf of babies. A suit for injunction is a winnable case. It’s expensive and it does not generate revenues, but it is winnable.

Let’s not forget the fluoride hyper-sensitives, documented in Dr. Spittle’s book, the people who are downright allergic to fluoride. That case is easier to prove as a case for injunction than as a suit for damages.

[If you read Spittle’s book, which is on the www.Fluoride-Class-Action.com web site, you will see that the clinical case if fairly strong. Look at the Walbott and Bergstaller study and the study by Dr. Feltman, a fluoridation supporter, both reviewed in Spittle’s book. I would suggest that a fluoride hyper-sensitives case might be stronger as part of an injunction case than as a case for damages. Because you do not have to prove with each sensitive person that their sensitivity results from water fluoridation. You only have to prove that in the whole population there are 1% to 5% who are hyper-sensitive.]

[There are different challenges with a case for an injunction. In a mass tort action for damages we have to prove that each plaintiff was harmed by water distributed by the local water district. What if the plaintiff lived part of his life elsewhere? What if he worked for an aluminum smelter? What if he drank a lot of tea? What if the plaintiff drank only milk, which is as low in fluoride as mother’s milk? Apparently cows too have no nutritional need for fluoride.]

[In a suit for money damages it is generally presumed that we cannot win because there are other sources of fluoride intake. In my opinion this is not true. It is sufficient if the city’s fluoridated water was a substantial contributing factor. There are always other factors. Consider the case of the drunk driver who is driving on the wrong side of the road without his headlights on and going 30 miles over the speed limit and runs into you. You were driving ten miles over the speed limit. Does that mean you lose? No. In the asbestos cases, some of the plaintiffs smoked. Did that mean they lost? No. According to Attorney Chris Nidel, liability can be apportioned in toxic torts cases.]

[The 2006 NRC report page 65 tells us how much of the total fluoride we get comes from the tap water we drink. For adults its around 67%. It is around 26% from our food. And some of the food is made with local drinking water, so the percentage is higher than 67% but something less than 67% + 26%, which adds up to 93%.]

Also there is the question of whom we should sue. Yes, we should sue the Seattle Water District. Should we also sue the Washington Board of Health and the state of Washington which authorizes and blesses fluoridation but which does not require it? Does the state have sovereign immunity in such a suit? What about states that mandate fluoridation?

Should  we sue NSF, the sham regulator that does what the EPA is forbidden to do and approves the addition of fluoridation to water. How  about AWWA?

[Should we also sue Cargill as the supplier of the fluoride? The National Sanitation Foundation Standard 60 says that suppliers must deliver toxicology reports. State regulations require that fluoridation materials meet the requirements of Standard 60. However, NSF administrators have said under oath that this requirement is not enforced. Should we sue NSF for representing that it is acceptable to add fluoride to water and posing as a false regulatory agency and not enforcing its own Standard 60? Should we also sue AWWA which claims to be “the authoritative resource on safe water” and which supports fluoridation? NSF and AWWA are probably mere financial shells which have few assets, but a judgment against them would shut them down.]

[Compare again a suit for money damages: If you sue for money and not for an injunction, you can request a jury. The findings of a jury for money damages are less likely to be disturbed on appeal.]

We may succeed without suing, but we are more likely to succeed without suing if we get prepared to sue.

I would like to talk about the importance of raising a fund for litigation. We are up against big corporations and dental groups with apparently limitless resources. It is important to be well financed. We should make a special effort to look for people who have deep pockets. We should also do what churches and symphonies do and ask people to leave money in their wills to this fund.

Are we serious about this? Or are we hobbyists? We may not have the money ourselves, but we need to raise it by asking for it. Somebody needs to write a letter to George Soros.

[If you sue for damages, who will be your plaintiffs? The first group is made up of people with mottled teeth. They all have to have lived in the Seattle Water District during their childhood. I am talking with attorney Chris Nidel in Washington DC who believes that a suit for damages for flurosis is feasible. Daniel Stockin says it is difficult to get people to submit to being photographed with their bad teeth. They are too ashamed.]

I would suggest another good class of plaintiffs, those with kidney disease.

[Kidneys excrete silicofluorides, that is half of what we consume, whether sodium fluoride or silicofluorides. The other half is stored in calcium rich areas of the body. The half of the sodium fluoride which is excreted is excreted primarily through the bowels. The half of silicofluorides which is excreted is excreted primarily through the kidneys. Thus, silicofluorides primarily harm the kidneys and prevents kidneys from excreting fluoride efficiently. {Correct me if I am wrong on this point.} There is increased skeletal fluorosis for those with kidney disease. Concentrations as low as 1 ppm cause kidney damage. Kidney patients drink more water. They have back pain.]

[And people who have kidney disease have a higher mortality rate. They die younger. Can we find an expert witness who will say that John, who died at 50 with chronic kidney disease and who drank fluoridated water since 1969, would have lived longer had he not been drinking fluoridated water? Remember that the 2006 NRC report on page 65 says that adults get 67% of their fluoride from drinking water and another 26% from food, some of which is made with local water.]

[Some 25 million Americans have kidney disease. The number of patients on dialysis has increased from 10,000 in 1972 (which was when fluoridation was relatively new in most cities] to 350,000 today. The cost of dialysis is huge. $155 per dialysis treatment three times a week, $8 billion per year. 20% of dialysis patients die each year. 75% of dialysis patients age 18-54 cannot work. So there is large economic damage. http://www.usatoday.com/news/health/2009-08-23-dialysis_N.htm.]

We should boldly solicit wealthy people, create a litigation war chest, select the right attorney, not sue unless and until we have the right plaintiffs and the right case, and get the wheels of the law grinding away.

In closing I want to remind you: They have all the money but we have all the good ideas. In the long run we cannot lose.

A couple of lines from Bruce Cockburn cases come to mind: “How come history takes such a long, long time?” We need to move this process along, and litigation is the way to do it.

And Bruce also says: “Kick at the darkness until it bleeds daylight.”