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Aitkenhead v. W. View, Borough of

Citation: 9 ELR 20056
No. No. GD-4585-78, (Pa. C.P., 11/16/1978)

After a hearing at which both parties presented expert testimony concerning whether fluoridation of water presents a risk of cancer to the populace, the court determines that a sufficient risk exists to enjoin preliminarily further addition of fluorides to the municipal water supply under defendants' jurisdiction pending a final hearing. Before proceeding to the merits, the court recognizes that plaintiffs' legal remedies are limited by statute to participation in the administrative proceeding which resulted in the issuance of a state permit to add the chemical to the water supply. That proceeding, however, was concluded long before evidence of the alleged danger to the public became available, and may not now be reopened. Further, in order to bring suit based on the theory or public nuisance, plaintiffs must show an injury different from that suffered by the public in general, and are unable to do so in this case. Notwithstanding these barriers to a legal action, the court finds that in its role as a court of equity it acts as the keeper of the conscience of the sovereign, and thus must entertain cases where there is an apparent injury without adequate remedy at law. Finding that defendants have failed to rebut plaintiffs' proof of the dangers of fluoridation, regardless of the possible benefits of the practice, the court orders that it be halted immediately.

Counsel for Plaintiffs
John Remington Graham
224 N. 5th St., Brainerd MN 56401
(218) 829-0375

Counsel for Defendants
J. Jerome Mansmann, Fred E. Baxter, Jr., Jane D. Dale
McVerry, Baxter, Cindrich & Mansmann
1000 Lawyers Bldg., Pittsburgh PA 15219
(417) 765-2500