Aitkenhead v. Borough of West View

No. GD-4585-78 (Pa. C.P. November 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

[9 ELR 20056]

Opinion

Flaherty, J.:

The plaintiffs are residents of the area served by the West View Water Authority, which constitutes a large portion of northern Allegheny County, and thus they are consumers of the water distributed by the authority. The action has been brought to enjoin the defendant borough and water authority from continuing to fluoridate the public water supply. It is the contention of the plaintiffs that the addition of fluoride, commenced on March 1, 1978 at a level of 1.0 parts per million (ppm), is a menace to their health and that of the public because a link between fluoridated drinking water and cancer has been established by a new epidemiological¹ study authored by two research scientists, Dr. Dean Burk and Dr. John Yiamouyiannis. Defendants have raised preliminary objections in the nature of a demurrer based on the lack of jurisdiction and standing.

The West View Water Authority has determined that the addition of fluoride to the water supply is "good" for the public inasmuch as the introduction of fluoride into the water supply has a significant effect on the reduction of dental caries in children and, to some extent, in adults. Fluoride does not purify the water, but is an additive which, according to those who made the decision, benefits the public, thus, the public receives a benefit whether they want it or not. Interestingly, if government has the power to force that which is "good" upon us, and fluoride is added for this reason, where does it stop? Why would government not be able to add other "good" things into the water system? That question, however, has been withdrawn in this particular case.

On the jurisdictional issue, the defendants argue that the Department of Environmental Resources (DER) has the sole authority to issue waterworks permits and to stipulate the conditions under which water may be supplied to the public under § 1918-A of the Administrative Code, 71 P.S. §§ 510-518(1) and to preserve the purity of the waters of the Commonwealth, 35 P.S. §§ 2711-2715. The Environmental Hearing Board provides administrative review of the DER, and then appeals go to the Commonwealth Court and ultimately the Supreme Court of Pennsylvania. Thus, it is argued, this court of equity has no jurisdiction, since the above procedure is the exclusive remedy available to a person aggrieved by an alleged impurity in the water supply.

Defendants cite the recent supreme court case of Commonwealth of Pennsylvania, Department of Environmental Resources and Carroll E. Ditzler, et al., v. City of Lebanon, Nos. 403 and 409, January Term 1976 (argued November 18, 1977) in support of their contention that the DER is the sole arbiter of the purity of the drinking water of this commonwealth. The issue in that case was "whether the DER has the legal authority to compel the City of Lebanon to continue with the fluoride treatment of its water supply and, if such authority exists, whether in this case the DER exercised that authority without abusing its discretion." (Slip opinion at 1.) This court does not question the legal authority of the DER; therefore, the issue before the supreme court in Ditzler, supra, was different than it is here. The jurisdictional question before this court is rather the same one before the Lebanon County Court of Common Pleas in Ditzler v. City of Lebanon, No. 7 Equity (1974), the case that preceded the Ditzler case which moved up the appeals ladder from the Environmental Hearing Board through the commonwealth court to the supreme court. In the case before the court of common pleas, the DER intervened and the parties entered into a stipulation whereby the city agreed to petition for intervention in the appeal pending before the Environmental Hearing Board, and agreed not to terminate fluoridation until the case was resolved before the Board. Consequently, the equity case was discontinued. Significantly, the court of equity did not refuse to accept jurisdiction.

This court sits in equity, thus, as a chancellor, and, in ancient parlance, "the keeper of the King's conscience." In the development of our law, that which governs man's interaction with man, it has developed that a court of equity intervenes where there is no adequate remedy at law or administratively. In a free society, no governmental official, whether he be executive bureaucrat or learned judge, has the right to decide what is "good" for the people, especially when that alleged "good" is seriously disputed. Too often governmental officials lose sight of whom they are working to serve: it is not the "state," some institutional anonymity, it is the citizens who are supposed to be the masters. "Public servants" must consider the true meaning of that term.

In this context, the chancellor in a court of equity has an important role to play. He is the ancient "keeper of the conscience of the sovereign," i.e., the people. The "conscience" of the sovereign provides remedies where the complex apparatus of our statutory system breaks down and provides no remedy for a wrong being imposed upon the citizens of the country.

Following defendants' line of reasoning that the exclusive legal remedy is an appeal of the Environmental Hearing Board, etc., we come to a major flaw in their reasoning. Defendants themselves point out that the permit allowing fluoridation of theWest View water supply was issued "a decade before." They further point out that:

. . . any action by the DER, including issuance of any permit, is final as to anyone who has not appealed to the Environmental Hearing Board in accordance with the mandate of this section [71 P.S. Section 510-21(c)] and the Administrative Agency Law.

Defendants' Brief, p.9. Finally, defendants state that they made: ". . . public announcement of [their] intention to begin fluoridation in January, 1978." Defendants' Brief, p.1.

Obviously, if a permit was issued 10 years ago, the DER did not have the benefit of the Burk-Yiamouyiannis study when the fluoridation permit was issued. Equally obvious is the fact that since the action of the DER took place 10 years ago, such action cannot now be appealed to the Environmental Hearing Board. Lastly, if the public announcement of the fluoridation was made only this January, there was no opportunity for the public to contest the issuance of the permit, since the announcement was clearly after the fact. To apply this reasoning, the telescope would be illegal today, tomatoes would be poison and the Swine flu vaccine [9 ELR 20057] would be safe, and many of our accepted cures would not have been developed and available to the people today. Pasteur was ridiculed, but he survived and the world was rid of the plague of small pox. Not only are examples of this sort legion, it can almost be stated that this is the rule.

A serious question of denial of due process arises here. No one can contest the proposition that individuals have a right to "life, liberty and the pursuit of happiness." If the government has made a decision which is potentially life-threatening to our citizens, is it a correct interpretation of our system of government to say that those citizens have no right to be notified before such decision is made, so that they may have an opportunity to speak our against the proposition? And is it a correct interpretation of our system of government to say that when new evidence has been found that a previous decision may create a life-threatening condition, that the technicalities of administrative appeals prohibit that evidence from being considered? This court thinks not.

This case does not involve a government decision on labeling cigarettes as a cause of cancer and heart attacks. No one has to smoke a cigarette. It is a matter of individual choice. Likewise, it is a matter of choice when a person eats bacon treated with possibly carcinogenic nitrites, or consumes products containing saccharin or cyclamates. But there is no choice when the water that comes out of one's faucet, which he uses to drink, cook with, brush his teeth with, and bathe in, contains a possible carcinogen.

A court of equity acts where a court of law cannot. It is clear that a serious issue has been raised here, and that no adequate remedy at law exists. Thus, defendants' preliminary objections to jurisdiction in the nature of a demurrer do not have merit.

A second dispute raised by defendants is based upon count II of plaintiffs' complaint, which alleges that fluoridation constitutes a violation of the General Food Law, P.L. 520, 31 P.S. § 1 et seq. Since this court has already accepted jurisdiction, this question need not be considered.

Standing is the third question raised by defendants, who contend that for private individuals to have standing to sue based on a public nuisance, they must show special damages that are unique to them. This court recognizes that this is indeed a general principle; however, in the case at bar it defies logic, for the consequence of this principle would be that one of the plaintiffs would have to have contracted cancer caused by the fluoridation before he could have standing.

A multitude of lawsuits have recently been filed against the chemical, textile, and shipbuilding industries by victims of cancer and other diseases who are now suffering 10, 20 and 30 years later from exposure to carcinogens. Who knows, perhaps 10 years from now the commonwealth may be inundated with suits by possible victims of fluoride-caused cancer. Surely simple prudence indicates that the best evidence must be scrutinized now, not after tragedy has struck.

The sole issue before the court is whether or not fluoride may be a carcinogen. The issue of whether fluoride protects children's teeth was not before the court. No testimony or other evidence was permitted on the question of whether fluoride aids in the prevention of dental caries, since this court ruled that no action to prevent a nonfatal dental condition could be justified if such action might result in even one death.

Over the course of five months, the court held periodic hearings which consisted of extensive expert testimony from as far away as England. At issue was the most recent time trend study of Dr. Burk and Dr. Yiamouyiannis, which compared the cancer mortality of 10 cities which fluoridated their water systems with 10 cities which did not fluoridate over a period of 28 years from 1950 to 1968 [sic]. The study concluded that there was a significant increase in cancer mortality in the fluoridated cities.

The essence of the defendants' case was expert testimony attacking the methodology and the conclusions of the Burk-Yiamouyiannis study (hereinafter referred to as the "B-Y Study"). Dr. David J. Newell, who has a Ph.D. in medical statistics, and is head of the Department of Medical Statistics at the University of Newcastle, England, testified that the B-Y study did not take age, race, and sex variables into account. For example, Dr. Newell stated the cities' populations were changed drastically between the years 1950 to 1970, due to the large influx of black people. Statistically, black people have a higher incidence of cancer than white people.

Responding specifically to this criticism, Dr. Yiamouyiannis testified that the growth of cancer rates for nonwhites coincides with their influx from rural to urban centers, and that there is no racial difference in susceptibility. Thus, he argued, the different racial mixtures of the subject cities are of no consequence. Furthermore, Dr. Yiamouyiannis stated that many cities stopped keeping records based on race in the late 1950s and early 1960s, and that by the 1970 census, the available figures were no longer reliable at all, since people were classified by asking them how they wished to be identified, rather than on a firmly defined basis.

In response to the criticism that the B-Y Study age groups were too large and therefore distorted the results, Dr. Yiamouyiannis explained that he had broken the groups down into smaller ones to see which population groups were increasing in number, but had found that the smaller groups were increasing in number, but he had found that the smaller groups had essentially the same increases innumbers as the larger ones, so the larger group could be properly used.

As for the criticism of the sex variable not being taken into account, Dr. Yiamouyiannis responded that the proportion of males to females actually went down in the fluoridated cities as opposed to the non-fluoridated cities. Therefore, since males have a higher rate of cancer than females, if he had adjusted for sex in the manner suggested by his critics, there would have been an even larger cancer mortality than the B-Y Study revealed.

Much of the defendants' criticism of the B-Y Study was based on the fact that the researchers used the indirect rather than the direct method for the sex and race variables. Dr. Yiamouyiannis responded to this charge of unorthodox methods by citing the expert Bradford Hill, whose book is one of the standards of orthodoxy, for the proposition that the direct method is appropriate only if the age, race, and sex proportions are known in every subgroup. This was not the case, for reasons explained above, and thus the only possibility was the indirect method.

Another British expert for defendants, Dr. Leo J. Kinlen, M.D., an epidemiologist specializing in cancer, did a study on the relationship between fluoride and cancer in Great Britain. His findings were that there was no relationship. On cross-examination, it was revealed that Dr. Kinlen's study was not a time trend like the B-Y study, that there is a certain amount of natural fluoride in the water of Great Britain thereby preventing a non-fluoridated versus fluoridated comparison, and that the statistics were on cancer incidence, not cancer mortality. As plaintiffs pushed Dr. Kinlen to admit, sometimes people do not know they have cancer, thus, even though records are kept of reported cases, there is a considerable possible margin for error. Plaintiffs then argued that cancer mortality is a better measure than incidence, thereby calling Kinlen's findings into question.

One major criticism defendants made of the B-Y Study was of the extremely short time between fluoridating a water supply and a rise in the incidence of cancer. However, defendants' expert, Dr. Kinlen, testified that some substances can induce or accelerate cancer anywhere from two weeks to two years. Therefore, a marked increase in the cancer mortality rate within two years of the beginning of fluoridation is not at all improbable.

Point by point, every criticism defendants made of the B-Y Study was met and explained by the plaintiffs. Often, the point was turned around against defendants. In short, this court was compellingly convinced of the evidence in favor of plaintiffs. It is significant that Dr. Daniel Taves, a witness called on behalf of the defendants, acknowledged certain unresolved doubts concerning the safety of fluoridation, and was then asked:

Shifting your roles from scientist to doctor of medicine following the Hippocratic Oath . . . would you as a doctor of medicine recommend that fluoride be dumped into the public water supply?

Page 17. A colloquy followed during which Dr. Taves answered:

Now, he was asking me a situation akin to being a health officer in a situation where their decision had not been made. And in that situation I would feel a burden of proof was on me to satisfy that the studies had been adequate in my mind. . . .

[9 ELR 20058]

Page 19. Dr. Taves went on to say:

In that situation as a health officer where the fluoride was not in the water, yes, I would have difficulty and say that I would want more information before I was given this particular data, if I were a health officer making the decision. I would say no, I want to wait until this situation was clarified.

Page 21. The climax was:

Q. Is your testimony that you recommend fluoridation in public water supplies?

A. I don't want to state on that.

Page 24. Whenever the public health may be threatened, a court of equity has a duty to act. Therefore, a preliminary injunction prohibiting the addition of fluoride to the water supply at the Neville Island facility of the West View Water Authority shall issue.

Preliminary Decree

AND NOW, to wit, this 16th day of November 1978, it is hereby DECREED that no fluoride shall be added by the defendant to the water supply treated at the West View Water Authority's Neville Island facility. Said prohibition shall remain in effect until this court holds a final hearing upon this matter, or the matter is submitted to, considered by, and dealt with by the Pennsylvania Department of Environmental Resources, taking into account the evidence submitted to this court. A bond in the amount of ONE THOUSAND AND 00/100 ($1,000) DOLLARS shall be posted.

1. Epidemiology is defined in Webster's Third New International Dictionary, (1971) as (1) "[a] science that deals with the incidence, distribution, and control of disease in a population," and (2) [the s]um of the factors controlling the presence or absence of a disease or pathogen."