Smilecare

Plaintiff filed this action, alleging a violation of the Safe Drinking Water and Toxic Enforcement Act of 1986, commonly known as Proposition 65. Plaintiff alleged that defendants, providers of dental care, violated the act by failing to warn employees and patients that standard amalgam fillings, also called “silver fillings,” contain mercury and mercury compounds, which are reproductive toxins. The trial court granted defendants’ motion for summary judgment, which was based on an affirmative defense.

We conclude that the trial court misapplied the burden of producing evidence in granting the motion. Defendants had an initial burden of production to make a prima facie showing that the affirmative defense applied. Because defendants made no such showing, the burden did not shift to plaintiff to raise a triable issue. Accordingly, we reverse.

The Dental Amalgam Controversy

Concern over the use of silver fillings is nothing new. “In dental offices around the world, cavities are treated by drilling holes in patients’ teeth and filling the abscesses with a compound known as dental amalgam filling. Also known as ‘silver fillings,’ dental amalgam is composed of a mixture of…

According to the majority opinion, lawsuits under Proposition 65 can be filed and prosecuted by any person against any business based on bare allegations of a violation unsupported by any evidence of an actual violation—or even a good faith belief that a defendant is using an unsafe amount of a chemical known by the state to cause cancer or reproductive toxicity. 2 Unconcerned about the practical effect of their decision, and undeterred by a plaintiff’s admission that it has *478 no evidence at all to suggest that the defendant is using an unsafe level of any listed chemical, my colleagues have endorsed and encouraged a form of judicial extortion.

Here is how it works (it certainly appears to be what was done in this case). Pick a dentist or doctor, any dentist or doctor (but preferably one with a deep pocket). 3 Visit the dentist’s or doctor’s office. If you don’t see Proposition 65 warning signs on the walls or counters, go to the nearest courthouse, file a complaint, allege a failure to warn, and ask for $2,500 for each day the dentist or doctor has failed to give the required warnings. Don’t be concerned when the dentist or doctor answers and alleges as an affirmative defense…

Certified for Partial Publication. [*]

Plaintiff filed this action, alleging a violation of the Safe Drinking Water and Toxic Enforcement Act of 1986, commonly known as Proposition 65. Plaintiff alleged that defendants, providers of dental care, violated the act by failing to warn employees and patients that standard amalgam fillings, also called "silver fillings," contain mercury and mercury compounds, which are reproductive toxins. The trial court granted defendants' motion for summary judgment, which was based on an affirmative defense.

We conclude that the trial court misapplied the burden of producing evidence in granting the motion. Defendants had an initial burden of production to make a prima facie showing that the affirmative defense applied. Because defendants made no such showing, the burden did not shift to plaintiff to raise a triable issue. Accordingly, we reverse.

Concern over the use of silver fillings is nothing new. "In dental offices around the world, cavities are treated by drilling holes in patients' teeth and filling the abscesses with a compound known as dental amalgam filling. Also known as `silver fillings,' dental amalgam is composed of a…