The TSCA Trial. Day 1. June 8, 2020.

Fluoride Action Network | TSCA Trial | June 9, 2020.

THE FIRST DAY.

By  Paul Connett, PhD,  Director of FAN

It is hard to be objective when you are writing about something you have waited 20 years to see – the case against fluoridation heard on a level playing field – and your own son is a protagonist in the case, but here goes.

Opening Statements. Michael Connett, attorney for the plaintiffs, FAN, Food and Watch, Moms Against Fluoridastion, etc. gave the opening statement. It was a brilliant summary of the case that fluoride presents a hazard (threat to the brain); that this hazard is a risk at the doses experienced in fluoridated communities and that it is an unreasonable risk. He gave the credentials of our expert witnesses: Howard Hu MD, Bruce Lanphear MD, Philippe Grandjean MD, and Kathleen Thiessen PhD. He stressed that the EPA has relied on the research and advice of all of these experts in the past on other toxicants like lead and mercury. Two of these experts have been authors of key fluoride studies funded by US government agencies (Bashash et al., 2017 and 2018) and Green 2019 and Till 2020, which have been the subject and focus of FAN’s concerns since 2017 and are central to the case that fluoride lowers the IQ in children and increases the prevalence of ADHD symptoms. The other two experts (Grandjean and Thiessen) have been involved with fluoride research for many years and for this case performed risk assessments based on both animal studies (Thiessen) and human studies (Grandjean).

Then Michael contrasted the expertise of these fluoride experts with the experts on offer from the US EPA. Instead of using experts from the EPA, they chose to use experts from Exponent, a consulting company distinguished for its work on behalf of many polluting industries. The experts Ellen Chang ScD, and Joyce Tsuji PhD, have defended some of the most notorious pollutants known to man including PFAS. They have somehow found a way of exonerating them from harm. Going forward I can’t wait until we have the videotape of this opening statement.

The EPA is represented by lawyers from the Department of Justice. They outlined the way they are going to tackle the formidable evidence stacked against them. They argued that establishing fluoride as a neurotoxic hazard requires a systematic review and without that FAN’s whole case falls. Such a systematic review requires examining all the published studies and rating the studies with criteria laid down before the review – and only then can one judge if a hazard has been established. The EPA argues that neither Thiessen nor Grandjean did this, therefore their conclusions can be ruled out. Chang and Tsuji did this and did not find that a hazard was established. Personally, I do not think they will be able to convince the judge that this is the case and it will not prevail against the studies that our experts will present and the arguments our side will present on the systematic review issue. But we will have to wait and see on that.

Joyce Donohue PhD. The first expert witness offered by the plaintiffs was Joyce Donohue who has worked in the EPA’s Office of Water since the 1996 and has been their spokesperson on fluoride. Her testimony was based on a video recording of her 4 – 5 hour deposition given to Michael in 2019. From this Michael was able to yield two key concessions: a) the EPA (as of 2019) had no studies to provide a pregnant woman to show that the fetus was safe from neurotoxicity. She only had studies that showed harm and b) that she would recommend that the EPA and other regulatory bodies do risk assessments of the neurotoxicity of fluoride as an end point. Hitherto all EPA risk assessments have been based on potential damage to the teeth and the bone.

Howard Hu, MD, MPH, ScD. Hu’s credentials are very, very impressive. He came across as very knowledgeable and credible on both his overall work and his specific work on fluoride as the Principal Investigator for the Bashash et al, 2017 and 2018 studies. He was examined by another of the plaintiff’s lawyers Andy Waters of Krauss, Waters and Paul.  Because of the Covid19 issue, all the witnesses were required to provide exclamatory statements prior to the trial (called “Declarations”) so much of Hu’s testimony is already on the record. Even so as Hu went through the painstaking steps it took a) to get his study funded by the NIH and then b) accepted for publication in the prestigious Environmental Health Perspectives (EHP) journal it became clear that fluoride was not just another pollutant subjected to academic oversight. Hu didn’t use the words, but others have, fluoride is a “Protected” pollutant. Hu’s experiences are consistent with that conclusion. Hu was able to summarize the importance of his study and stressed the importance of a loss of 3 or 4 IQ points at the population level. He also brought out the parallel with lead’s neurotoxicity.

As expected the EPA’s lawyer spent a lot of time trying to find holes in the Bashash studies. That is not easy to do in this case and those pinpricks should be taken care of in cross which will occur today. The problem for the proponents is that whatever holes they find in the Bashash study they will find corrected in spades in the Green 2018 study and Till, 2020, on which Bruce Lanphear will be questioned either later today (Tuesday) or Wednesday.