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Bailey v. Huggins Diagnostic & Rehabilitation Center Inc.6/26/1997
Opinion by JUDGE CRISWELL
Plaintiff, Diane Bailey, instituted this action against defendants, Gino Ortegon, D.D.S., and Hal A. Huggins, D.D.S., both of whom were employed by defendant Huggins Diagnostic and Rehabilitation Center, Inc. (Center) in which Huggins is the sole stockholder. She sought to recover damages allegedly resulting to her from Ortegon's dental malpractice, damages against Huggins for his alleged negligent misrepresentation, and a judgment against the Center, based on the actions of both, under the doctrine of respondeat superior. After a trial, a jury returned verdicts in favor of plaintiff for actual and exemplary damages against Ortegon and the Center, based on his malpractice, and for actual and exemplary damages against Huggins and the Center, based on his alleged negligent misrepresentation. Neither Ortegon nor the Center appeals from the resulting judgment based upon Ortegon's malpractice; both Huggins and the Center appeal from the resulting judgment based on Huggins' alleged misrepresentation. We reverse.
Plaintiff's claim against Huggins for negligent misrepresentation arises from Huggins' vigorous participation in an on-going debate over the question whether the use of dental amalgams can have a deleterious effect upon a patient's general health. The evidence establishes that amalgams are used to fill cavities in teeth and for other dental purposes. They are a mixture of silver, mercury, and other substances, and everyone now concedes that, after placement in a patient's mouth, the mercury and other metals emit vapors which are absorbed by various portions of the body. The debate centers on whether these emissions are in such quantities as to constitute a health hazard.
The vast majority of dentists are adamant in insisting that the use of amalgams is completely safe. Huggins and a very small minority of dentists are equally insistent that the vapors emitted by the amalgams can result in muscular deficiencies, causing the patient to exhibit symptoms similar to muscular dystrophy, as well as other maladies. Huggins has publicly recommended that amalgams be removed, at least in some patients, and replaced with other materials.
In January 1993, the United States Department of Health and Human Services, based on a previous study, issued a report upon the issue, which was placed in evidence at trial. That report concluded that some portion of the mercury in an amalgam is absorbed by the body and that persons with dental amalgam "had higher concentrations of mercury in various tissues . . . than those without amalgam." In addition, it concluded that "a small proportion of individuals may manifest allergic reactions" to these substances. However, that department could reach no definitive resolution upon the question whether a health hazard was created.
The report determined, rather, that the department:
could not conclude with certainty whether or not the mercury in amalgam might pose a public health risk; on the one hand, there is no evidence at present that the health of people with amalgam is compromised in any way. Likewise, there is no evidence that removing amalgam has a beneficial effect on health, despite anecdotal reports of 'improvements' after amalgam removal in patients with certain chronic illnesses. (It should also be noted that the removal process itself may expose the patient to additional mercury, and that alternative dental restorative materials could have long-term toxicity problems of their own). On the other hand, given that the evaluation of potential health effects from dental restorative materials, including dental amalgam, will be an ongoing process, the possibility that these materials could
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