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Bailey v. Huggins Diagnostic & Rehabilitation Center Inc.6/26/1997
pose health risks cannot be ruled out.
This debate was the subject of a segment on a national television program, "60 Minutes," a videotape of which was placed in evidence. In that program, both the majority and minority viewpoints were represented. While Huggins did not appear, some dentists and medical providers interviewed insisted that amalgams present health risks. However, the president of the American Dental Association (ADA) and others presented the majority viewpoint and insisted that any dentist recommending the removal of amalgams for the sole purpose of eliminating the mercury vapors would be guilty of "unethical" conduct.
As noted, Huggins has been an active participant in this debate. He has published a book in which he acknowledges that the membership of the ADA and other health organizations have failed to recognize any health dangers from amalgams, but he engages in vigorous arguments, based upon his own alleged clinical studies and observations, that these substances are dangerous.
In addition, Huggins participated in a four-part news program, produced by a local Nevada television station, in which the course of treatment of several patients, who were depicted as being able to walk only with great difficulty before the removal of their amalgams, but whose posture and gait apparently considerably improved thereafter, was described and followed. A videotape of this program, in which Huggins argues his viewpoint upon the question, was also received in evidence.
Prior to the events giving rise to this litigation, plaintiff had amalgams placed in her mouth during the course of treatment from other dentists. Her husband, likewise, had received such treatment. However, plaintiff's husband, who was an employee of the Center, had his amalgams removed, and he attempted to persuade plaintiff to do likewise.
As part of his efforts to persuade plaintiff to adopt this course of action, plaintiff's husband brought home for her review Huggins' book and videotapes of the two television programs described above. It is undisputed that all of these materials are made available to prospective patients at the Center. And, it is the contents of these materials that plaintiff asserts contained the negligent misrepresentations made by Huggins upon which she relied.
Although plaintiff failed to designate any specific statement in Huggins' book or in either of the videotapes as a material misrepresentation, she asserted that the alleged general message of these materials, that amalgams present a health risk and should be removed (which she rejects as "false"), was what convinced her to go to the Center for dental treatment. And, it was her treatment by Ortegon that resulted in her successful prosecution of the malpractice claim against him and the Center.
This treatment consisted, among other things, in removing five of plaintiff's "root canal" teeth and replacing the amalgams in other teeth with materials that plaintiff asserted were of inferior quality. Nothing within any of the three materials that plaintiff had previously reviewed referred to the removal of teeth with prior root canal work or to the relative quality of various materials with which amalgams can be replaced.
Huggins played no part in any of the treatment provided to plaintiff by Ortegon, nor was there ever a dentist-patient relationship established between plaintiff and Huggins.
I.
As a preliminary matter, plaintiff seeks to renew her motion, previously denied by another division, to dismiss this appeal because, she claims, it was not filed in a timely fashion. We reject plaintiff's assertions upon this issue.
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