Opinion
No. CV 05 4008101S
September 29, 2006
MEMORANDUM OF DECISION ON MOTIONS TO DISMISS
I INTRODUCTION
The captioned matter is an appeal (appeal) from a declaratory ruling (ruling) issued by the commissioner of environmental protection (commissioner). The ruling was issued in a proceeding (proceeding below) initiated by the commissioner pursuant to General Statutes § 4-176(a) (all further section references are to the General Statutes) for the purpose of determining the applicability to the practice of dentistry of P.A. 02-09, An Act Concerning Mercury Education and Reduction (act) (which is now codified in § 22a-612, et seq.). The act prohibits the sale or distribution of certain mercury-containing products and imposes restrictions on the sale or distribution of certain mercury-containing products.
Pursuant to § 4-176(h), the ruling is a final decision from which an appeal lies pursuant to § 4-183.
The appeal was commenced by five parties. The defendants are the commissioner, the Connecticut State Dental Association (association) and the Connecticut State Dental Commission. The commissioner and the association filed motions to dismiss (motions) as to all plaintiffs on the ground that none of the plaintiffs is classically aggrieved by the ruling, so that none of them has standing to prosecute the appeal. Because lack of standing implicates subject matter jurisdiction, the motions are appropriate vehicles to test the aggrievement claims of the plaintiffs. Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 485-86, 815 A.2d 1188 (2003). The Connecticut State Dental Commission has appeared, but it has taken no position on the motions.
In connection with the motions, the court conducted an evidentiary hearing (hearing) on the plaintiffs' allegations of aggrievement (allegations) contained in the Amended Petition for Administrative Appeal (petition). At the hearing, counsel for three of the plaintiffs, Consumers for Dental Choice, Adam Breiner and Dana Herbert, conceded that those plaintiffs are not aggrieved by the ruling and that the motions could be granted as to them. The appeal was then dismissed as to those plaintiffs. (Tr., 2-8-06, p. 4.)
The court took evidence on the allegations of the remaining plaintiffs, Leonard Kundel (Kundel) and Nory Oakes (Oakes), over three days. The allegations, as set out in paragraph 29 of the petition, are:
As residents of the state . . . Kundel . . . and [Oakes] . . . each breathe air, drink water, and eat fish in Connecticut that have been contaminated with mercury from dental amalgam, and are aggrieved by the [ruling's] erroneous interpretation that the [a]ct excludes mercury amalgam from its prohibitions.
Some of the evidence offered by Kundel and Oakes went beyond the scope of the allegations, and the commissioner and the association objected to that evidence. Our case law permits amendments to pleadings during and after trial and directs the court to avoid, if possible, determining cases on procedural grounds, without trial. Therefore, the court admitted the evidence to which there was objection and constructively granted a variance to the petition to conform the allegations to the proof.
"A trial court may allow, in its discretion, an amendment to the pleadings before, during, or after trial to conform to the proof . . ." Tornaquindici v. Keggi, 94 Conn.App. 828, 843, 894 A.2d 1019 (2006) (citation omitted; internal quotation marks omitted).
"Our practice does not favor the termination of proceedings without a determination of the merits of the controversy where that can be brought about with due regard to necessary rules of procedure." Evans v. General Motors Corp., 277 Conn. 496, 523, 893 A.2d 371 (2006) (citation omitted; internal quotation marks omitted).
Because each of the motions asserts lack of aggrievement, this memorandum of decision addresses and disposes of both motions.
II. DISCUSSION Ruling
Although the record in the proceeding below has not yet been filed, the ruling was introduced as an exhibit at the hearing. The ruling states the questions posed in the proceeding below, and the commissioner's answers to those questions, as follows:
1. Under Conn. Gen. Stat. § 22a-622, can mercury, including mercury in amalgam capsules, be sold, distributed for promotional purposes, or provided to dental practitioners for use in the practice of dentistry? The answer is yes. If so, under what conditions can any such mercury be used? Such mercury can be used subject to the conditions specified in section 22a-622.
2. Is the sale or distribution for promotional purposes of mercury, including mercury in amalgam capsules, for use in the practice of dentistry prohibited under Conn. Gen. Stat. § 22a-617? No.
Court Exhibit A, "Declaratory Ruling," p. 19 (emphasis in original).
Test for Aggrievement
Connecticut's two-prong test for classical aggrievement is well established, as follows:
The fundamental test for determining [classical] aggrievement encompasses a well-settled twofold determination: [F]irst, the party claiming aggrievement must successfully demonstrate a specific, personal and legal interest in [the challenged action], as distinguished from a general interest, such as is the concern of all members of the community as a whole. Second, the party claiming aggrievement must successfully establish that this specific personal and legal interest has been specially and injuriously affected by the [challenged action] . . . Aggrievement is established if there is a possibility, as distinguished from a certainty, that some legally protected interest . . . has been adversely affected.
West Farms Mall, LLC v. West Hartford, 279 Conn. 1, 25, 901 A.2d 649 (2006) (citation omitted; internal quotation marks omitted).
While a plaintiff may meet the second prong by establishing the "possibility" of harm, in Goldfisher v. Connecticut Siting Council, 95 Conn.App. 193, 895 A.2d 286 (2006), the Appellate Court elaborated on the word "possibility," as follows: "[P]roof of a possibility of specific harm is not the same as mere speculation regarding harm. Although one may establish aggrievement by establishing the possibility of harm, mere speculation that harm may ensue is not an adequate basis for finding aggrievement." Id. at 198 (internal citation omitted; internal quotation marks omitted). In Walls v. Planning Zoning Commission, 176 Conn. 475, 408 A.2d 252 (1979), our Supreme Court concluded, "It is a well established principle that mere generalizations and fears . . . do not establish aggrievement." Id. at 478 (citation omitted).
Kundel First Prong
Kundel argues that he has a "specific, personal and legal interest" in the ruling which is different from that of all members of the community as a whole. West Farms Mall, at 25. He asserts that, because dentists have a greater exposure than the general public to fumes emanating from fillings containing mercury (amalgams), he, as a dentist, has a greater exposure to such fumes than the general public.
From the evidence introduced, the following findings are made in regard to Kundel's claims concerning the first prong:
Kundel is a dentist;
Kundel does not use mercury in his dental practice;
As part of his practice, Kundel is called upon to, and does, remove amalgams from his patients' mouths;
As a group, dentists have a modestly greater exposure to mercury fumes than the general population;
Not all dentists have a greater exposure to mercury fumes than the general public;
Kundel makes significant efforts in his dental practice to limit his exposure to mercury fumes; and,
Kundel introduced no credible evidence to establish that, in his dental office, he has a greater exposure to mercury fumes than the general public.
Kundel has not met his burden of establishing that his exposure to mercury fumes is greater than that of the general public. Therefore, Kundel has not proven that he has "a specific, personal and legal interest in [the ruling], as distinguished from a general interest, such as is the concern of all members of the community as a whole" in the ruling. West Farms Mall, at 25.
Notwithstanding Kundel's failure to satisfy the first prong of the test for classical aggrievement, the court will address Kundel's claims as to the second prong for purposes of judicial economy, in the event that an appeal is taken.
Second Prong
As noted above, the second prong of the classical aggrievement test is met if one establishes that there is a possibility, which is not based on mere speculation, that he has suffered, or will suffer, specific harm from the challenged action. Goldfisher, at 198. Kundel claims he has met that prong with evidence that his exposure to mercury fumes from amalgams has caused him, or will cause him, adverse physical effects.
From the evidence introduced, the following findings are made in regard to Kundel's claims concerning the second prong:
High levels of mercury in the body resulting from mercury fumes released by amalgams can cause serious injury to human tissue;
The standard method of determining a person's mercury level from amalgam fumes is urine testing;
On average, the urine of dentists contains somewhat more mercury from amalgam fumes than that of the general population;
Some dentists have levels of mercury in their urine from amalgam fumes which are lower than the levels in the general population;
The level of mercury from amalgam fumes in the average dentist's urine is not sufficient to cause injury to human cells; Kundel has not had the level of mercury in his urine from amalgam fumes tested;
Kundel had his meridians and hair tested to determine the level of mercury in his body;
Neither meridian testing nor hair testing is a medically recognized method of testing a person's level of mercury which results from exposure to amalgam fumes;
Kundel did not introduce credible evidence to establish the level of mercury from amalgam fumes in his body;
At a time when he was still putting amalgams in his patients' teeth, Kundel was fatigued and experienced other unusual symptoms;
At some time, Kundel stopped putting amalgams in his patients' teeth, had his own amalgams removed, changed his eating and drinking habits and changed the way he thinks;
Thereafter, Kundel felt better;
Fatigue is a symptom of most illnesses; and,
No credible evidence was introduced to link Kundel's fatigue and other unusual symptoms to his exposure as a dentist to fumes from amalgams in his patients' teeth.
Kundel has not met his burden of establishing the possibility, not based on mere speculation, that he has suffered, or will suffer, specific harm from his exposure to mercury fumes from amalgams in his patients' mouths. Goldfisher, at 198. Therefore, Kundel has not met his burden of proving that a "specific personal and legal interest [of his] has been specially and injuriously affected by the [ruling]." West Farms Mall, at 25.
Oakes First Prong
Oakes argues that she has an interest in the ruling which is different from that of all members of the community as a whole. In her brief she states that she "appears to be among a subset of individuals that suffers from unusually high sensitivity to mercury." (Plaintiff's brief, 6-13-06, p. 7). The court assumes, without deciding, that an unusually high sensitivity to mercury would meet the first prong of the aggrievement test for purposes of challenging the ruling.
From the evidence introduced, the following findings are made in regard to Oakes' claims concerning the first prong:
Sometime after Oakes had her first amalgam installed, when she was a child, she had difficulty concentrating, experienced bipolar disorder, mania, irritable bowel syndrome and high blood pressure;
Oakes' received psychiatric treatment for some of her health problems;
Oakes psychiatrist was unable to opine whether her mental health issues were related to her exposure to mercury;
Oakes changed many things in her life, including having her amalgams removed, after which she felt better; and,
Oakes introduced no credible evidence to establish that she suffers from unusually high sensitivity to mercury.
Oakes has not met her burden of establishing that she has an unusually high sensitivity to mercury fumes from amalgams. Therefore, Oakes has not proven that she has a "a specific personal and legal interest in [the ruling], as distinguished from a genera] interest, such as is the concern of all members of the community as a whole." West Farms Mall, at 25.
Notwithstanding Oakes' failure to satisfy the first prong of the test for classical aggrievement, the court will address Oakes' claims as to the second prong for purposes of judicial economy, in the event that an appeal is taken.
Second Prong
As noted above, the second prong is met if there is a possibility, not based on mere speculation, that Oakes has suffered, or will suffer, specific harm from the ruling Goldfisher, at 198. Oakes claims she has met that prong with her evidence that amalgams have caused her adverse physical effects.
All the findings made concerning Oakes' claims in regard to the first prong are relevant to the second prong. In addition, the following findings are made, from the evidence introduced, in regard to Oakes' claims concerning the second prong:
Oakes no longer permits amalgams to be installed in her teeth; and,
Oakes introduced no credible evidence to establish that amalgams have caused any of her health problems.
Oakes has not met her burden of establishing the possibility, not based on mere speculation, that she has suffered, or will suffer, specific harm from her exposure to amalgams. Goldfisher, at 198. Therefore, Oakes has not proven that a "specific personal and legal interest [of hers] has been specially and injuriously affected by [the ruling]." West Farms Mall, at 25.
III. CONCLUSION
Because both Kundel and Oakes have failed to meet either prong of the classical aggrievement test, they both lack standing to prosecute the appeal. Therefore, the motions are granted, and the appeal is dismissed.