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Ill. Pure Water v. Dir. of Public Health

OPINION FILED OCTOBER 19, 1984.

ILLINOIS PURE WATER COMMITTEE, INC., ET AL., APPELLEES,

v.

DIRECTOR OF PUBLIC HEALTH ET AL., APPELLANTS.



Appeal from the Circuit Court of Madison County, the Hon. Ronald Niemann, Judge, presiding. JUSTICE GOLDENHERSH DELIVERED THE OPINION OF THE COURT:

Rehearing denied November 30, 1984.

Defendants, the Director of the Department of Public Health of the State of Illinois, the Director of the Environmental Protection Agency of the State of Illinois, and the Alton Water Company, appealed (87 Ill.2d R. 302(a)) from the judgment of the circuit court of Madison County holding unconstitutional section 7a of "An Act to provide for safeguarding the public health by vesting certain measures of control and supervision in the Department of Public Health over public water supplies in the State" (Ill. Rev. Stat. 1981, ch. 111 1/2, par. 121g1). The court enjoined the Department of Public Health and the Environmental Protection Agency from enforcing the statute, and enjoined Alton Water Company from fluoridating its public water supply. We allowed defendants' motion to stay enforcement of the judgment pending appeal.

Section 7a provides:

"In order to protect the dental health of all citizens, especially children, the Department shall promulgate rules to provide for the addition of fluoride to public water supplies by the owners or official custodians thereof. Such rules shall provide for the addition of the fluoride to the water supplies so as to maintain a fluoride content of not less than 0.9 milligram per liter nor more than 1.2 milligrams per liter." Ill. Rev. Stat. 1981, ch. 111 1/2, par. 121g1.

This action was commenced on August 1, 1968, requesting that the Department of Public Health be enjoined from enforcing the fluoridation statute and that Alton Water Company be prevented from introducing fluorides into its system. The complaint alleged that fluoride in public drinking water is dangerous to health and that its use did not prevent dental caries (tooth decay). After several dismissals and reinstatements the complaint was dismissed for failure to state a cause of action. Plaintiffs appealed, and the appellate court, holding that the complaint stated a cause of action, reversed. (Illinois Pure Water Committee, Inc. v. Yoder (1972), 6 Ill. App.3d 659.) In 1975 the plaintiffs joined the Illinois Environmental Protection Agency as a party defendant.

Plaintiffs' seventh amended complaint contained three counts, but only count I survived the trial. Count II, alleging a class action, was dismissed for failure to meet the requirements set forth in section 57.2 of the Civil Practice Act (Ill. Rev. Stat. 1981, ch. 110, par. 57.2). Count III, which concerned a plaintiff who alleged that fluoridation denied him freedom of religion under the first and fourteenth amendments to the United States Constitution and article I of the Illinois Constitution of 1970 was also dismissed. In the surviving count (count I), plaintiffs sought a declaratory judgment that section 7(a) was an unreasonable exercise of the police power and unconstitutional. Plaintiffs also sought an order enjoining Alton Water Company from introducing fluoride into the public water supply and enjoining the Department of Public Health and the Environmental Protection Agency from enforcing the statute. Plaintiffs contended that compliance with the statute denied them their right under article XI of the 1970 Illinois Constitution to a healthful environment, denied them their right under article I, section 12, of the 1970 Illinois Constitution to a remedy for all wrongs, and denied them, without due process of law under the fifth amendment to the United States Constitution, and article I, section 2 of the 1970 Illinois Constitution, their right to health and life.

The record is voluminous. The circuit court heard testimony from 11 witnesses and examined 151 exhibits. In its order, the court reviewed the testimony and concluded that "The evidence breaks down in four (4) basic groups: Allergy and Intolerance, Chromosome Study Findings, Other Chemical and Biochemical Characteristics and Epidemiological Findings." It held that section 7a was unconstitutional as an unreasonable exercise of police power in violation of article I, section 2, and "in violation of the terms and spirit of Article XI sections 1 and 2" of the Constitution of 1970.

With respect to allergy and intolerance, Dr. George Waldbott, called by plaintiffs, described the symptoms of fluoride poisoning. He described several cases of patients diagnosed as having reactions intolerant to fluoride, whose symptoms disappeared when they stopped drinking fluoridated water. He described a study he had conducted in Annapolis, Maryland, following an accidental spill into the public water system of fluoride at a level greatly in excess of the one-part-per-million rate utilized in most fluoridation operations. He asserted that his findings in the study confirmed a connection between fluoride intoxication and drinking water.

On cross-examination Dr. Waldbott admitted that his patients' symptoms could have been psychosomatic. He admitted that his interviews with his patients were not "double-blind" studies; that is, his patients knew that they had been drinking fluoridated water. He also admitted that he had no formal training in research techniques and that allergic reactions to fluoride are quite rare.

In the area of chromosome-study findings, the plaintiffs offered the testimony of Dr. Aly Mohammed, a professor of biochemistry at the University of Missouri at Kansas City. He testified that his experiments showed a chromosomal aberration rate for mice, in bone marrow and spermatocyte cells, at various dosages of fluorides and at various times during his study. He concluded that sodium fluoride can cause chromosomal changes in mice even at concentrations as low as one part per million in drinking water. He stated that fluoride could be considered a mutagen, many of which are carcinogenic, and thus fluoride could be a carcinogen.

Dr. John Yiamouyiannis testified for plaintiffs and discussed other chemical and biochemical characteristics of fluoride. He stated that fluoride inhibits those enzymes which are responsible for the repair of damaged DNA molecules. He explained that this characteristic might make fluoride itself a carcinogen or that fluoride might give a selection advantage to existing cancer cells over normal cells.

Concerning epidemiological findings, Dr. Dean Burk, a cytochemist formerly employed by the National Cancer Institute, and Dr. Yiamouyiannis testified as to the findings of their study which showed an increase in cancer deaths following the introduction of fluoridation in certain cities. They studied the cancer death rates of the 10 largest cities in the United States that fluoridated their water supplies during the period from 1952 to 1956, using as a control group the 10 largest cities that remained nonfluoridated up to at least 1969. Dr. Yiamouyiannis explained that differences in the age, sex, or race of the populations could not have accounted for the difference in the cancer death rates.

In cross-examination it was admitted that neither Dr. Burk nor Dr. Yiamouyiannis had any formal training in the fields of epidemiology or statistics; that both were experts in other fields; and that this epidemiological study was their first. Dr. Burk admitted that he had an antifluoride stance before he undertook this study. Likewise, Dr. Yiamouyiannis acknowledged that he was the science director of the National Health Federation, and that group had hired him to be a fluoride fighter. Dr. Yiamouyiannis also admitted that he was paid by the Illinois Pure Water Committee to testify in this case and that this group is adamantly opposed to artificial fluoridation. The trial court noted that "Dr. Yiamouyiannis not only testified as an expert on behalf of plaintiffs, but also that he was present every day at the trial and seated at plaintiffs' counsels' [sic] table where he appeared to be giving advice and directing strategy to some degree. The conclusion was that Drs. Burk and Yiamouyiannis could hardly be termed `disinterested' scientists."

Defendants called Dr. Marilyn Lantz, Assistant Professor of Dentistry at the Dental School of Southern Illinois University. In addition to her degree of Doctor of Dental Medicine, she holds the degree of Ph. D in biochemistry. She disputed the findings to which Drs. Waldbott and Mohammed testified. Dr. Charles E. Bennett, employed by the Illinois Department of Health, who holds the degree of Ph. D in ecology, criticized the methods used by Drs. Burk and Yiamouyiannis in their study and pointed out that the statistics differed from those compiled by the U.S. Department of Health, Education and ...


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