Judge Rejects EPA’s Bid to Exclude Key Witness in Fluoride Lawsuit
In a blow to the U.S. Environmental Protection Agency (EPA), a federal judge on Tuesday ruled that a witness who claims he has direct knowledge of government agencies trying to suppress a key scientific report that concluded fluoride is neurotoxic to children may present his testimony.
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In a blow to the U.S. Environmental Protection Agency (EPA), a federal judge on Tuesday ruled that a witness who claims he has direct knowledge of government agencies trying to suppress a key scientific report that concluded fluoride is neurotoxic to children may present his testimony.
The ruling pertains to a lawsuit filed in 2017 by Food & Water Watch, the Fluoride Action Network (FAN) and others against the EPA after the agency denied the groups’ 2016 petition to end water fluoridation under the Toxic Substances Control Act.
Since then, the parties have been engaged in an ongoing legal battle. The trial’s first phase was held in federal court in San Francisco in June 2020.
However, U.S. District Judge Edward Chen put the proceedings on hold pending the release of the National Toxicology Program’s (NTP) systematic review of research available on the neurotoxic effects of fluoride.
The NTP is a federal research body within the U.S. Department of Health and Human Services (HHS). The program’s scientists studied the neurotoxic effects of fluoride for seven years before issuing a draft report concluding that “higher fluoride exposure is consistently associated with lower IQ in children.”
Although NTP scientists finalized the report in May 2022, it was March 2023 before the report was finally released, under a court order. According to emails obtained via Freedom of Information Act (FOIA) requests by the plaintiffs, top officials from HHS and the Centers for Disease Control and Prevention blocked the NTP from releasing the report.
Today, almost two years after the NTP scientists finalized the report, the final draft has not yet been published. Instead, the draft report continues to be mired in an ongoing process of repeated peer review, which FAN alleges is an attempt to “weaken, delay or kill” the report.
In December 2023, the EPA moved to exclude the testimony of Brian Berridge, DVM, Ph.D., the NTP’s scientific director at the time the report was produced and a key witness for the plaintiffs.
The EPA argued that Berridge’s testimony would speak to the political influence allegedly exerted to stop the NTP report’s publication, rather than to the scientific findings in the report, which are central to the trial. EPA attorneys argued Berridge’s testimony would be “unfairly prejudicial” to the agency.
The plaintiffs countered that given Berridge’s role at the NTP in overseeing the publication of the report — which the court recognized would be the “centerpiece of the dispute” in the second phase of the trial — the court would not be justified in disqualifying his testimony because it may reveal political pressures that prevented the NTP from publishing the manuscript.
At a pretrial status meeting held Monday in San Francisco, Chen agreed with the plaintiffs and ruled that Berridge could testify.
The ruling means that the NTP’s former scientific director will be able to testify at trial about the report, the peer review process and why he signed off on the May 2022 version of the report as a final and complete report that was ready for publication, Michael Connett, attorney for the plaintiffs, told The Defender.
“We are pleased with the court’s ruling and look forward to introducing testimony from one of NTP’s own scientists about NTP’s landmark review,” Connett said.
Connett added:
“The court placed this case on hold for almost three years in order to consider the NTP’s report, which the court has called the ‘centerpiece’ to the dispute. It is entirely fitting, therefore, that the court would want to hear testimony from NTP’s scientific director about this critical piece of evidence.”
Separating science and politics?
After waiting three years for the draft report to be made public, Chen held an Apr. 11, 2023, status conference on Zoom to schedule the next phase of the trial. He determined the second phase could go forward with the draft report, and set the end of January 2024 as the date for the trial to begin.
At that time, Connett informed the judge that based on information obtained via FOIA requests indicating the report had been suppressed, the plaintiffs planned further depositions to understand why the NTP wasn’t allowed to publish the report, “which was considered complete by NTP scientists.”
Connett argued the EPA would likely seek to at least partially discount the findings of the NTP report because it remained in draft form and had been criticized by reviewers in a politicized process.
But Chen said that given that the draft report had been released, he didn’t see merit in further investigating the motives behind the release. He said that it was “the science” regarding fluoride’s neurotoxicity, rather than the politics behind the case, that would decide the case.
“To me, the science is more important than whether politicians got involved to try to squash the report,” Chen stated.
“It’s reasonable to say, ‘Let’s focus on the science,’” Connett told The Defender at the time, “but the science here has been influenced by politics and it is difficult to separate the two.”
EPA’s attempt to exclude key witness
In December 2023, the EPA submitted a motion seeking to exclude Berridge’s testimony, based on Berridge’s previous testimony about the politics of the report suppression. However, the plaintiffs argued that Berridge’s testimony wasn’t relevant exclusively to politics, but spoke to the validity of the NTP report overall.
Berridge was tapped as the associate director of the NTP in 2018 and served as its scientific director from 2018 through 2023. Prior to joining the NTP, Berridge worked for 17 years in the pharmaceutical industry as a toxicological pathologist at Eli Lilly and then at GlaxoSmithKline.
Berridge wasn’t an author on the NTP report, but he was responsible for overseeing its production and signing off on its publication.
Emails obtained by the plaintiffs via FOIA included emails from Berridge, in which he wrote that there was an ongoing attempt to modify the report to satisfy interested actors.
“After 17 years in industry, I’ve seen efforts to modify messages to fit commercial interests. I wasn’t party to that there and I’m not game to do that here,” Berridge wrote.
He also submitted comments to the NTP’s Board of Scientific Counselors, which was evaluating the NTP’s response to peer reviewers, stating that as former scientific director of the NTP, he could speak to the care, scientific rigor, balanced representation and clear communication of the work.
“The inordinate and unprecedented challenge and review that have been applied to these products have, in my opinion, been obstructive,” Berridge said. He also called them inconsistent with the White House Office of Science and Technology’s policy that aims to protect the integrity and independence of science.
The EPA argued that the plaintiffs had first disclosed Berridge as a witness who could speak to the political influence over the NTP’s publication, therefore Berridge’s testimony would have “nothing to do with the heart of this matter — the merits of the scientific evidence about the potential hazard of water fluoridation,” and would instead relate to the “political influence issue.”
Although the plaintiffs were also calling Berridge as a witness to comment about the report itself, allowing him to testify would risk “sidetracking” the trial in a discussion about political suppression that Chen had deemed irrelevant, the EPA said.
EPA attorneys also argued that the EPA had not deposed Berridge because it thought his testimony wouldn’t be relevant. So his inclusion as an expert witness would be unfair to the agency.
The plaintiffs disagreed, arguing that Berridge’s testimony would address the weight the court should give to the NTP report. That includes clarifying NTP’s purpose — conducting hazard evaluations — the process of producing the report and why he determined the report was in fact finalized in March 2022.
His expertise is “clearly relevant,” the plaintiffs argued, and there is no basis for excluding his testimony.
Attorneys for the EPA did not respond to The Defender’s request for comment by the time of publication.
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