Application to Dismiss Application

­ CLINICALNEGLIGENCE (in part)

IN THE HIGH COURT OFJUSTICE CLAIM NO. HQ11X01668

QUEENS BENCH DIVISION

between:-

ROBIN PHILIP CLARKE

Claimant

and

THE DEPARTMENT OFHEALTH

/ THE CHIEF DENTALOFFICER

Defendant

APPLICATION TO DISMISS APPLICATION

Introduction

1. The Defendants’ Application for summary judgment or to strikeout the Claim should be dismissed without a hearing (i.e., at most only theirwritten rebuttals hereto), because it can be shown to be clearly an abuse ofthe Court and of the proper purpose of summary judgment or strike-out.

2. The proper purpose of strike-out and summary judgment is toact as a sort of filter and reduce inefficiency, in respect of statements ofcase (or parts thereof) of which the inadequacy can be shown both clearly andquickly. Thereby can be properlyavoided much further work on such cases.

3. A defendant may misuse the strike-out procedure, in the hopeof avoiding the matter coming to a proper trial, and in the hope of generatingconfusion and prejudicing the outcome by “turning the tables” on the claimantsuch that the claimant becomes treated as the defendant of his claim ratherthan given the proper opening presentation of the claim that the normal processrightly grants.

4. The application by the Defendants falls firmly into thelatter, abusive category. If there wereso much as a single clear fatal defect of the Claim, they could just state itand rest their case thereupon. Butinstead they only put forth a barrage of consistently misleading assertionswhich confusingly turn just about all the issues of the case on theirhead. It will be shown here that alleleven supposed faults of the Claim are entirely specious, 100%false.

The notion of a “reasonable body of expert opinion”that amalgam is harmless

5. Consider for instance, their opening premise, their Paragraph4(1) notion that “use of dental amalgam incontrovertibly accords with the viewsof a reasonable body of …. opinion”. That surely decisively demolishes the Claim, given their four pages ofimpressively-authoritative citations and the thick wadge of exhibits theyattach?

6. Nearlytwo pages of the Defendants’ Application are taken up with paragraph 9, inwhich they boast about how their “experts” are supported by that long quotationfrom a WHO 2009 report. And yet theseDefendants, despite having the great resources of the DH at their disposal,fail to mention that that WHO 2009 report was retracted five months earlier bythe WHO themselves due to being a fraudulent propaganda concoction (as indicatedby Exhibits RPC1, RPC2, RPC3, and conspicuous absence from the WHO’s ownwebsite). The Defendants are nowroutinely quoting that fraudulent report at their victims.

7. Theirparagraph 8 contains a similar long quotation from FDA 2009 as being supposedlybetter experts than the Claimants’ own experts. And yet they fail to mention the ongoing massive legal challengesto that FDA 2009, and nor do they mention the serious corruption surrounding it(Exhibit RPC4). While in charge ofpreparing FDA 2009, Commissioner Hamburg was improperly holding $200,000 Scheinamalgam stock options. She says sherecused herself from involvement but has refused to say quite when. She passedit on to her FDA successor Scharfstein who is currently hopelessly attemptingto defend his improper suspension of a famous mercury researcher in the MarkGeier v Maryland Board of Physicians case. Such are the Defendants’ “respectable” “experts”. A serious flaw of FDA 2009 was also pointedout in Particulars 23(g).

8. Then their paragraph7 contains yet another of these boasting quotations, this time from SCENIHR2008. And yet they make no mention ofthe damning critiques which were cited in the Particulars of Claimthemselves (Paras 23(a), 35(b), 35(c), plus I was going to add more inevidence stage). And of course theymake not the slightest rebuttal of those critiques either, because, as said inParticulars Para 29:

“These “experts” neveranswer the criticisms, or even acknowledge their existence. Because they haveno answers.”

A 2011 article in the Journal of Occupational Medicineand Toxicology (Exhibit RPC5) unpicks the pervasive falseness of theSCENIHR report, and in a concluding section headed “The role of organiseddentistry in SCENIHR and in defending amalgam” notes that:

“The SCENIHR amalgam expert group consistedof one engineer (chairman), four dentists, a toxicologist, and twovetinarians. The chairman had tightcontacts to the industry. No expertsfor medicine or environmental medicine were included. One must wonder why it was the dentists who represented thestrongest party in SCENIHR. Due totheir education and clinical experience, dentists are not able to judge medicalsystemic side effects caused by dental amalgam….”

And the critique by MatsHanson (RPC6) states that the SCENIHR is:

“….moredistinguishing for what it has left out than for what it contains. … We cannotfind any reference to…. Likewise wefind no information on…. Not so forother health effects….. We must assumethe omission is deliberate…. We canfind no discussion on…. This“greenwashing” report will not be accepted in Scandinavian countries where theawareness of amalgam toxicity is widespread and the report is more akin to the“science” produced by the tobacco industry.”

And numerous otherequally damning critiques of SCENIHR’s “expert” report are publicly availableto read, but again, never mentioned by the Defendants (or by the SCENIHRthemselves).

9. Notsatisfied with the above three-card trick, the Defendants add to it (inParagraph 10) yet another of these trade propaganda scripts, the WHO/FDI 1997statement, the untruthfulness of which was already shown in Particulars Para23(d), but of course they make no mention of that either.

10. You can thus see thatthe greater part of the Defendants’ Application is taken up with that parade ofmisleading misinformation, well-designed to mislead a reader that they reallydo have all that sound respectable expertise on their side, when in realitytheir very Application itself proves to be an outstanding accidental WitnessStatement illustrating the exact counter-point: that their “experts” are indeed in realityfalsifying charlatans who only present one side of the case and pretend theother side does not exist
—which was exactly the tortious conduct being alleged in this Claim.

So why should we believe anything else that’s written above the Defendants’“Statement of Truth”? And why, if thereis any genuine expertise defending amalgam usage, do they instead soconsistently only call up pseudo-expertise, again and again, in their support?

~~~~~~~~~~

11. It will next be shownthat the entire remaining content of the Defendants’ Application is equallymisleading and meritless, indeed outrageous.

Alleged deficiency in respect of evidence of causation

12. The assertions in theDefendants’ Paragraph 11 about a supposed deficiency of expert evidence oncausation were already addressed in the Addendum re Experts, to which they havehere made no reference let alone rebuttal – because, again, they have noanswers. And the point that “there areno experts” is now even more laid bare, thanks to the Defendants’self-incriminating paragraphs 7, 8, 9, and 10, exposed hereabove.

Yet more pseudo-expertise on causation

13. Their Paragraph 11further asserts that KH7 (RPC7 herewith) constitutes useful expertcounter-evidence on causation. And yetthatletter from Dr Whittington was written on the basis of merely two meetings tochat with me, 34 years ago. Dr W. was aGeneral Practitioner with no expertise in psychiatry or toxicology, did notrule out mercury, and no tests were done. He merely suggested that commonplace Freudian speculation that “Thesewould seem to relate to his upbringing.”, which is nowadays considered verydated and non-scientific in scientific circles.

Alleged lack of historical opinion against amalgam usage,and of duty of care

14. The next supposedlydamning fault is raised in Paragraph 4(2), that “The Claimant does not plead oridentify any reasonable body of scientific / medical / dental opinion which suggestedthat at that time [40 years ago] that the use of dental amalgam was clinicallyinappropriate.”

15. On the contrary,Particulars Paragraphs 17 and 18 gave citations on exactly that point, andindicated the existence of more: “Numerous studies and reports exist, forexample:… Numerous examplesinclude:…” Substantial cuts were madeto the Particulars here, due to complaints that it was far too lengthy. Andthis case has not even got to the evidence stage yet.

16. In the context of themany regular intense condemnations of the use of amalgam, and testimony to itscausing classic mercury vapour disabilities, in the 1960s the duty of careburden of proof lay on the Defendants to show safety. But instead they sided with the amalgam trade lobby andtheir concealment of the truth, exactlyas is now exposed in their latest disgraceful document that is the Defendants’Application.

17. For approximately fortyyears the Claimant was incapacitated by the classic mercury poisoningsyndrome repeatedly described by these earlier sources, and yet in all thattime the Defendants did nothing about it except mislead yet more victims withcomplete lack of informed consent and with absolute denial that there was anypossibility of even the slightest causation by amalgam (as per nauseatinglylengthy Particulars Para 27).

Alleged lack of pertinent advice from the Defendants

18. Paragraph 6 states “I amunable to identify …. any asserted advice given by the Defendants at the time…. over 40 years ago.” Exhibit RPC8herewith shows advice being given by the Chief Dental Officer in 1998. Its second sentence, “COT last consideredthe safety of dental amalgam in 1986…” makes clear that a previous such adviceoperation took place in 1986 and there was at least one previous to that. Subsequent to the Emergency Medical Servicefounded in 1939, the NHS was founded in 1948. It is unreasonable to expect the Claimant to locate some advice documentfrom the mid-1960s when the advice or negligent absence thereof obviouslyexisted anyway. They wouldn’t haveadvised for instance use of leeches or head-hammering therapy in the theNHS. But they did advise (or notcaution against) storage of large lumps of a notorious neurotoxin in mouths twoinches from brains, because a profitable trade lobby pressed them to.

19. RPC8 shows that theDefendants were giving such false advice more than 25 years ago and therebyhave for many years prevented the due diagnosis and treatment of the Claimant’sclassic mercury poisoning syndrome. And it is too improbable to deny that already inthe 1960s the same advice existed in fact or implicitly in omission(suppressing valid risk warnings), and thus was also causal to the initialinstallation of nineteen amalgams in the teenage Claimant at that time.

Alleged public law immunity and hence lack of duty of care

20. Paragraph 6 continues byasserting public law immunity, and concluding with the assertion that theproper defendants would be the dentists involved. But dentists are not toxicologists and do not pretend to be. Just as a High Court Judge is not soarrogant as to pretend to be a medical expert, likewise dentists reasonablygive trust to the advice so confidently pressed on them by the Defendants indocuments such as RPC8. The dentistscould not reasonably be considered negligent in doing so, and indeed the blameproperly lies with the authors of the defective advice, so a judgment against adentist would be both unjust and unavailable. Redress accordingly can only be against the authors of the negligence,namely the extant Defendants.

21. Paragraph 6 furthermisleads with the assertion that “The expression of views by the Government andChief Medical Officer are obviously public acts which cannot give rise to aprivate law duty.” Exhibit RPC8 explicitlyshows “advice”, medical clinical practice advice, being given not to thegeneral public but specifically to an audience of “General DentalPractitioners” and “General Medical Practitioners”. It is thus obvious that RPC8 is medical advice from officersacting as higher-level advisory consultants in the medical system. “Free from risk” is a statement of medicaladvice. A statement of public policywould consist instead of for instance “Amalgam is hereby permitted for use inall patients’ teeth”.

22. And in line with thisthe Defendants’ website repeatedly states that the role of the CDO is toadvise, or to give advice, as an advisor.

23. Compared to thespin-doctoring characterisation as “expression of views by the Government andits Chief Medical Officer”, a greatly more reasonable characterisation is asfollows. NHS junior doctors and theirassistants are liable for negligent clinical practice. There is thereupon a heirarchy of moresenior medics and consultants who may provide advice to the preceding. They are all liable for any negligentclinical advice. They risk losing theirjobs for it.
This goes up the scale until it reaches the top ranks who give top-level adviceon what the lower practitioners should be doing clinically. These top-level personnel, such as the ChiefDental Officer and the MRHA, are thus performing exactly the same function ofclinical advice as are the lower clinical consultants, hence with the same dutyof care to the patients to whom their advice is applied. And yet the Defendants would have us understandthat a peculiar immunity from blame for negligence suddenly arises in respectof just those top levels; and that a peculiar inaccessibility of justicesuddenly arises at that same point, in peculiarly sharp distinction from thewell-developed system of compensation for all other acts of NHS (and hence DH)negligence.

24. Even though the clinicaladvice from the CDO is at a nationwide level, there arises none of theconsiderations which elsewhere might justify public law immunity. Notably, the Defendants have not put forthany actual such consideration. It isnot a matter of competing demands on resources, or of valid politicalchoice. It is a matter of choosing toendanger the health of un‑informed victims by practicing false medicine forprofiteering purposes, and then systematically pretending it has not happenedand persistently preventing due treatment. And a recent public commentary by BirminghamLaw Society stated the important consideration that:

”Clinicalnegligence litigation has acted as a major incentive and source of learning topromote better patient safety. If people cannot challenge the standard of carethey receive there is a risk that the NHS will become complacent and fail tolearn lessons or seek to improve.”

25. It is not even that the Defendantsshould have banned amalgam outright, but only that they should not havepromulgated such a regime of falsehood about it, enduringly preventing anyrestorative treatment of those who were injured by it. And now seeking to prevent even any fundingfor the treatment they callously deny, in their perverted concept of justice.

26. It is not even as if theClaimant is here seeking to have Dr Cockroft personally dragged before a juryand then sacked and bankrupted for injuring the Claimant and others (thoughmany would).

Allegation of 2004 or 2007 “date of knowledge”

27.The Paragraph 12 allegation of being time-barred is equallyfalse.

28.Contrary to their yet further false assertions, theDefendants’ exhibits KH8 and KH9 (here RPC9 and RPC10) show no knowledgewhatsoever, neither of causation nor, equally critically, of negligenceof DH advice, let alone any suggestion of possible legal action or even who adefendant might be.

29. Asserting something is absolutely different fromknowing it. Thousands of peopleadamantly assert that three of the World Trade Center towers weredemolished by secretly-planted bombs and then fell at free-fall speed intotheir own footprints. Yet theycertainly don’t know any of this, and their “knowledge” would rightly bedismissed by every court in the world.

30.The Claimant did assert his “confidence” that the amalgam wascausal, but only by way of a desperate attempt to persuade them to providereasonable precautionary treatment for his terrible illness. He had not at that time managed to findanything even remotely like real compelling scientific evidence to provecausation (indeed none of that now raised in the Particulars, let alone theAddendum), and so there would have been not the slightest prospect of filing awinnable claim on the basis of his mere assertions and gross lack of knowledgeat that time, especially in the face of a daunting parade of official"experts" deceiving everyone with absolute assertions that there wasnot the slightest evidence of harm (as per above).

31.The email KH8 / RPC9 was concerned with the lack of evidenceof safety, which is quite distinct from any possible positive evidence ofharm. No knowledge of evidence ofcausation of the injuries is indicated in it. The only content relating to any positive harmfulness is the quotationsfrom the Swedish 2003 report, and yet the most that that report contains isthose mere assertions that “amalgam must be considered an unsuitablematerial”, and “amalgam should be eliminated in dental care”. No supporting scientific references orargument were contained in that 2003 report by which a claimant could defendthose assertions against the weight of seemingly much more authoritativecounter-assertions such as those paraded in this very Defendants’ Application. Let alone establish causality of theClaimant’s particular symptoms, of which nothing was even asserted inthat 2003 report. It was preciselybecause of the inadequacy of that report that the Claimant was several yearsafterwards still trying to find actual scientific evidence that could converthis fears into genuine confident knowledge of what was causing hisdisabilities.

32.The letter KH9 / RPC10 was primarily about the Claimant’supdate review of his autism theory (i.e. the paper it mentioned as being there-attached),which had nothing whatsoever to do with the Claimant’s illness as he has neverhad (nor claimed to have) any autism-type condition, which would not begin atage 17 anyway.

33.That letter did contain a desperate appeal for treatment ofhis terrible illness. If he had had anysignificant evidence of causation to call upon, he would surely have includedit there. He did not, and we cantherefore infer that he indeed did not have any such knowledge. KH9 / RPC10 is therefore evidence of theexact contrary of what the Defendants assert. And exactly likewise the request for precautionary treatment in emailKH8/ RPC9.

34.Furthermore, the “date ofknowledge” also cannot precede “date of knowledge” of the causal negligence ofadvice by the Defendants, which did not become apparent to the Claimant untilseveral years later still. Andfurtherfurthermore, a case in the US Federal Appeals Court (exhibit RPC11)recently ruled that date of knowledge can only begin once the “medicalcommunity at large” recognises a link, in which case has it even occurred yet?

35.The whole concept of “date of knowledge” is flawed in the context of acase such as this where there is in reality only a suspicion, a theory, insupport of which bits of evidencegradually accumulate, with no decisive date such as when a patient discovers anobject has been left in his chest. The“date of knowledge” concept originated with that very different sort of case inmind.

Allegation that there are no good reasons fordisapplying a time-limit

36.This section is superflous in view of the preceding one, butwill still be included here so as to show the 100% completeness of thevacuousness of the Defendants’ Application.

37.Their Paragraph 12 asserts that “there can be no good reasonsfor dis-applying the time limit in this case”. But yet again this is falsehood.

38.Supposedly the fact that the Claimant’s disabilities havespanned about four decades, and the Claimant has been increasingly desperatelyappealing for treatment for seven years, raises an “obvious prejudice caused bythis additional delay in issuing proceedings”. Really? Would not an “obvious”fairer view be that in the context of those greater time-spans of inexcusableinaction by the Defendants themselves, anyone demanding a mere three-year limitationperiod would be positively mean-minded? Most victims of the same experiences as this claimant would have toppedthemselves long ago. Relevant toLimitation Act 1980 s.33(3)(b) and (d).

39.This unreasonableness is all the more so, given that as per LimitationAct 1980 s.33(3)(c) the Defendants have been very far from assisting withenabling of any of the “knowledge” in question.

40.And even more so, given that the Claimant (/initiatinglitigant) has been during much of the last few years severely mentallyincapacitated to near non-functionality by the very same Defendants’fault. Indeed for much of the timemight reasonably be considered to have had a status of legal incapacity, suchwas his mental paralysis (as per Particulars Para 44(c)). Even this present document has taken himmany days of struggle even now, when his obsessive countermeasures have broughtconsiderable alleviation.

41.In this connection, please note (i) the 1926 testimony ofProf. Alfred Stock about the mental paralysis he experienced in his own dentalmercury poisoning and subsequent recovery, which can easily be found on theinternet by searching for Alfred Stock Birgit Calhoun; and (ii) the quotationsbelow from pages 71-2 of Amalgam Illness by Andrew Hall Cutler (ExhibitRPC12) (which facts would in principle, if the whole of this section were notsuperfluous anyway, have major relevance to the considerations of LimitationAct 1980 s.33(3)(a)).

But firstly note that this Claimant unlike Prof Stock etal. has had to singlehandedly attempt to manage his household in poverty atthe same time as endlessly trying to persuade the Defendants to providetreatment and meanwhile trying to keep himself (a bit) sane.

“Mercury poisoned people also do not have as manyhours in the day that they are able to concentrate, pay attention and be activeas other people do. Thus a few minutesof unnecessary work on their healthcare is a greater burden on them than it ison other patients.” “Procrastination[or rather this Claimant would describe it as “indecision”] is a symptom ofmercury poisoning. You will do it alot. Learn all of the ways you can todefeat it [in my experience none] and use them. Have your friends and family help with this too [some chance].”[p.72:] “How to keep your life together during treatment: There will be a long period of time duringwhich you just won’t be able to get as much done as you would like. You are probably already behind in life becauseof this. Focus on catching up andkeeping up! Don’t take any new thingson! Do essential things and ignore therest!” “For practical purposes youdon’t have as much time in the day as other people. So don’t take stuff on that “just takes a minute”. You don’t haveas many minutes to spare as other people do!” “Simplify life, avoid stress [so try starting a legal action as alitigant in person].”

And yet we are to believe that it would be so unfair onthe pathetic powerless little Department of Health to have this Claimantpersecuting them three years too late?

The amalgam allegedly not having been placed by theDefendants

42.The Defendants’ remaining piece of rubbish is their Paragraph4(4) statement that “The dental amalgam was not placed into the Claimant’steeth by the Defendants ….”. That isboth untrue and irrelevant (hence indeed not mentioned in the Particulars).

43.It is irrelevant because even if all 19 amalgams had beenplaced by private dentists, that placement would still have been caused by theDefendants’ negligent advice which was given to and applicable to all dentistryin the UK rather than only NHS. This isevidenced in Exhibit RPC8.

44.It is additionally irrelevant because the original placementwas only a small part of the causation of the injury. The failure to remove it, or even notify anyone of the risk, inall the subsequent many years, was a larger part of the causation, as theClaimant could otherwise have achieved a recovery by removal and detoxificationas experienced by many others victims.

45.It is anyway untrue as should have been apparent from the Claimants’registration with the (NHS) Dental Hospital for 26 years. Subsequent to the Dental Hospital theClaimant has had only NHS treatment, from dentist Deborah Morse. And prior to the Dental Hospital theClaimant also only had NHS treatment, by dentists in the towns local to hishome. Though as the Dental Notes frombefore the Hospital were not supplied to him even on second request, therecords have presumably been mislaid. But in any case, if the Defendants really want to make a big issue ofthis irrelevant point, then the Claimant can provide witness statements from noless than six other family members, attesting that the family of five childrenwas too poor to afford private treatment (and indeed the Claimant qualified forfree school meals) and most certainly would not have had private dentistsinstalling nineteen amalgams while he was only a teenager.

Conclusion

46. The Defendants’sApplication seeks to make out ten damning flaws of the Claim, namely:
(1) a reasonable body of expert opinion showing harmlessness;
(2) a deficiency of evidence of causation;
(3) evidence of an alternative causation;.
(4) lack of earlier reasonable opinion of harmfulness;
(5) a lack of any pertinent advice from the Defendants;
(6) public law immunity;
(7) lack of duty of care;
(8) 2004 or 2007 date of knowledge;
(9) no good reason for disapplying of time-limit; and
(10) the amalgam not being placed by the Defendants.

47. And yet it has here been shown that every oneof those alleged flaws is bogus, ten out of ten, 100% timewastingfalsehood. Not a single one of the manysentences makes any valid challenge to the Claim. And we can only suppose that this is as powerful as their Defence(not yet filed, and now overdue) is going to get, else they would have raised amore sound point here already. Itfollows that it is the Defence that has
(11) “poor prospects of success” rather than the Claim.

48. The Defendants’Application for Summary Judgment or to Strike Out the Claim should therefore berecognised as entirely devoid of merit, unworthy, outrageously deceiving, andan abuse of the Court’s processes, and for these reasons dismissed without ahearing unless they can provide written repre-sentations which clearly disprovethe facts and evidence here submitted.

49. At the very least theyshould specify a maximum of two clear, unambiguous, fatal defects of the Claimwhich their application has raised. Andit is already clear from the foregoing that they cannot.

STATEMENT OF TRUTH

I believe that the facts stated in this Application ToDismiss Application are true.

---------------------------------------------------------------

Signed

Robin Philip Clarke

Claimant

Dated