Food & Water Watch, Inc. v. Environmental Protection Agency

Nature of the order

This is a Phase Two Final Pretrial Conference Order. The court organized the upcoming bench trial, identified undisputed and disputed factual issues, addressed witnesses and exhibits, and ruled on or discussed evidentiary disputes. It did not decide whether fluoridation chemicals added to public drinking water present an unreasonable risk of injury to health under the Toxic Substances Control Act.

Trial schedule and procedures

The court ordered a bench trial beginning January 31, 2024. The scheduled trial days were January 31; February 1, 2, 5, 6, 7, 9, 12, and 13, for nine days total, with February 14 available if logistical problems required an additional day. Trial days were set for 8:30 a.m. to 1:30 p.m., with counsel expected to be present by 8:00 a.m. unless otherwise directed.

Each side was allotted 18 hours for opening statements, direct and cross-examinations, and closing arguments. Parties had to provide at least 48 hours’ notice of intended witnesses, exhibits, and demonstratives, excluding weekends. Objections had to be raised by 6:00 p.m. on the day notice was given, followed by a meet-and-confer process and, if necessary, a joint statement filed 24 hours before the relevant trial day.

The trial would take place in person, except that one witness would testify through a deposition video. Exhibits would be displayed electronically. The court also ordered the trial broadcast live through Zoom, citing educational benefits and public interest. The parties had to submit a merged document containing proposed findings of fact and conclusions of law by January 24, 2024, and update the proposed findings on a rolling basis during trial.

Issues for trial

The parties agreed on facts concerning fluoride exposure, epidemiological study designs, risk assessment, the Toxic Substances Control Act’s risk-evaluation process, and scientific information about fluoride and neurodevelopment. The order states that approximately 200 million people in the United States lived in communities adding fluoridation chemicals to drinking water as of 2014, according to the Centers for Disease Control and Prevention.

Plaintiffs contended that fluoridation chemicals pose an unreasonable risk of neurotoxicity because the scientific literature shows a fluoride-related neurotoxicity hazard, the exposure levels from water fluoridation create a neurotoxicity risk, and that risk is unreasonable under the Environmental Protection Agency’s framework under the amended Toxic Substances Control Act. The Environmental Protection Agency disputed the sufficiency of the scientific evidence, the ability to connect urinary-fluoride measurements to total intake, the absence of an exposure assessment, and the scientific basis for finding an unreasonable risk.

Motion concerning Dr. Brian Berridge

The defendants sought to exclude testimony from Dr. Brian Berridge, who was the National Toxicology Program’s Scientific Director from 2018 to 2023. The court granted in part and denied in part the defendants’ first motion in limine, meaning a motion seeking a pretrial ruling limiting evidence.

The court excluded Dr. Berridge’s testimony about political influence on the decision not to publish the National Toxicology Program’s May 2022 fluoride monograph as a final document. The court concluded that this subject had limited and indirect value, while exploring it could create a time-consuming trial within the trial about what would have happened without political influence. The court stated that it would evaluate the monograph’s weight based on its scientific merits and that its status as an unpublished draft would have little bearing on that assessment.

The court allowed Dr. Berridge to testify as a fact witness about matters he personally observed, including the National Toxicology Program’s procedures and the factual processes used to produce the monograph and related meta-analysis. The court cautioned that testimony offering a general scientific opinion about the importance or scientific value of those methods, based on Dr. Berridge’s expertise rather than firsthand observation, would cross into expert testimony and could draw a sustained objection at trial.

Exhibit rulings

As to Plaintiffs’ Trial Exhibit 76, an email exchange concerning the delayed publication of the May 2022 monograph, the defendants’ objection was sustained. The court excluded the exhibit, at least under the same reasoning supporting exclusion of testimony about alleged political influence, while also noting hearsay concerns.

As to Plaintiffs’ Trial Exhibit 89 and related questionnaire exhibits 90 through 93, the court stated that it was inclined to deny the defendants’ objections. The questionnaires contained responses by Dr. Stanley Barone, the Environmental Protection Agency’s designated representative, and the court found that he had adopted the statements. The court said defense counsel could elicit clarifications and additional context on cross-examination. It also indicated that a limiting instruction would prevent use of portions that Dr. Barone had not adopted or that were not relevant.

The court reserved ruling on a document that plaintiffs sought to use to impeach the credibility of the defendants’ expert, Dr. Jesús Ibarluzea. The court was inclined to admit the document but would give Dr. Ibarluzea an opportunity to respond in a sworn written statement or through a short deposition. The parties were also permitted to submit a one-page joint letter brief addressing whether the document should be excluded because it was not timely produced during discovery.

Effect of the order

The order governed preparation for the second phase of trial and resolved some evidence disputes while leaving other exhibit issues tentative or unresolved. It did not enter judgment, dismiss claims, or rule on the scientific and statutory merits of the plaintiffs’ challenge.