IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS COUNTY DEPARTMENT, CHANCERY DIVISION Defendants, FEDERAL INSURANCE COMPANY ) ) Plaintiff, ) ) Case No.: = v ) ) AMERICAN DENTAL ASSOCIATION, ) a es JESSICA KERGER, and RICHARD KERGER ) uy ) ) COMPLAINT FOR DECLARATORY JUDGMENT AND OTHER RELIEF SOMPLAINT FOR DECLARATORY JUDGMENT AND OTHER RELIEF Now comes Plaintiff, FEDERAL INSURANCE COMPANY (“Federal”), by and through its attorneys, KAPLAN & VON OHLEN, and for its complaint for declaratory judgment and other relief Pursuant to Section 2-701 of the Illinois Code of Civil Procedure states as follows: GENERAL ALLEGATIONS THE PARTIES AND SUITS 1. Plaintiff, Federal is a corporation duly organized and existing under and by virtue of the laws of the State of Indiana and is in the business of writing, inter alia, liability insurance policies Pursuant to their terms, conditions, limitations, exclusions, provisions and not otherwise. 2. Defendant, American Dental Association (hereinafter “ADA"), is a corporation incorporated under the laws of the State of Ilinois having its principal place of business in Chicago, Mlinois. 3. Defendants, Jessica Kerger and Richard Kerger, reside at 1972 Potomac Drive, Toledo, Ohio 43607. 4. The ADA is a defendant in a suit filed by Jessica Kerger and Richard Kerger now pending in the Court of Common Pleas, Cuyahoga County, Ohio (hereinafter “The Kerger Suit")‘wherein Jessica Kerger alleges to have sustained mercury poisoning and specific bodily injuries from mercury laden dental amalgam manufactured by Johnson & Johnson and Dentsply, International (Dentsply") 5. The Kerger Suit was first forwarded to Federal on or about May 5, 2004, A true and accurate copy of this complaint is attached hereto as Federal’s Exhibit A. 6. On or about January 11, 2005, the ADA forwarded “Plaintiffs’ First Amended Complaint” that on information and belief was filed on January 4, 2005 by the Kergers in the same court, county and under the same case number as the original complaint. A copy of “Plaintiffs’ First Amended Complaint” (hereinafter “amended complaint”) is attached hereto as Federal’s Exhibit B. 7. ‘The original and amended complaints are brought on behalf of the same plaintiffs and sue the same defendants, Dentsply, Johnson & Johnson, the ADA, and Ohio Dental Association. The original complaint, consists of 135 paragraphs and 11 counts. The counts against the ADA are “Count Bight: Fraud; Count Nine: Violation of the Ohio Deceptive Trade Practices Act; Count Ten: Lack of Informed Consent; and Count Eleven: Loss of Consortium”. (Federal's Exhibit A). 8. The amended complaint consists of 167 pararaphs and 12 counts. Counts against the id, Count Nine: Violation of the Ohio Deceptive Trade Practices Act: Count Ten: Negligence; Count Eleven: Lack of Informed Consent; and Count Twelve: Loss of ADA are “Count Bight: Er Consortium”. (Federal’s Exhibit B). 9. The first claim against the ADA, in the original complaint and Plaintiffs’ First Amended Complaint, sounds in fraud. The original complaint’s “Count Eigh raud” consists of 24 Paragraphs of allegations. These facts are alleged and reincorporated into each of the complaint’s counts against ADA including, Count Nine: Violation of the Ohio Deceptive Trade Practices ActCount Ten: Lack of Informed Consent: and Count Eleven: Loss of Consortium’, regardless of the name of the count. 10. The amended complaint’s “Count Bight: Fraud” consists of 44 paragraphs of allegations. These facts are alleged and reincorporated into each of the amended complaint’ counts against ADA, including Count Nine: Violation of the Ohio Deceptive Trade Practices Act; Count Ten: Negligence; Count Eleven: Lack of Informed Consent; and Count Twelve: Loss of Consortium’, regardless of the name of the count. 11. The final paragraph of the fraud count in the original and amended complaints alleges: “The fraudulent actions and omissions of Defendant ADA and Defendant ODA toward Plaintiff were conducted with malice and knowledge of the harm that would be caused, and were gross, egregious, and/or aggravated by the existence of malice and ill will, and/or constituted a corrupt condition of affairs for which Plaintiff seeks the additional award of punitive damages”. 12. Neither the original complaint nor the amended complaint allege the dates when the amalgam was implanted nor do they allege the dates when Ms. Kerger sustained bodily injury, sickness or disease. 13, Federal issued Policy Number 0681-29-25 effective December 9, 1965 until cancelled, January 1, 2000. This policy provided general liability insurance coverage and the declarations to the policy were changed from year to year as were some of the policy's endorsements and provisions. 14, The December 9, 1965 through December 9, 1974 policy term contained the following insuring agreement definitions and exclusions:LIABILITY FOR PERSONAL INJURY AND PROPERTY DAMAGE, ‘The Company agrees to pay on behalf of the Insured all sums which the Insured shall become legally obligated to pay as damages because of personal injury or property damage caused by an occurrence, ‘The Company shall defend any suit against the Insured alleging such personal injury or property damage and seeking damages on account thereof, even if such suit is groundless, false or fraudulent; but the Company may make such investigation, negotiation and settlement of any claim or suit as it deems expedient. “personal injury" meaning bodily injury, sickness, discase, disability, death or if arising out of the foregoing, mental anguish and mental injury; and also including injury sustained by any person or organization if arising our of false arrest, wrongful detention or false imprisonment; malicious prosecution; invasion of privaey; wrongful eviction; wrongful entry; libel, slander or defamation of character; excluding such injury arising out of: a. the willful violation ofa penal statute or ordinance committed by or with the knowledge of or consent of any Insured; b. any advertising, broadcasting or telecasting activities by or for any Insured “occurrence” meaning an event, or continuous or repeated exposure to conditions, which lunexpectedly and unintentionally causes personal injury, or injury to or destruction of tangible property during the policy period. All such exposure to substantially the same general conditions existing at or emanating from cach location shall be deemed one occurrence. Exclusions: This policy does not apply under Section II (©) to personal injury or property damage caused intentionally by or at the direction of the Insured. 15. The 12/9/74-12/9/85 term of the policy contained the following Insuring Agreement and definitions and exclusions: The Company will pay on behalf of the insured all sums which the insured shall become obligated to pay as damages by reason of liability to which this insurance applies, imposed by Taw or assumed by the insured under any written contract, for bodily injury, property damage or personal injury caused by an occurrence and the Company shall have the right and duty to defend any suit against the insured seeking damages on account of such bodily injury, property damage or personal injury, even if any of the allegations of the suit are groundless, 4false or fraudulent, and may make such investigation and settlement of any claim or suit as it deems expedient. The Company shall not be obligated to pay any claim or judgment or to defend any suit after the applicable limit of the Company's liability has been exhausted by payment of judgments or settlements. “bodily injury" meaning bodily injury, sickness or disease sustained by an person which occurs during the policy period, including death at any time resulting therefrom “occurrence” means an event, including continuous or repeated exposure to conditions, which results in bodily injury, property damage, personal injury or under umbrella liability insurance which results in advertising injury, Exclusion: Nor does this insurance apply to: 4. bodily injury or property damage arising out of an event, the result of which was expected or intended from the standpoint of insured, 16. The 12/9/85-88 term contained the following Insuring Agreement, de jons and exclusion: BODILY INJURY, PROPERTY DAMAGE, PERSONAL INJURY OR ADVERTISING INJURY We will pay damages the insured becomes legally obligated to pay by reason of liability imposed by law or assumed under any contract or agreement because of: bodily injury or property damage caused by an occurrence; or personal injury or advertising injury covered by this insurance. We will defend any suit against the insured seeking such damages. We may investigate and settle at our discretion any claim or suit. We will not defend any suit or pay any claim after we have used up the applicable Limit of Insurance by payment of judgments or settlements. BODILY INJURY means bodily injury, sickness, disease or, if arising out of the foregoing, mental anguish or mental injury sustained by any person which occurs during the policy period, including death at any time resulting therefrom,OCCURRENCE means an event, including continuous or repeated exposure to conditions which results in bodily injury or property damage. Exclusion: ‘This insurance does not apply to: INTENTIONAL ACTS bodily injury or property damage expected or intended from the standpoint of the insured. BUT this exclusion does not apply to bodily injury, resulting from the use of reasonable force to protect persons or property. 17, The 12/9/88-1/1/96 term of the policy contained the following Insuring Agreement, definitions and exclusion: BODILY INJURY, PROPERTY DAMAGE, PERSONAL INJURY, AND ADVERTISING INJURY, ‘We will pay damages the insured becomes legally obligated to pay by reason of liabi imposed by law or assumed under an insured contract because of: bodily injury or property damage caused by an oceurrence; or personal injury or advertising injury to which this insurance applies. This insurance applies: 1. to bodily injury or property damage which occurs during the policy period; and 2. to personal injury or advertising injury only if caused by an offense committed during the policy period. We will defend any claim or suit against the insured secking such damages. We will pay in addition to the applicable limit of insurance the defense expense. Our obligation to defend and pay for defense expense is limited as described under DEFENSE OF CLAIMS OR surrs.We have no obligation under this insurance to make payments or to perform acts or services except as provided above. Damages include prejudgment interest awarded against the insured on the part of the judgment we pay. Damages because of bodily injury include damages claimed hy any person or organization for care, loss of services or death resulting at any time from the bodily injury. Property Damage that is loss of use of tangible property that is not physically injured shall be deemed to occur at the time of the occurrence that caused it. BODILY INJURY means bodily injury, sickness or disease sustained by a person, including death resulting from any of these at any time OCCURRENCE means an accident, including continuous or repeated exposure to substantially the same general harmful conditions which results in bodily injury or property damage. Exclusion: This insurance does not apply to INTENTIONAL ACTS bodily injury or property damage, expected or intended from the standpoint of the insured. 18, The 1/1/96-1/1/00 terms of the policy contains the following Insuring Agreement, definitions and exclusion: Coverage Bodily Injury, Property Damage, Advertising Injury, And Personal Injury Subject to the applicable Limits OF Insurance, we will pay damages the insured becomes legally obligated to pay by reason of liability imposed by law or assumed under an insured contract for: * bodily injury or property damage to which this insurance applies caused by an occurrence; or* advertising injury or personal injury to which this insurance applies caused by an offense. This insurance applies to: * bodily injury or property damage which occurs during the policy period; and * advertising injury or personal injury caused by an offense committed during the policy period. Damages for bodily injury include damages claimed by any person or organization for care or loss of services resulting at any time from the bodily injury. Investigation, Defense And Payment Of Damages We will have the right and duty to defend any insured against a suit seeking damages for bodily injury, property damage, advertising injury, or personal injury. However, we will have no duty to defend any insured against a suit seeking damages to whieh this insurance does not apply. We may at our discrotion investigate any occurrence or offense and seitle any claim or suit that may result, The amount we will pay for damages is limited as described in Limits Of Insurance. Our right and duty to defend end when we have used up the applicable Limit Of Insurance in the payment of judgments or settlements under bodily injury, property damage, advertising injury, personal injury or medical expense, We have no further obligation or liability to pay sums or perform acts or services unless explicitly provided for under Supplementary Payments shown below. Bodily injury means physical: : injury, . sickness, or . disease sustained by a person and, if arising out of the foregoing, mental anguish, ‘mental injury, shock, humiliation or death at any time Occurrence means an accident, including continuous or repeated exposure to substantially the same general harmful conditions. Exclusion:Expected or Intended Injury This insurance does not apply to bodily injury or property damage which results from an act that: is intended by the insured; or can be expected from the standpoint of reasonable person to cause bodily injury or property damage, even if the injury or damage is a different degree or type than actually intended or expected This exclusion does not apply to bodily injury resulting from the use of reasonable force to protect persons or property (96-2000 exclusion?) THE CONTENTIONS 19. On information and belief, the ADA contends that pursuant to Policy 0681-29-25, Federal has a duty to defend the original and amended complaint and indemnify the ADA if it becomes legally obligated to pay money by reason of liability imposed by law because of bodily injury or property damage sustained by the Kergers. 20. Federal contends that, based upon the allegations of the original and amended complaint, in comparison to the relevant provisions of Policy 0681-29-25, Federal has no duty to defend the original or amended complaint and no indemnity obligations. 21. Federal contends that the actual tortious conduct upon which this suit is based was clearly intentional and not merely neglizent or accidental and that any resulting bodily injury or property damage could not be fortuitous, or caused by an occurre: 22, Federal contends that the allegations of cach of the underlying complaints are clearin setting forth an actual course of conduct that resulted in injuries and damages that were intended or expected. 23. Federal contends that any award of punitive damages in favor of the Kergers would not be covered, as a matter of public policy.24. An actual controversy exists between Federal and the ADA under Section 2-701 of the Illinois Code of Civil Procedure, wherein this Court is vested with the power to declare the rights and obligations of the parties hereto. WHEREFORE, FEDERAL INSURANCE COMPANY, respectfully prays that this Honorable Court make the following declarations in favor of FEDERAL INSURANCE COMPANY and against THE AMERICAN DENTAL ASSOCIATION: A. Declaring that Federal Insurance Company has no duty to defend or pay defense costs incurred in defending the original Kerger complaint. B. Declaring that Federal Insurance Company bas no duty to defend or pay defense costs incurred in defending the Plaintiffs’ First Amended Complaint. C. Declaring that Federal Insurance Company has no duty to indemnify damages that the ADA may become legally obligated to pay by reason of liability imposed by law because of bodily injury or property damage sustained by either Jessica Kerger or Richard Kerger. D. Declaring that Federal Insurance Company has no duty to indemnify damages the ADA may become legally obligated to pay by reason of liability imposed by law for punitive damages awarded to either Jessica Kerger or Richard Kergcr. B. Declaring and granting such other relief as this Honorable Court deems necessary and proper. Dated: A //O_, 2005 Respectfully submitted, FEDERAL INSURANCE COMPANY By ie of Its Attomeys James S. Stickles, Esq. KAPLAN & VON OHLEN (38989) 120 North LaSalle Street, 24th Floor Chicago, Illinois 60602 (312) 345-3000 104-05-05 11:00am Frow-CHLBB & Sam a IN THE COURT OF COMMON PLEAS CUYAHOGA COUNTY, OHIO JESSICA KERGER 1972 Potomac Drive Toledo, Ohio 43607 CASE NO, and JUDGE RICHARD KERGER, Individually and on behalf of Samantha, Jack, and Benjamin, minors 1972 Potomac Drive Toledo, Ohio 43607 COMPLAINT TORY DEMAND Plaintiffs ENDORSED HEREON aren DENTSPLY INTERNATIONAL, INC. 510 West College Ave. ‘York, Pennsylvania 17405-0872 and JOHNSON & JOBNSON One Johnson & Johnson Plaza ‘New Brunswick, New Jersey 08933 and AMERICAN DENTAL ASSOCIATION 211 E, Chicago Ave. ‘Chicago, Ulinois, 60611 and OHJO DENTAL ASSOCIATION 1370 Dublin Road Columbus, Ohio 43215-1009 Defendants. , ee re HOAOl-O5-05 1 h:00an From CHEB & Sch 781 P.00a/oss F068 ‘The Parties 1. Plaintiffs Jessica Kerger and Richard Kerger reside at 1972 Potomac Drive, Toledo, Ohio 43607. At all relevant times herein Richard and Jessica Kerger were and are lewfvlly manied and have three minor children, Samantha, Jack, and Benjamin. 2. Plaintiff Jessica Kerger had twelve mercury amalgam fillings in her mouth until Jame 2002, when the flings were removed over approximately a two-month period of time, 3, Atal times relevant herein, Dentsply International Inc. (“Dentsply") is end was a corporation doing business throughout this State by manufacturing, distributing, marketing, selling, and/or otherwise placing within the stream of commerce in Ohio, and particularly 10 dentists throughout Ohio, the materials used by dentists to produce mercury amalgam fillings. Atal times relevant herein, Defendant Deatsply transacted business in the State of Ohio, 4 Avall times relevant herein, Johnson & Jolson is and was a comporstion doing business throughout this State and was the predecessor to Defendant Denteply in manufacturing, distributing, macketing, selling, and/or otherwise placing within the siream of commerce in Ohio, and particularly to dentists throughout Ohio, the meleials used by dentists to produce mercury smalgam fillings. At all times relevant herein, Defendant Johnson & Johnson transacted business in the State of Ohio. 5. Atal times relevant herein, the American Dental Association (“ADA”) is and was a nonprofit corporation headquartered in Ilinois, duly authorized to conduct business in the state of Ohio. The ADA is the largest association of dentists in the United States, The ADA’s website claims that seventy percent of U.S, dentists belong to the ADA, All Obio éentists that belong to the Ohio Dental Association ere requited to be members of the ADA. Among other04-05-05 V:O1an FromCHUBE & SCH T+8E1 P.005/033 Feast things, the ADA accredits dental schools within the State of Ohio. At all times relevant herein, the ADA transacted business in the State of Ohio. 6 Avall times relevam herein, the Ohio Dental Association (“ODA”) is and was a nonprofit comporation headquartered in Ohio and duly authorized to conduct business in the State of Ohio. The ODA’s website claims that eighty percent of Ohio dentists belong to the ODA. AIL Obio dentists that belong to the ADA are required to be members of the ODA. At all times relevant herein, the ODA transacted business in the State of Ohio. Jurisdiction and Venue 7. Jtisdiotion and venue are proper in that the events giving rise to this cause of action occurred within the jurisdiction of this Court and each defendant hes sufficient minimum contacts in Ohio, is a citizen of Ohio, or otherwise intentionally avails itself of the Ohio market 80 as to ronder the exercise of jurisdiction over it by the Ohio courts consistent with traditional notions of fair play end substantial justice. 8. All, or nearly all, of Plaintiff's mercury amalgam fillings were placed in het mouth at her dentist's office in Cuyahoga County, within the jurisdiction of this Court tual Allegations 9. Mercury is a potent neurotoxin, It is tie most toxic non-radioactive element on 10. Mercury has devastating effects on the human body, which are well-documented in the sciatific literature. Mercury disrupts the hypothalamus-pituitary-adrenal (“HPA") axis. Chronic exposure to mercury damages the cenwal nervous system and results in the accumulation of meroury in the brain, heart, and kidneys,U-05-18 "1:0tan—From-cHUBe & son TSH P.08/039 F068 11, Governmental and scientific bodies have continuously lowered the levels at which mercury is considered toxic to the tmman body. The FDA has issued advisories on reducing sonsumption of certain kinds of fish containing high levels of mercury. The use of mercury in the healthcare industry bas been increasingly prohibited: mercury thermometers, mercurochrome to treat infections, and mercury preservatives in vaccines and contact lens solutions are all either banned or being phased out, The American Public Health Association condemns any health use of mercury. 12. Although mercury amalgam fillings are referred to as “silver” filings, this terminology (propagated by the Defendants named herein) is merely a euphemism - in reality mercury amalgam fillings are 50% mercury, according to Toxicological Profile for Mercury (Update, 1995), a report of the United States Government's Agency for Toxic Substances and Disease Registry, a part of the Public Health Service, United States Department of Health and ‘Human Services. 13. A typical mercury amalgam filling contains 750,000 micrograms of mercury. 14. Canada, Great Britain, France, Austria, Norway, Sweden, Switzerland, Japan, Australis, and New Zealand have issued bans or mandated health warnings regarding mercury amalgam fillings. 15. The World Health Organization considers mercury amalgam to be the single Jergest source of mercury exposure for the goneral public, with mercury amalgam contributing up to 84% of the total daily intake of all forms of mercury ftom all sources, 16. The Eaviroamental Protection Ageney instructs dentists #o teat mercury amalgam as a toxic material while handling before insertion and classifes mercury amalgam fillings as a hazardous waste when removed from the mouth.04-08-08 ‘1:Dlan — From-CRUBB & SOK T-SBL P.0NT/NI3 F058 17, The California Dental Board sent a newsletter to all of its dentists in June 2000, ‘waming of the reproductive toxicity of the mercury in the amalgam, as well as the adverse Feactions seen in those patients who are hypersensitive to mercury, 18, The Maine State Legislature in 2001 passed a law requiring the Department of ‘Human Services, Bureau of Health to issue a brochure fo provide some of the information about mercury amalgam fillings that Defendants named herein misrepresent, fail to disclose, and actively concesl, 19. Although meroury is being banned or phased out in all other areas of healthcare, the dental industry, including Defendants named herein, stands alone as the only industry which ‘promotes the use of mercury by falsely claiming mercury amalgam fillings arc safe. 20. Meroury amalgam is a mixture of mercury, silver, tin, copper, and trace amounts of zine. As the ingredients of the amalgam all have fall electron shells, they cannot chemically bind to each other and instead form an intermetallic compound that is unstable by definition, ‘The metals in amalgam are cations and the result of the covalent, ionic and metallic bonding, and van der Waals forces between the amalgam cations is a weak repulsion, which causes a release of mercury and other metals from the amalgam into the body, 21. According to a report of the United States Agency for Toxic Substances and Disease Registry, the mercury in an amalgam filling constantly vaporizes stom the amalger, With activities such as chewing, tooth brushing, and consumption of hot liquids increasing the rate of vaporization. 22. ‘The released mercury vapors are inhaled end absorbed into the bloodsweam where the mercury is delivered to brain, kidneys, and other organs and tissues of the body. ‘There is an extreme range of dental mercury uptake from person to person, with the high end approaching04-05-05 V:Dlan— FromCHUBe & SOK TSS P.n0n/oss F053 100 micrograms of mercury per day. The mercury thet is ebsorbed is retained in various organs and accumulates in the brain, nerves, kidneys, liver, and endocrine glands, 23, The half-life for the elimination of a single dose of mercury is at least 30 days for the whole body, snd as long as 10,000 days for the brain. 24, Scientific studies have demonstrated a statistically significant correlation berween mercury concentration in the human bedy and the mumber of mercury amalgam fillings and/or chewing surface area, A greater number of mercury fillings over & larger surface area leads to higher levels of mercury in the body. Blood mercury levels are significantly higher in individuals with mercury amalgams, but eventually rerum to normal when the fillings are replaced with a non-mercury material, However, the autopsies of individuals with mercury amalgam fillings show a hightr concentration of mercury in the brain and kidney tissues than the autopsies of individuals without mercury amalgam fillings. 25. The potential health risks of mercury vapor exposure include, among other things, ncurological problems, neuratoxicity, psychological and neurological disturbances, eyelvision problems, oral cavity disorders, endocrine disorders, cardiovascular problems, respiratory Gifioulies, immune suppression and immunologicel disorders, renal impairment, allergic reactions and rashes, gastrointestinal complications, reproductive consequences, headaches, fatigue, and depression. 26. Because the leakage of mercury and the subsequent effects is usually a slow and subtle process, the health problems caused by dental mercury poisoning are often not apparent until many years after the mercury amalgems are implanted. 27. Mercury toxicity is particularly harmful to individuals who are hypersensitive to mercury, As many 5 35% of people with amalgam fillings test hypersensitive to mercury. Thebe-05-08 Vi:02n —FromCHLBB & $0) THE Poone/nas F088 incidence of this adverse reaction generally increases with time and the onset may be delayed five ormore years, 28. As of June of 2002, Plaintiff Jessica Kerger had twelve meroury emalgam fillings in her mouth, i.e. she had 9,000,000 micrograms of mercury in her mouth, 29, Plsintiff’s mercury amalgam fillings were placed in her mouth by dentist Chester Bizga at his office in Cuyahoga County. All, or neatly all, of the mercury amalgam fillings were placed in Plaintiff's mouth by Dr. Bizga by the time Plaintiff was 23 years old. 30. Dentist Chester Bizga used the product of Dentsply or its predecessor Johnson & Johnson exclusively when placing the mercury amalgam fillings in Plaintiff's mouth, 31. Prior to May 2002 Plaintiff had never been informed that these mercury amalgam fillings presented any risk of toxic injury. Prior to April 15, 2002, Plaintiff had no reason to suspect that these mercury amalgam fillings presented any risk of toxic injury. Had Plaintiff been informed of the risk, she would not have consented to the use of the product. 32, For many years, Plaintiff has been experiencing various neurological deficits and other problems related to the hypothalamus-pituitary-adrenal (“HPA”) axis, 33. In Jume of 2002, Plaintiff's family physician ordered Plaintiff to undergo ihe ‘Meraory Lymphocyte Immuno Stimulation Assay (MELISA) which tests for hypersensitivity to various metals and other substances. The results of the MELISA test showed that Plaintiff was hypersensitive to mercury, the main component of the fillings in her mouth, 34. Further testing revealed that Pliintiff was suffering fom mercury toxicity Plaintiff began and is still undergoing treatment for mercury toxiciDe-005 11:02am FromcHIBB & SOK THE pPovovess Foe 35. As a direct and proximate result of her exposure to the mercury in ber amalgara fillings, Plaintiff suffers a wide range of health problems, including cell damage, tissue damage, organ damage, neurological damage and various neurological deficits. 36. As a further direct and proximate result of her exposure to the mercury in her amalgam fillings Plaintiff hes incurred various medical expenses, lost wages, experienced pain and suffering, and lost some of the enjoyments of life from which she derived pleasure prior to ‘her exposure to mercury. In addition, Plaintiff anticipates experiencing these same losses into ‘the future. Products Liability - Defective W: 37. Defendant Dentsply is 2 legal entity which transacts business in the State of Ohio, contracts to supply goods and services in this state, regularly undertakes and solicits business in this state, engages in other persistent courses of conduct in this state, and derives substantial ‘revenue ftom the goods used or consumed in this state. 38. Defendant Johnson & Johnson is a legal entity which transacts business in the State of Ohio, contracts to supply goods and services in this state, regularly undertakes and solicits business in this state, engages in other persistent courses of conduct in this stale, and derives substantial revenue from the goods used or consumed in this state, 39.. At all time mentioned herein, Defendant Dentsply and/or its predecessor Defendant Johnson & Johnsoa was engeged in the business of designing, manvfacturing, compounding, testing, inspecting, packaging, labeling, advertising, promoting, distibuting, marketing, selling, and otherwise placing into the steam of commerce mercury amalgam fillingsDet8-05 "1:02am From CHUBB & SOY Toe P.oviaas F088 40, Defendant Dentsply and/or its predecessor Defendant Johnson & Joimson manufactured and placed into the stream of commerce the mercury amalgam fillings which were implanted into Plaintiff's mouth. 41. ~ At the time the amalgam fillings left its control, Defendant Dentsply and/or its predecessor Defendant Johnson & Johnson knew of, in the exercise of reasonable cere, should have known of the risks associated with mercury amalgem fillings which caused the harm for which Plaintiff seeks to recover. 42. Defendant Dentsply and/or its predecessor Defendant Johnson & Johnson failed to provide the warning or instruction that a manufacturer exercising reasonable care would have Provided conceming the risks of mercury amalgam fillings in light of the likelihood that the Product would cause harm of the type Plaintiff secks to recover and in light of the likely seriousness of that harm. 43. Defendant Dentsply's andlor its predecessor Defendant Johnson & Johnson's failure to wam of such risks was a proximate cause of the personal injuries suffered by Plaintif® 44. Asa direct and proximate result of Defendant Dentsply’s and/or its predecessor Defendant Johnson & Johnson's failure to wam of the risks, Plaintiff has suffered personal injuries, including, but not lbnited to, cell damage, tissue damage, organ damage, neurological damage, and various neurological deficits, 45. As a further direct and proximate result of Defendant Dentsply’s and/or its predecessor Defendant Johnson & Johnson’s failure to wam of the risks, Plaiutiif has incurred various medical expenses, lost wages, experienced pain and suffering, and lost some of the snjoyments of life from which she derived pleasure prior to her exposure to mercury. In addition, Plaictiff anticipates experiencing these same losses into the fu14-05-08 11:08am FromcHlBe & SOY THEI P.012/008 FOB Count Two: Products ity - Defective Post-Marketing Warnings 46, Plaintiffs allege and reincorporate all well-pled material allegations set forth above as if fully rewritten herein, 47, Defendant Dentsply and/or its predecessor Defendant Johnson && Jobnson manufactured and placed into the stream of commerce the meroury amalgam fillings which were ‘muplanted into Plaintifi’s mouth, 48. After the mercury amalgam fillings left its control, Defendant Dentsply andlor its predecessor Defendant Johnson & Johnson knew or, in the exercise of reasonable care, should have known of the risks associated with mercury amalgam fillings which caused the ham for which Plaintiff seeks to recover. 49. Defendant Dentsply and/or its predecessor Defendant Johnson & Johnson failed to provide the postmarketing warning or instruction that a manufacturer exercising reasonable care would have provided concerning the risks of mercury amalgam fillings in light of the likelihood that the product would cause harm of the type Plaintiff socks to recover and in light of the likely seriousness of that ham, 50. Defendant Denisply's and/or its predecessor Defendant Johnson & Johnson's failure to wam of such risks was a proximate cause of the personal injuries suffered by Plaintiff. 51. Asa direct and proximate result of Defendant Dentsply's and/or its predecessor Defendant Johnson & Jobmson's feihwe to provide a post-marketing waming of the risks, Plaintiff has suffered personal injuries, including, but not lirated to, cell damage, tissue damage, neurological damage, and various neurological deficits, 52. AS a further direct and proximate yesult of Defendant Dentsply's and/or its predecessor Defendant Johnson & Johnson's failure to provide a post-merketing waming of the 104-05-08 Tisttan From cHIBB & SON Tse P.018/038 Fost risks, Plaintiff hes incurred various medical expenses, lost wages, experienced pain and suffering, and lost some of the enjoyments of life ftom which she derived pleasure prior to her exposure to mercury. In addition, Plaintiff anticipates experiencing these same losses into the future, 53. Plaintiffs allege and reincorporate all well-pled material allegations set forth above as if fully rewritten herein. 54, The amalgam fillings were defective in design or formulation in that when they left the control of Dentsply and/ar its predecessor Defendant Jonson & Johnson, the foreseeable risks exceeded the benefits and/or the mercury amalgam fillings were more dangerous than an ordinary consumer would expect when used in an intended or reasonably foreseeable manner. 55. Defendam Densply andlor its predecessor Defendant Johnson & Johnson dsfectively designed the mercury amalgam fillings and their component parts, and placed them ‘nto the stream of commerce where they were implanted into patients, including Plaintiff, in « defective condition and this defective design was a proximate cause of the personal injusies suffered by Plaintiff, 56 As direct and proximate result of Defendant Demsply’s and/or its predecessor Defendant Johnson & Johnson's defective design, Plaintiff has suffered personel injuries, ‘tading, but not limited to, cell damage, tissue damage, organ damage, neurological damage, and various neurological deficits. 57, As a further direct and proximate result of Defendant Dentsply’s and/or its predecessor Defendant Jobnson & Johnson's defective design, Plaintiff has incurred various medical expenses, ost wages, experienced pain and suffering, and lost some of the enjoymnents n04-08-08 H1stGan — FreamCHBS & Sow TES Pongoss Eenss of life from which she derived pleasure prior to her exposure to mercury. In addition, Plaintif anticipates experiencing these same losses into the future Count Four: Products Liability — Negligent Design 58, Plaintiffs allege and reincorporate all wellpled material allegerions set forth above as if fully rewritten herein 59. Defendant Dentsply and/or its predecessor Defendant Johnson & Johnson owed @ duty to use reasonable care under the circurastances to design a product safe for intended use, 60. Defendant Dentsply andlor its predecessor Defendant Johnson @ Iohnson breached its duty to design a product to mectits reasonably foreseeable uses in that the mercury aroalgam fillings are not safe for its intended use of implanting in the mouth for dental health care. 61. Defendant Dentsply and/or its predecessor Defendant Johnson & Johnson breached its duty of product design with regard to mereury amalgam Slings and plaved them into the steam of commerce where they were implanted into Plaintiff's mouth, 62, Defendant Dentsply's andlor its predecessor Defendant Johnson & Johnson's ‘breach of duty was a proximate cause of the personal injuries suiTered by Plaimtft 63. As a direct and proxiruste result of Defendant Dentsply’s and/or its predecessor” Defendant Jobson & Johnson's negligent design, Plaintiff has suffered personal injuries, including, but not limited to, cell damage, tissus damage, organ damage, neurological damage, end various neurological deficits. $4. As a further direct and proximate result of Defendant Denssply's and/or its predecessor Defendant Johnson & Johason's negligest design, Plaintiff has incurred various medical expenses, lost wages, experienced pain and suffering, and lost some of the enjoyments 204-05-05 H:btan Se of life ftom which she derived pleasure prior to her exposure to meroury, In addition, Plaint anticipates experiencing these same losses into the future. Count Five: Produets Liability — Defective Manufucturing/Construction 85, Plaintiffs allege and reincorporate all well-pled material allegetions set forth above as if fully rewritten herein, $5. The amalgam fillings manufactured by Defendant Deatsply and/or its predecessor Defendant Johnson & Johnson were defective in manufacture and/or construction in that when the product left the control of Defendant Dentsply and/or its predecessor Defendant Johnson & Johnson it deviated in a material way from the design specifications, formula, or performance standard of Defecdant Dentsply and/or its predecessor Defendant Johnson & Jokoson. 67, Defendant Dentsply and/or its predecessor Defendant Johnson & Johnson placed into the stream of commerce mercury amalgam fillings which were defective in manufacture or construction, and which were implanted into Plaintiff's mouth, G8. The defective manufacture or construction of the mercury amalgam fillings by Defendant Dentsply and/or its predecessor Defendant Johnson & Johnson was & proximate cause of the personal injuries suffered by Plaintiff. 69, Asa direct and proximate result of Defendant Denteply’s and/or its predecessor Defendant Johnson & Johnson's defective manufacture oz construction, Plaintiff has suffered Permonsl injures, incinding, but not Tote vo, cell damage, tissue damage, orgea damage, neurological damage, and various newrological deficits, 70, AS a further direct and proximate result of Defendent Dentsply's and/or its predecessor Defendant Jobnson & Johnson's defective manufacture or construction, Plaintiff has incurred vacious medical expenses, lost wages, experienced pain and suffering, and lost some ofCU=OE-08 1 1:0dan From-CHUBB & SON THSB1 Poig/092 Faas the enjoyments of life from which she derived pleasure prior to her exposure to mercury. In addition, Plaintiff anticipates experiencing these same losses into the future, Breach of E: Count Si: 71. — Plaintifis allege and reincorporate all well-pled material allegations set forth above as if fully rewritten herein, 72. Defendant Dentsply and/or its predecessor Defendant Johnson & Johnson breached an express warranty to Plaintiff, a user and consumer of Defendant Dentsply's and/or its predecessor Defendant Johnson & Johnson's mercury amalgam fillings. 73. Defendant Dentsply and/or its predecessor Defendant Johnson & Johnson utilized advertising media, professional publications, including but not limited to the American Dental Association’s journals, and dental care professionals to urge the use and purchase of mercury amalgam fillings. Defendants expressly warranted to the public, including Plaintiff, that the mercury amalgam fillings were effective, proper, and safe for its intended use. 74, Plaintiff relied on Defendants’ express warranty in’consenting to the implanting of mercury amelgem fillings in her mouth, 75. At the time the mercury amalgam Billings which were implanted into Plaintiff left the control of Defendant Dentsply anor its predecessor Defendant Johnson & Johnson, the product was defective in that it did not conform to the representations made by Defendant Denstsply and/or its predecessor Defendant Johnson & Johnson in that the product was not safe, effective, and proper for its intended and foreseeable use. 76, The personal injuries to Plaintiff were a direct and proximate result of the breach of these express warranties by the Defendants, 144-05-05 11:08an —From-CHLBE & 6M TSS1P.o1T/09 Fetes 77. As adirect and proximets result of Defendant Dentsply’s and/or its predecessor Defendant Johnson é& Johnson's broach of express warranties, Plaintiff has suffered personal injuries, including, but not limited to, cell damage, tissue damage, organ damage, neurological damage, and various neurological deficits. 78. As a further direct and proximate result of Defendant Demtsply’s andor its predecessor Defendant Johnson & Johnson’s breach of express warranties, Plaintiff has incurred various medical expenses, lost wages, experienced pain and suffering, and lost some of the enjoyments of life from which she derived pleasure prior to her exposure to mercury. In addition, Plaintiff anticipates experiencing these same losses into the future. Count Seven: Breach of Implied Warranty 79. Plaintiffs allege and reincorporate all well-pled material allogations set forth above as if fully rewritten herein. 80. Defendant Dentsply and/or its predecessor Defendant Johason & Johnson breached an implied warranty to users and consumers such as Plaintiff, 81. Defendant Dentsply and/or its predecessor Defendant Johnson & Johnson impliedly warranted to members of the general public, Plsintiffs, that mercury amalgam fillings were of merchantable quality and safe for the vse for which they were intended, ¢., implanting in the mouth for use in dental healthcare. Defendants expressly and implicitly ‘warranted that mercury amalgams would be a safe and offective remedy for the cavities within Plaintif? s mouth. 82, Plaintiff relied on the skill and judgment of Defendants in selecting, purchasing, and using the mercury amalgam fillings.1-08-08 1T:0éanFremcHUBB & 50H THHS1 P.ovavoea F083 83. Plaintiff's use of the product was a reasonably foreseeable manner of use, Plaintiff relied upon her dentist's oral health care recommendation to place the mercury amalgam Allings in her mouth, 84, At the time the mercury amalgem fillings which were implanted into Plaintiff left the control of Defendant Dentsply and/or its predecessor Defendant Johnson & Johnson, the product was defective in that it did not confoum to the representations made by Defendant Dentsply and/or its predecessor Defendant Johnson & Johnson in that the produet was not safe for intended and reasonable foreseeable uses, and not of merchantable quality as warranted by Defendant Dentsply and/or its predecessor Defendant Johnson & Johnson. 85. The personal injuries to Plaintiff were a direct and proximate result of Defendant Dentsply’s and/or its predecessor Defendant Johnson & Johnson's breach of these implied warranties, 86. Asa direct and proximate result of Defendant Dentsply's and/or its predecessor Defendant Johnson & Jahnson’s breach of implicd warranties, Plaintiff has suffered personal injuries, inclading, but not limited to, cell damage, tissue damage, organ damage, neurological , andl various neurological deficits, 87. As a further direct and proximate result of Defendant Dentsply’s andlor its predecessor Defendant Johnson & Johnson’s breach of implied warranties, Plaintiff has incurred various medical expenses, lost wages, experienced pain and suffering, and lost some of the cnjoyments of life from which she derived pleasure prior to her exposure to mercury, In addition, Plaintiff anticipates experiencing these same losses into the future,0d-95-05 11:05am FromCHIBB & SOW TSE P.oi/oaa | F-88 Count Bight: Fraud 88. Plaintiffs allege and reincorporate all well-pled material allegations set forth above as if fully rewritten herein, 89. Defendant ADA and Defendant ODA Inew and/or acted with utter discegard of the risks that mercury posed dental patients, including Plaintiff, when used as a substance for oral healthcare. 90. In addition to omitting material facts regarding mercury amaleem filings, Defendant ADA and Defendant ODA took affirmative steps to conceal the presence and amount of marcury in the amalgain Slings and to misrepresent the material facts regording the mercury amalgam fillings, 91. Among their material misrepresentations, Defendant ADA and Defendant ODA misrepresented that mercury amalgam fillings were “silver” by referring to them as “silver® fillings in their oral representations and in various brochures, pamphlets, advertisements, and other written correspondence and inforruational matctisls, (See exhibit 1, attached). Defendants utilized this misleading tecminology since “silver fillings” would necessarily imply that the fillings are made primarily of “silver” Amalgem fillings typically are about 50% mercury, a fact that Defendant ADA and Defendant ODA failed to disclose and actively céncecled. 92. Among their material misrepresentations, Defendant ADA. and Defendant ODA ralsrepresented the risk, dangors, and effects of mercury leaking from the amalgam fillings in their oral representations and in various brochures, pamphlets, advertisemeats, and other written comespondence and informational materials. Defendant ADA and Defendent ODA falsely represented that mercury amalgam Billings are chemically bound and biologically inactive. The 7From-cHB & SON THI P020/088 F088 Defendants consistently failed to disclose the fact that amalgam is a mixture in which the ingredients cannot form a chemical bond because they all have fall electron shells, The Defendants continuously failed to disclose that the intermetallic compound that is formed is unstable and mercary in the amalgam is continuously released into the body. 93. Defendant ADA derived a significant income fiom advocating for amalgem Slings and fom the sale of its various written materials which contained material misrepresentations about the risks, dangers, and effect of merewry amalgam fillings, 94. The misrepresentations of Defendant ADA and Defendant ODA were mede falsely and with the intent to mislead dental patients, including Plaintiff regarding the true risks ‘of mercury amalgem fillings. 95. In addition to making false representations regarding the safety of mercury amalgam fillings, Defendant ADA and Defendant ODA also actively prevented dentists from Communicating the dangers of merciary wo their patients through their institution of a gag rule disguised as an “ethical” code. (See exhibit 2, atached) Defendant ADA amended its code of this, meking the removal of mercury filings unethical conduct if the reason for the removal is ‘© climinste a toxic material from the human body and the recommendation is made by the dentist. This gag rule, classified as an “ethical” rule or code, was passed while the ADA's patent fon emalgam was still in effect (patent rumbers 4,018,600 and 4,078,921), which was not revealed to the public, The gag rule prohibits dentists ftom warning patients of the presence of ‘mercury in the amelgem filings and the inherent risk and dangers associated with its presence. Abhough the ADA is eware that a percentage of the poptlaton is hypersensitive to meroury, the gag rule prevents dentists fem waming even those patiens ofthe risks and dangers. The sag rule also prevents dentists fom suggesting the removal of mereury amalgam fillings, even forFrom-CHLBB & Sh Ts P.021/008 those suffering from mercury toxicity. Pursuant to the gag rule, it is “ethical” for a dentist to. place mercury in the mouth of a patient and recommend its safety, but it is unethical for a dentist to even inform the patient of the risks of mercury. The gag rule is part of the ADA's professional code of conduct and is so strictly enforced by both the ADA and the ODA that entists risk suspension of their license by passing on any warnings about mercury amalgem fillings to their patients, In obstructing dentists’ ability to pase on vital wamings to patients, Defendant ADA and Defendant ODA have actively concealed material information about tercury fillings from dente] patients, violating the fundamental principles of informed consent, 96. In addition to the gag rule, which prevents dental patients fiom receiving warnings from their dentist, Defendant ADA and Defendant ODA also prevent dental patients, including Plaintidi, ftom receiving any warnings fiom the menufacturer, in this case Defendant Dentsply and/or its predecessor Defendant Johnson & Johnson. 97. Atone time, Defendant Dentsply admitted that its product was unsafe, Defendant Dentsply stated: Containdication: The use of amalgam is contraindicated: Jn proximal or ocelusal contact to dissimilar metal restorations. In pationts with severe renal deficiency. 4n patients with Imown allergies to mercury. For retrograde or endodontic filling. Asa filling material for cast crown, Wn cbildren 6 and under. In expectant mothers. 98. Other manuacrurers of amalgam have briefly isoued similar warnings in the past 19‘1:0tam —Frow-chBS 4 SoH TSB Pooee/ose 088 99. Defendant ADA pressured manufacturers, including Defendant Dentsply and/or its predecessor Defendant Johnson & Johnson, fo remove warnings from their labels, and the limited warnings were quickly removed from the labeling and not provided to dental patients, including Plaintiff, as a direct and proximate result ofthe actions of Defendant ADA. 100. As a direct and proximate result of Defendant ADA’s and Defendant ODA's concealment of the risks and dangers of amalgam, and as a direct and proximate result of Defendants" acts in obstructing individual dentists from relaying the risks to their patients, and Defendants’ acts in preventing dental patients fiom receiving manufacturer's wamings, Plaintiff did not seceive any wamings conceming the risks and dangers of mercury amalgam fillings, even though it was particularly vital for Plaintiff to receive them. 101. In addition to concealing the true risks and dangers of mercury amalgam fillings, Defendant ADA and Defendant ODA have intentionally mislead the public, including Plaintiff, by promoting mercury amalgam fillings without revealing their Sinancial interests in amalgam. 102, Defendant ADA and Defendant ODA have misled the public, including Plaintiff, through the ADA’s Seal of Acceptance program, in which the ADA uses its name to endorse certain commercial products. Through Seal of Acceptance Program, Defendant ADA contracts ‘with the manufacturers of various commercial products and receives, or did receive in the recent past, revenues from those manufacturers, 103. Several manufacturers of mercury arcalgam products, including Defendant Dentsply and/or its predecessor Defendant Johnson & Johnsen, pay, or did pay in the recemt past, Tevemues to the ADA in exchange for receiving the ADA Seal of Acceptance. Thus, Defendant ADA derives, or did derive in the fecent past, a direct financial benefit érom its promotion of amalgam which wes not disclosed to the publi.De-05-05 11:tn — From-CHlBS & sot Tee P.o7a/038 F088 104, Defendant ADA explains that the Seal of Acceptance on a product means “consumers can be confident that the product mests ADA requirements for safety and effectiveness and that the manufacturet’s claims about that product are accurate.” Defendant ADA claims the Seal on a product “is an assurance for consumers and dentists against misleading or untrue statements conceraing a product, its use, safety and effectiveness.” 105, The AD; 's own website proclaims that the ADA. Seal is recognized by more than 70 percent of Americans as “a standatd for oral health care products.” The ADA's website states that the Seal “symbolizes dentistry's commitment to protect the profession and the public” and that itis “an important symbol of « dental product’s safety and effectiveness.” 106. Because the Defendants actively marketed mercury amalgam fillings with the Seal of Acceptance program and thus promoted the saféry and effectiveness of mercury amalgam, the Defendant ADA and Defendant ODA owed a duty to dental patients, including Plaintiff Jessica Kerger, to be forthcoming about the dangers of mercury amelgam fillings, to refrain ffom making any misleading statements regarding the sefety of amalgam as an oral healthcare remedy, to refrain ftom interfering with the dentist-patient relationship and a patient's abi y to make an informed decision, and lo reveal their financial interest in the promotion of amalgam, 107. Defendant ADA and Defendant ODA knowingly and intentionally misrepresented and concealed the true components of mercury amalgam fillings, the material facts regarding the risks, dangers, and effects of amalgam fillings, and their financial interests in amalgam. 108, Plaintiff Jessica Kerger reasonably relied upon Defendants’ false assurances that amalgam Gillings were “silver", that mercury amalgem was a sefe and effective oral healthcare remedy, and that there Were no risks or dangers that she needed 10 be informed about before 204-08-05 11:05am From CHUBB & SOK a) agreeing to have mercury amalgam fillings placed in her mouth and keeping them in her mouth 1m reliance upon Defendants’ assurances and endorsements, Plaintiff agreed to have the mercury amalgams placed in her mouth and did not have them removed until substantial damage had been caused. Absent Defendants’ misrepresentations and Defendant’s actions which prevented wamings from reaching the Plaintiff, Plaintiff would not have agreed to have any amalgam filings placed in her mouth. 109. Asa proximate result of the fraudulent statements and actions of Defendant ADA and Defendant ODA, and Plaintiff Jessica Kerger’s reasonable reliance thereon, Plaintiff has suffered personal injuries, including, but not limited to, cell damage, tissue damage, organ damage, neurological damage, and various neurological deficits. 110. As a further direct and proximate result of the fraudulent conduct of the Defendant ADA and Defendant ODA, Plaintiff has incurred various medical expenses, tost wages, experienced pain and suffering, and lost some of the enjoyments of life from which she derived pleasure prior to her exposure fo mercury. in addition, Plainsff anticipates experieccing these same losses into the future, Ui, The fraudulent acts and omissions of Defendant ADA and Defendant ODA toward Plaintif were conducted with malice and knowledge of the harm that would be caused, and were gross, egregious, andlor aggravated by the existence of malice and ill will, and/or constituted a comupt condition of affairs for which Plaintiff secks the additional award of punitive damages.04-08-08 H1:tan— From-CHBB & $0N TEL 7.28/08 Pooks Count Nine: Violation of the Ohio Deceptive Trade Practices Act 112, Plaintifis allege and reincorporate all well-pled material allegations set forth above as if fully rewritten herein. i 113. All Defendants have made untrue, deceptive, and misleading statements and ‘omitted material facts in promoting merewry amalgam, 114. Defendant ADA and Defendant ODA have represented that mercury amalgam hes characteristics, ingredients, and benefits that it does not have, Defendant ADA and Defendant ODA have falsely represented that amalgam is silver, when in fact it is approximately $0% mercury, Defendant ADA and Defendant ODA have falsely represented that amalgam is chemically bound and biologically inactive, when in fact amalgam is an unstable mixture thet continuovsly leaks mereury vapors when placed in the mouth of an unsuspecting dental ptient. 115. Defendant ADA’s and Defendant ODA’s Tuistepresentations regarding the characteristics, ingredients, and benefits of mercury amalgam constitute a violation of the Ohio Deceptive Trade Practices Act, R.C. 4165, 116. In addition to misrepresentations regarding the characteristics, ingredients, and Denefits of mercury amalgam, all Defendants have undertaken the deceptive practice of promoting mercury amalgam as safe and without health risks. Among other deceptive aots, al Defendants have promoted mercury amalgam through the ADA‘s Seal of Acceptance prograin. 117. Under the ADA’s Seal of Acceptance program, the ADA uses its name to endorse certain commercial products. The ADA contracts with the manufacturers of various commercial Products and has received revenues from those manufacturers through its Seal of Acceptance program.04-05-08 H1:tTan — From-CHBB & SoW Tes 7.026/093 F058 118. Several manufacturers of mercury amalgam products, including Defendant Dentsply and/or its predecessor Defendant Johnson & Johnson, heve paid revenues to the ADA. in exchange for receiving the ADA Seal of Acceptance. Thus, the ADA hes derived a direct nancial benefit from its promotion of amalgam. 119. According to the ADA, the Seal of Acceptance on a product means “consumers ‘can be confident that the product meets ADA requirements for sefety and effectiveness and thet the manufacturer’s claims about that product are accurate.” The ADA claims the Sel on a product “is an assurance for consumers and dentists against misleading or untrue statements conceming a product, its use, safety and effectiveness.” The ADA’s own website proclaims that the ADA Seal is recognized by more than 70 percent of Americans as “a stendard for oral health care products.” The ADA’s website states that the Seal “symbolizes dentistry’s commitment to protect the profession and the public” and that it is “an important symbol of a dental product's safety and effectiveness.” 120. In promoting mercury amalgam through the Seal of Acceptance program, Defendant ADA, Defendant ODA, Defendant Demtsply and/or its predecessor Defendant Johnson & Yohnson misrepresented to the public the characteristi gredients, and benefits of mercury amalgara fillings in violation of the Ohio Deceptive Trade Practices Act, RC. 4165, 121. Plaintiff relied upon Defendants’ deceptive trade practices and misrepresentations about mercury amalgam which violated the Ohio Deceptive Trade Practices Act and consented ohave mercury amalgam fillings placed in her mouth. Absent Defendants’ misrepresentations and deceptive trade practices, Plaintiff would not have agreed to have any mercury amnalgam: lings placed in ber mouth.4-08-08 T10Tan Froe-CHIBB 4 S0H TSB P.oet/ana F088 122. As a further direct and proximate result of Defendants’ violations of the Ohio Deceptive Trade Practices Act, Plaintiff has suffered personal injuries, including, but not limited to, coll damage, tissue damage, organ damage, neurological damage, and yarious neurological deficits. 123. As a further direct and proximate result of Defendants’ violations of the Ohio Deceptive Trade Practices Act, Plaintiff has incurred various madical expenses, lost wages, experienced pain and suffering, and lost some of the enjoyments of life from which she derived pleasure prior to her exposure to mercury. In addition, Plaintiff anticipates experiencing these same losses into the future. 124. Defendants’ violations of the Onio Deceptive Trade Practices Act, described herein, were committed willfully such that Plaintiffs are exititled to attorneys’ fees pursuant to RC. 4165. Count Ten: Lack of Informed Conse 125. Plaintiffs allege and reincorporate all well-pled material allegations set forth above as if fully rewritten herein. 126. Defendant ADA, Defendant ODA, and Defendant Dentsply and/or its predecessor Defendant Johnson & Johnson have concealed material facts and provided fillse information regarding the risks of harm and toxic injury ftom mereury amalgam fillings. 127. Defendants, particularly Defendant ADA and Defendant ODA, hold themselves out as the preeminent authorities on oral healtheare, 128. Defendant ADA, Defendant ODA, and Defendant Dentsply and/or its predecessor Defendant Johnson & Johnson actively merkered mercury amalgam fillings with the Seal of Acceptance program. In marketing and promoting amalgam in this way, Defendants assuredDd-05-08 {1:67am From-CHUBS 4 SOW TH5517.028/098 F083 dental paticats, including Plaintiff, that the mercury amalgam Slings placed in Pleintiff’s mouth were safe and effective, 128, Because Defendents took it upon themselves to actively promote the safety and effectiveness of mercury amalgam fillings, to contol and restriet the information relayed to the patient by the dentist, and to control the information relayed to the patient by the mannfacturer, the Defendants owed a duty to dental patients, including Plaimiff Jessica Kerger, to be forthcoming abou the risks and dangers of the mercury fillings and refrain ftom making misleading statements about mercury fillings so Plaintiff could make an infomned decision before she consented to having mercury placed in her mouth. Defendant ADA particularly owed this duty to Plaintiff because it held itself out as the foremost authority on orel healthcare end actively promoted the safety and effectiveness of morcury amalgam while concealing its financial interest in arualgam from Plaintif® 130. Ase diroct and proximate result of Defendants’ misleading statements and active concealment of the risks and dangers of mercury amalgam fillings, Plaintif consented to having twelve mercury amalgam fillings placed in her mouth, If Defendants had been forthcoming about the risks involved, Plaintiff never would have consented to having any mercury emalgani fillings placed in her mouth, Had Plaimtiff had been informed about the risks subsequent to the mercury amalgam Sillings being placed in her mouth, Plaintiff would bave bad them removed immediately. 131, Asa direct and proximate result of Defendants’ misleading statements and active Concealment of the risks and Gangers of mercury amalgam fillings, which constituted a breach of Defendants* duty to Pl iff, Plaintiff has suffered personal injuries, including, but not limitedbee 05=05 V:btem — FromcHBS & Som THHS1 P.028/038 F083 40, cell damage, tissue damege, orgen damage, neurological damage, and various neurological deficits. 132, As a further direct and proximate result of Defendants’ breach of duty, Plaintiff hhas incurred various medical expenses, lost wages, experienced pain and suffering, and lost some of the eajoyments of life from which she derived pleasure prior to her exposure to mercury, In addition, Plaintiff anticipates experiencing these same losses into the future. Count Loss of Consortium 133. Plaintiffs allege and reincorporate all well-pled material allegations set forth above as if fully rewritten herein. 134, As a direct and proximate result of Defendants’ conduct as set forth above, Richard Kerger, has suffered, and will continue to suffer, the loss of services, society and companionship of his wife he would otherwise have been able to enjoy. 135. As a direct and proximate result of Defendants’ conduct 23 set forth above, Samantha Kerger, Jack Kerger, and Benjamin Kerger have suffered, and will contisue to suffer, the loss of services, society and companionship of their mother which they would otherwise have been able to enjoy. WHEREFORE, Plaintiff Jessica Kerger prays for judgment against each Defendant individually and all Defendants jointly and severally in an amount exscoding Twenty-Five Thousand Dollars ($25,000.00) in compensatory damages and for punitive damages in an amount to be determined at tial for the wongful acts complained of herein. Plaintiff Richard Kerger firther prays for judgment against each Defendant individually and all Defendants jointly and severally en Count Eleven for loss of consortium in an amount exceeding Twenty-Five04-05-05 Dan From-CHBB & SOK Te8S1 P.030/038 Foose Thousand Dollars ($25,000.00). Plaintiff Richard Kerger further prays for judement for Samantha Kerger, Jack Kerger, and Benjamin Kecger, the minor children of Plaiatffs Jessica and Richard Kerger, against each Defendant individually and all Defendants jointly and severally on Count Eleven for loss of consortium in an amount exceeding Twenty-Five Thousand Dollare (525,000.00), Plaintifis also request atomey fees, including those authorized by R.C. 4165, expert fees, the costs incurred in the prosecution and litigation herein, prejudgment and post- Judgment interest and any other relief which the Court deems just and equitable under the circumstances, ) Mary M. Moriarty (0073022) cwa@murravandmurray. MURRAY & MURRAY CO, LP.A. 111 E, Shoreline Drive P.O. Box 19 Sandusky, Ohio 44871-0019 Telephone: (419) 624-3000 Fax: (419) 624-0707 Attomeys for Plaintifis JURY DEMAND Plainttt hereby requests il by jury in this action, Sib lef Ghavies M. Mumay (9052084) MURRAY & MURKAY CO, LP.A. Attorieys for Plaintifis PRECIPE TO THE CLERK Please serve the complaint upon defendants by certified mail, return receist requested, at the address listed on the face of this eae a copy of same, CL bah Charles M, Murray (6052 33) MURRAY & MURRAY CO, LP.A. Attorneys for PlaintiffsF088 P.cn1/038 T881 Frow-cHBS & Sot 1:0foe 04-06-98aa P.oae/aae F068 1-81 Fror-CHBS & son Uttam 04-08-08 Jo Ueranpann ey usu suumaNs y Suawarcnen 6 pomcE ‘aie szesbiap 2509) emfjeus jo Bsn Lugar Lod soph mene 2y ged 0 pe, eso ND owes PON Ue ed LOOM as foun anay cya cad ro ures veut ‘emp Gn “xtuess Jo) suoqendy6 udned owas wy sqaioeDy ‘uetueaasn eu Guna gases any sugun sey y Kos ‘ag Ku 0 semis pejun 6a pauveg va au sey wed UE 1 (S10 801 oid 0p {p09 98019F ert eUOEY ex YonNDDe U) “suoxnpu09 yeas paysear sy gation ewatuuogy 2 pe wares yen syueniaguoneruntig eay sung om ep eon 5 rigg “snes Eumszn jo ean 0 sen 188 ananpejuokod jou wa sGnyy webu BEEP us yg pe cus fea poreasuOwsp ov sesnED ‘mn an pernaunnsehow sun yams arene | peg ty nga yo Aaes ate wo ep pangasy ayratolgpue 709 aawomg 4} sag ape ‘ny tg pe pon "geoy sayy eum ta a1 — 201g tea 59 etn UMN saps son 4903 9 Yoana ee. ey ea Ubon pre pone ELD adae pny eos poe sy Surg ube Anais 0 asada 32034 999 39 Jog pao, 00 0 |: tak 9 ase “ingest ogc @ esa fog 5) 4 tot Anciour rao a Way Aare wogngyaca gee -Tesamwap e134 6829 yo suoy “sepes ype Soeus yo aaa oy unag sry webhewe avag 9 weBjewe jeyuap sepisu0o 8e}qua6e-10 sdnioa 190 og “reson ums 20 saseasp nents pu oy eBipodtioe avenue aya ‘pesn aq nays 1 oneuane up pasion Aye ue y ssysy)59H -wajEwe tos ve we HK OF PE ATES 8 unNDEL OF og sy ave ess ayn ote Yanan sae popodas es ‘6 ex aeusyand vaey exe so800 pata ps pate, paNeyENS teaibaw apnea © SBuyy saans wegU4-05-05—TsTTam—From-CHBB & SH 1 7038/0882 F083 Code of Professional Conduct S.A. Representation of Care. Dentists shal not represert the cars being rendered to their patients in a false or misleading mannor. Advisory Opinions 5.4.1. Dental Amalgam and Other Restorative Materiale. Bazed on curent scientiic data the ADA has determined thal the removal of amalgam restoretiane from the non-slergic pation for the alleged purpose of removing toric substances fram the body, whan such realmente performed solely at the recommendation afte dentist. is improper and unethical The same Brinciple of veracty applies tothe dentists recommendation concering the removal of sry dental restorative mate. 5.A.2. Unsubstantiated Representations. A dentist who represents that dontal treetment or agnostic techniques recommenced or performed by the dentist has the capaci to dagnoee, ure oF alleviats diseases, infections ar other conditions, when such ropresentations are nex based upon accepied selantitc knowiedge or esearch, is acing unethrealy; http://www ada org/profiprac/law/ende/n-iJRN-27-2005 1pr25 ADA LEGAL sized P0539 IN THE COURT OF COMMON PLEAS CUYAHOGA COUNTY, OHIO JESSICA KERGER 1972 Potomac Drive Toledo, Ohio 43607 CASE NO. CY-04-527504 and JUDGE NANCY FUBRST RICHARD KERGER, Individually and on behalf. of Samantha, Jack, and Benjamin, minors 1972 Potomac Drive Toledo, Ohio 43607 PLAINTIFES’ YIRST AMENDED COMPLAINT Plaintifis JURY DEMAND. ENDORSED HEREON os DENTSPLY INTERNATIONAL, INC. 570 West College Ave. ‘York, Pennsylvania 17405-0872 and JOHNSON & JOHNSON One Johnson & Johnson Plaza Now Brunswick, New Jersey 08933 and AMERICAN DENTAL ASSOCIATION 211 E, Chicago Ave. Chicago, Hinois, 60611 and OHIO DENTAL ASSOCIATION 1370 Dublin Road Columbus, Ohio 43215-1009 EXHIBIT Defendants. 4 QJRN-OP-20eS 19825 ADE LEGAL, Sizean2s62P.07/39 ‘he Parties 1," Plaintiffs Jessica Kerger and Richard Kerger reside at 1972 Potomac Drive, Toledo, Ohio 43607. At all relevant times herein Richard and Jessica Kerger were and are lawfully married and have three minor children, Samantha, Jack, and Benjamin. 2. Plaintiff Jessica Kerger had twelve mercury amalgam fillings in her mouth until June 2602, when the fillings were remsved over approximately a two-month period of time, 3." Atall times selevant herein, Dentsply International Ine. (‘Dentsply”) is and was a corporation doing business throughout this State by manufacturing, distributing, marketing, selling, ancVor otherwise placing within the stream of commerce in Ohio, and particularly 0 dentists throughout Ohio, the materials used by dentists to produce meremry amalgam fillings. Atall times relevant herein, Defendant Dentsply transacted business in the State of Ohio. 4. Atall times relevant herein, Johnson & Johnson is and was a corporation doing business throughout this State and was the predecessor to Defendant Dentsply in manufacturing, ‘stributing, marketing, selling, and/or otherwise placing within the stream of commerce in Ohio, and particularly to dentists ‘throughout Ohio, the materials used by dentists to produce mer oury: amalgam fillings. At all times relevant herein, Defendant Johnson & Johnson transacted business in the State of Ohio. At all times relevant herein, the American Dental Association (“ADA”) is and Was & nonprofit corporation headquartered in Lllinois, duly authorized to conduct business in the state of Ohio, The ADA is the largest association of dentists in the United States. The ADA’s website claims that seventy percent of U.S, dentists belong to the ADA. All Ohio dentists thet Belong to the Ohio Dente) Association are required to be members of the ADA. Among otherJen-ar-2e2s 19:25 apa LepAL Bizaaezsez P2839 things, the ADA accredits dental schools within the State of Ohio. At all times relevant herein, the ADA transacted business in the State of Ohio. 6, At all times relevant herein, the Ohio Dental Association (“ODA”) is and was a nonprofit corporation headquartered in Ohio and duly authorized to conduct business in the State of Ohio. The ODA’s website claims that eighty percent of Ohio dentists belong to the ODA. All Ohio dentists that belong to the ADA are required to be members of the ODA. At all times relevant herein, the ODA transacted business in the State of Ohio, Jurisdiction and Venue 7. Jurisdiction and venue are proper in that the events giving rise to this cause of action occurred within the jurisdiction of this Cowst and each defendant has sufficient minimum contacts in Ohio, is a citizen of Obia, or otherwise intentionally avails itself of the Ohio market $0 a8 to render the exercise of juriidiction over it by the Ohio courts consistent with traditional notions of fair play and substantial justice, 8 All, or néarly all, of Plaintif's mercury amalgam fillings were placed in her mouth at her dentist’s office in Cuyahoga County, within the jurisdiction of this Court. Factual Allegations 9. Mexeury is a potent neurotoxin. It is the most toxic non-radioactive clement on earth. 10. Mercury has devastating effects on the human body, which are well-documented in the scientific Literature. Mercury disnupts the hypothalamus-pituitary-adrenal (“HPA”) axis, Chronic exposure’ to mercury damages the central nervous system and resulis in the accumulation of mercury in the brain, heart, and kidneys.JAN-@7-2005 10:25. ADA LEGA, sizaaes62 P.na/39 ll. Governmental and scientific bodies have continuously lowered the levels at which mercury is considered toxic to the human body. The FDA has issued advisories on reducing consumption of certain kinds of fish containing high levels of mercury. The use of mercury in the healthcare industry has been increasingly prohibited: . mercury thermometers, mereurochrome to treat infections, and mercury preservatives in vaccines and contact lens solutions are all either banned or being phased out, The American Public Health Association condemns any health use of mercury. 12, Although mercury amalgam fillings are refered to as “silver” filings, this terminology (propagated by the Defendants named herein) is merely a euphemism - in reality mercury amalgam fillings are $0% mercury, according to Toxicological Profile for Mercury (Update, 1999), a report of the United States Government's Agency for Toxic Substances and Disease Registry, a part of the Public Health Service, United States Department of Health and Human Services. : 13. A typical mercury amalgam filling contains 750,000 micrograms of mercury. 14, Canada, Great Britain, France, Austria, Norway, Sweden, Switzerland, Japan, Australia, and New Zealand have issued bans or mandated health ‘wamings regarding mercury amalgam fillings. 1S. Tho World Health Organization considers mercury amalgem to be the single largest source of mercury exposure foc the general public, with mercury amalgam eootsibuting up to 84% of the total daily intake of all forms of mercury from all sources. 16. ‘The Ravironmental Protection Agency instructs dentists to treat mereury amalgam 36 & toxic material while handling before insertion and olassifies mercury amalgam fillings as a hazardous waste when removed from the mouth.JAN-G7-2205 10:26 AIG LEGAL Bizddaes6e P1039 17. The California Dental Board cent a newsletter to all of its dentists in Fume 2000, warming of the reproductive toxicity of the mercury in the amalgam, as well as the adverse reactions seen in those patients who are hypersensitive to mercury . 18. The Maine State Legislature in 2001 passed « law requiring the Department of _ Human Services, Bureau of Health to issue a brochure to provide some of the information about mercury amalgam filings that Defendants named herein misrepresent, fail to disclose, and actively conceal. 19, Although mercury is being banned or phased out in all other areas of healthcare, the dentel industry including Defendants named herein, stands clone as the-only industry which promotes the use of mercury by falsely claiming mercury amalgam fillings are safe. 20. Mereury armalgam is a mixture of mercury, silver, tin, copper, and trace amounts of zine. As the ingredients of the amalgarn all have fall electron shells, they cannot chemically bind to each other and instead form an intermetallic compound that is unstable by definition. ‘The metals in amalgam aré cations and the result ofthe covalent, ionie and metallic bonding, aid van der Waals forces between the amalgar cations is a weak repulsion, which causes a release of mercury and other metals from the amalgam into the body. 21 According to a report of the United States Agency for Toxic Substances and Disease Registry, the meroury in en amalgam Slling constantly vaporizes from the amalgam, with activities such as chewing, tooth brushing, and consumption of hot liquids increasing the rate of vaporization. 22. The released mercury vapors arc inlieled and absorbed into the bloodstream where the mereury is delivered to brain, kidneys, and other organs and tissues of the body. There is an extreme range of dental mercury uptake from person to person, with the high end approachingJAN-27-2005 19:26 ADS LEGAL Sizadessez P1139 100 micrograms of mercury per day.’ The mercury that is absorbed is retained in various organs and accumulates in the brain, nerves, kidneys, liver, and endocrine glands. 23. ‘The half-life for the elimination of a single dose of meroucy is at least 30 days for the whole body, and as long as 10,000 days for the brain, 24. Scientific studies have demonstrated a statistically significant correlation between mercury concentration: in the human body end the number of mercury amalgam fillings and/or chewing surface area. A greater number of mercury fillings over a larger surface area leads to higher levels of mercary in the body. Blood miercury levels are significantly higher in individuals with mercury amalgams, but eventually retum to normal when the fillings are replaced with a non-mercury material. However, the autopsies of individuals with. mercury smelgam fillings show a higher concentration of mercury in the brain and kidney tiseues thaa the autopsies of individuals without mercury amalgam fillings, 25, The potential health risks of mercury vapor exposure inelude, among other things, neurological problems, rieurotoxicity, psychological and neurological disturbances, eye/vision Problems, oral, cavity disorders, endocrine disorders, cardiovascular problems, respitstory EAficulties, immune suppression nd immunological disorders, renal impairment, allergic ‘actions and rashes, gastrointestinal complications, reproductive consequences, headaches, fatigue, and depression. 26. Because the Icakege of mercury and the subsequent effects is usually slow and Subtle process, the health’ problems caused by dental moroury poisoning are often not apparent until many years after the mercury amalgams are implanted, 27. . Mereury toxicity is particularly harmful to individuals who are hyperscnsitive to mercury. As many as 35% of people with amalgam fillings test hypersensitive to mercury. TheJAN-O7-2005 10:26 ADA LEBAL, Sizaaees62 12/39 incidence of this adverse reaction generally increases with time and the onset may be delayed five or more years, 28. As of June of 2002, Plaintiff Jessica Kerger had twelve mercury amalgam filings in her mouth, i.e. she had 9,000,000 micrograms of mercury in her mouth. 29. . Plaintiff's mercury amalgam fillings were placed in her mouth by dentist Chester Bizga at his office in Cuyahoga County. All, or neatly all, of the mercury amalgam Allings were Placed in Plaintiff's mouth by Dr, Bizga by the time Plaintiff was 23 years old and while Dr. ‘Bizga was a member of the ADA and ODA and relied upon their position on amalgam. 30. Dr. Bizga used the product of Dentsply or its predecessor Johnson & Johnson exclusively when placing the mercury amalgam fillings in Plaintiff's mouth. 31 The amalgam Dr. Bizga placed in Plaintiffs’ mowth was delivered to Dr. Bizga's office in packaging containing the ADA's Seal of. Acceptance, which Dr. Bizge relied upon in his practice of dentistry. 32. Prior to May 2002 Plaintiff had never been informed that these mercury emalgam fillings presented any risk of toxic injury. Prior to April 15, 2002, Plaintiff had no reason to suspect that these mercury amalgam fillings presented any risk of toxic injury. Had Plaintift boen informed of the risk, she would not have consented to the use of the product. 33. For many years, Plaintiff has been experiencing various neurological deficits and other problems related to the hypothalamus. ituitary-adrenal (“HPA”) axis 34. In June of 2002, Plaintif’s family physician ordered Plaintiff to undergo the Memory Lymphocyte Immuno Stimulation Assay (MELISA) which tests for hypersensitivity to ‘various motals and other substances. The results of the MELISA tést showed that Plaintigf was hypersensitive to mercury, the main component of the fillings in her mouth.JeN-a7-2005 10:27 ADA LEGAL Tuzadeas62 P,13/39 35. Purther testing cevesled that Plaintiff was suffering ftom mercury toxicity. Plaintiff bogan and is stil! undergoing treatment for meroury toxicity, 36. Asa direct and proximate result of her exposure to the mercury in her amalgam fillings, Plaintis? suffers a wide range of health problems, including cell damage, tissue damage, organ damage, neurological damage and various newrologicel deficits, aie As a further direct and proximate result of her exposure to the mercury in her amalgam fillings Plaintiff has incuxed various medical expenses, lost wages, experienced pain and suffering, and lost some of the enjoyments of life from which she derived. pleasure prior to her exposure to meroury. In addition, Plaintiff anticipates experiencing these same losses into the future. 38. Defendant Dentsply is a legal entity which transacts business in the State of Ohio, ‘contracts to supply goods and services in this state, regularly undertakes and solicits business in this state, engages in other persistent courses of conduét in this state, and derives substantial revenue from the goods used or consumed in this state 39. | Defendant Johason & Johnson is a logel entity which transaets businese in the State of Ohio, contracts to supply goods and services in this state, regularly undertakes and solicits business in this state, engeges in other persistent courses of conduet in this state, and derives substantial revenue from the goods used or consumed in this state. 40. At all time mentioned herein, Defendant Dentsply and/or its predecessor Defendant Johnson & Johnson’ was engaged: in the business of designing, manufacturing, Compounding, testing, inspecting, paskaging, labeling, advertising, promoting, distributing, ‘marketing, selling, and otherwise placing into the stow of commerce mercury amalgam fillingsJAN-O7-2ee5 1827 ADA LEGAL, siz4q02s62 P1439 41. Defendant Dentsply and/or its predocessar Defendant Johnson & Johnson manufactured and placed into the stream of commerce the meroury amalgam fillings w! implanted into Plaintiff's mouth. 42, At the time the amalgam fillings left its control, Defendant Dentsply and/or its Predecessor Defendant Johnson & Johnson knew or, in the exercise of reasonable care, should have known of the risks associated with mercury amalgam filings which coused the harm for which Plaintiff seeks to recover. 43, Defendant Dentsply and/or its predecessor Defendant Johnson & Johnson failed to provide the warning or instruction that 2 manufacturer exercising reasonable care would have provided conceming the risks of mercury amalgam fillings in light of the likelihood that the product would cause harm of the type Plaintiff secks to recover and in light of the likely seriousness of that harm, 44. Defendant Dentsply’s and/or its predecessor Defendant Johnson & Jobnson's failure to warn of such risks was a proximate cause of the personal injuries suffered by Plaintiff 45. As a direct and proximate result of Defendant Dentsply’s and/or its predecessor Defendant Johnson & Johnson’s failure to warm of the risks, Plaintiff has suffered personal injuries, factuding, but not limited to, veli damage, tissue damage, organ damage, neurological damage, and various neurological deficits, 46. As a further direct and proximate result of Defendant Dentsply’s and/or its predecessor Defendant Johnson & Johnson's failure to war of the risks, Plaintiff has incurred various medical expenses, lost wages, experienced pain and suffering, and lost some of the esloyments of life ffom which she derived pleasure prior to her exposure to mercury, In addition, Plaintiff anticipates experiencing these same losses into the future,Ta-e7-2ees | 18:27 ADA LEGAL Sizaqgass2 P1539 Count Two: Products Liability - Defective Post-Marketing Warnings 47. Plaintiffs allege and reincorporate all well-pled material allegations set forth above as if fully rewritten herein, 48. Defendant Dentsply and/or its predecessor Defendant Jchnson & Johnson manufsctured and placed into the stream of commerce the mercury amalgam fillings which were implanted into Plaintiff's mouth. 49. After the mercury amalgam fillings Jeff its control, Defendant Dentsply and/or its predecessor Defendant Johnson ’& Jonson knew or, in the exercise of reasonable care, should have known of the risks associated with mercury amalgam fillings which caused the harm for which Plaintiff seeks to recover. 50. Defendant Dentsply andlor its predecessor Defendant Johnson & Johnson failed to provide the post-marketing waming or instruction that a manufacturer exercising reasonable care would have provided concerning the risks of mercury amalgam fillings in light of the likelihood that the product would cause harm of the type Plaintiff seeks to recover and in Light of the likely seriousness of that harm, 51, Defendant Dentsply's and/or its predecessor Defendant Johnson & Johnson's failure to wam of such risks was a proximate catise of the personal injuries suffered by Plaintiff 52. As a direct and proximate result of Defendant Dentsply’s and/or its predecessor Defendant Johnson’ & Johnson's failure to provide © post-marketing waming of the risks, Plaintiff has suffered persona! injuries, including, but not limited to, cell damage, tissue damage, neurological damage, and various neurological deficits. 53, As a further direct and proximate result of Defendant Dentsply's and/or its Predecessor Defendant Johnson. & Johnson's failure to provide a post-marketing warning of theJeN-O7-2005 10:28 sizaaaese2 P1629 risks, Plaintiff has ineued various medical expenses, lost wages, experienced pain and suffering, and lost some of the enjoyments of life from which she derived pleasure prior to her exposure to mercury. In addition, Plaintiff anticipates experiencing these same losses into the future, lity ~ Defective Design 54, Plaintiffs allege and reimcomporate all well-pled material allegations set forth above as if fully rewritten herein, 55. The amalgam fillings were defective in design or formulation in that when they Jef the control of Dentsply and/or its predecessor Defendant Johnson & Johnson, the foreseeable risks exceeded the benefits and/or the mercury amalgam fillings were more dangerous than an ordinary consumer would expect when used in an intended or reasonably foreseeable manner. 36. Defendant Densply and/or its predecessor Defendant Johnson & Johnson defectively designed the mercury amalgam fillings and their component parts, and placed them into the trem of commerce where they were implanted into patients, including Plaintiff, in a defective condition and this defective design was a proximate cause of the personal injuries suffered by Plainticr 57. As @ direct and proximate result of Defendant Dentsply’s anor its predecessor Defendant Johnson & Johnson's defective design, Plaintiff has suffered personal injuries, ‘inchiding, but not limited to, cell damage, tissue damage, organ damage, neurological damage, and various neurological deficits 58. As a Ruther direct and proximate result of Defendant Dentsply’s and/or its Predecessor Defendant Johnson & Johnson's defective design, Plaintiff has incurred various ‘medical expenses, lost wages, experienced pain and suffering, and lost some of the enjoymentsJeN-a7-2005 10:28 ADA LEGAL Bizaaarse2 P.17-39 of life from which she derived pleasure prior to her exposure to mercury. In addition, Plaintiff anticipates experiencing these same losses into the future. Count Four: Products Liabili nt Desi 59. Plaintiffs allege and reincorporate all well-pled material allegations set forth above as if fully rewritten herein, 60. Defercdant Denteply and/or its predecessor Defendant Johnson & Johnson owed a duty to use reasonable care under the circumstances to design a product safe for intended use. 61. Defendant Dentsply and/or its predecessor Defendant Johnson & Johnson breached ils duty to design a product to meet its reasonably foreseeable uses in that the mercury amialgam filings are not sufé for its intended use of implanting in the movth for dental health care. 62. Defendant Dentsply and/or its predecessor Defendant Johnson & Johnson breached its duty of product design with regard to mercury amalgam fillings and placed them into the stream of commerce where they were implanted into Plaintiff's mouth. 63. Defendant Dentsply’s and/or its predecessor Defendant Johnson & Johnson's breach of duty was a proximate cause of the personal injuries suffered by Plaintiff 64, As a direct and proximate result of Defendant Dentsply's and/or its predecessor Defendant Johnson & Jolmson's negligent design, Plaintiff has suffered personal injuries, including, but not limited to, cell damage, tissue damage, organ damage, neurological damage, and various neurological deficits 65. As a further direct and proximate result of Defendant Dentsply’s and/or its predecessor Defendant Johnson & Johnson's negligent design, Plaintiff has iictirted Various medical expenses, lost wages, experienced pain and suffering, and lost some of the enjoymentsJaN-a7-2005 10:28 ada LEGAL Bizeaa2s62 P1838 of life from which she derived pleasure prior to her exposure to mereury, In addition, Plaintiff anticipates experiencing these same losses into the future, ducts L jability — Defective Manufacturing/Construction 66. Plaintiffs allege and reincorporate all well-pled material allegations set forth above as if fully rewsitten herein, 67. The amalgam fillings manufactured by Defendant Denteply and/or its predesescor Defendant Johnson & Johnson were defective in manufacture and/or construction in that when the product lefi the control of Defendant. Dentsply and/or its predecessor Defendant Johnson & Johnson it deviated in a material way from the design specifications, formula, or performance standard of Defendant Dentsply and/or its predecessor Defendant Johnson & Johnson, 68. Defendant Dentsply and/or its predecessor Defendant Johnson & Johnson placed into the stream of commerce mercury amalgam fillings which were defective in manufacture or construction, and which were implanted into PlaimtifPs mouth c 69. The defective manufacture or construction of the mercury amalgam fillings by Defendant Dentsply and/or its predecessor Defendant Johnson & Johnson was a proximate cause of the personal injuries suffered by Plaiatite 70. As a direct and proximate result of Defendant Dentsply’s and/or its predecessor Defendant Johnson & Johnson's defective manufacture or construction, Plaintiff has suffered personal injures, including, but not limited to, cell damage, tissue damage, organ damege, neurological damage, and various neurological deficits, 71 As a further direct and proximate result of Defendant Dentsply’s andior its Predecessor Defendant Johnson & Johnson's defective manufacture or construction, Plaintiff has incurred various medical expenses, lost wages, experienced pain and suffering, and lost some ofJAN-B7-2005 19:29 ADA LEGAL, sizaagose2 P1953 the enjoyments of life from which she derived pleasure prior to her exposure to mercury. In addition, Plaintiff anticipates experiencing thesc same losses into the future, Count Six: Breach of Express Warranty. 72.- Plaintiffs allege and reincorporate all well-pled material allegations set forth above as if fully rewritten herein, 73. Defendant Dentsply and/or its predecessor Defendant Johnson & Johnson breached an express warranty to Plaintiff, a user and consumer of Defendant Dentsply’s and/or its predecessor Defendant Johnson & Johnson's mercury amalgam fillings. 74. Defendant Dentsply and/or its predecessor Defendant Johnson & Johnson utilized advertising media, professional publications, including but not limited to the American Dental Association’s joumals, and dental care professionals to urge the use and purchase of mereury amalgam fillings. Defendants expressly warranted to the public, including Plaintiff, that the mercury amalgam fillings were effective, proper, and safe for its intended use. 75. Plaintiff relied on Defer dants’ express warranty in consenting to the implanting of mercury amelgam fillings in her mouth. 76. At the time the mercury amalgam fillings which were implanted into Plaintiff let the control of Defendant Dentsply and/or its predecessor Defendant Johnson & Johnson, the product was defective in that it did not conform to the representations made by Defendant Denstsply and/or its predecessor Deftndant Johnson & ‘Johnson in that the product was not safe, effective, and proper for its intended and foreseeable use 72. ‘The personal injuries to Plaintiff were a direct and proximate result of the breach of these express warranties by the Defendants,JRNS2?-2005 18:29 Apa LEGAL Sizadeass2 P.2a/35 78. As a direct and proximate result of Defendant Dentsply's and/or its predecessor Defendant Johnson & Johnson's breach of express warranties, Plaintsf has suffered personal injuries, including, but not limited to, cell damage, tissue damage, organ damage, neurological damage, and vatious neurological deficits, 79. As a further direct and proximate result of Defendant Dentsply’s and/or its predecessor Defendant Johnson & Johnson's breach. of express warranties, Plaintiff has incurred various medical expenses, lost wages, experienced pain and suffering, and lost some of the enjoyments of life from which she derived pleasure prior to her exposure to mercury. In addition, Plaintiff anticipates experiencing these same losses into the future. Count Seven: ack Imy Warranty 80. “Plaihitiffs allege and reincorporate all well-pled material allegations set forth above as if fully rewritten herein, $1, Defendant Dentsply and/or its predecessor Defendent Johnson é& Johnson breached an implied warranty to users and consumers such as Plaintiff. 52. Defendant Dentsply and/or it predecessor Defendant Johnson & Johnson impliedly warranted to members of the general public, including Plaintiffs, that merenry amalgam fillings were of merchantable quality and sate for the use for which they were intended, ey Implanting in the mouth for use in dental healtheare, Defendants expressly and implicitly ‘warranted that mercury amalgams would be a safe and effective remedy for the cavities within Plaintif's mouth, 83. Plaintiff relied on the sicill and judgment of Defendants in selecting, purchasing, and using the mercury amalgam fillings,SAN-07-2005 10:29 ADA LEGAL Biaqaaes62 P2138 84. Plaintiff's use of the product was a reasonably foreseeable manner of use, Plaintiff relied upon her dentist's oral health care recommendation to place the mereury amalgam fillings in her mouth, 85. At the time the merury amalgam fillings which were implanted into Plaintiff left the control of Defendant Dentsply and/or its predecessor Defendant Johnson & Johnson, the product was defective in that it did not conform to the ‘Tepresentations made by Defendant Dentsply and/or its predecessor Defondent Johnson & Johnson in that the product was not safe for intended and reasonable foreseeable uses, and not of merchantable quality as warranted by Defendant Dentsply and/or its predecessor Defendant Johnson & Johnson, 86, ‘The personal injuries to Plaintiff were a direct and proximate result of Defendant Dentsply’s and/or its predecessor Defendant Johnson & Johnson's breach of these implied warranties, 87. As a direct and proximate result of Defendant Dentsply’s and/or its predevessor Defendant Johnson é Johnson's breach of implied warranties, Plaintiff has suffered personal injuries, including, but not limited to, cell damage, tissue damage, organ damage, neurological damage, and various neurological deficits, 88, As a further direct and proximate result of Defendant Dentsply’s and/or its predecessor Defendant Johnson & Johnson's breach of implied warranties, Plaintiff has incurred various medical expenses, lost wages, experienced pain and suffering, and lost some of the caloyments of life fiom which she derived pleasure prior to her exposure to mercury. In addition, Plaintiff anticipates experiencing these same losses into the future, Count Hight; FraudJArer-2005 10:29. ADA LEGAL Sizaaaase2 Pp. 22-39 89. Plaintiff allege and reincorporate all well-pled material allegations set forth above as if fully rewritten herein. 30. Defendant ADA and Defendant ODA hold themselves out to the public, including Plaintiff. as preeminent authorities on matters of oral healthcare end consistently held themselves Out as such authorities before and during the entire time Jessica Kergor retained meroury arnalgam fillings in her mouth. oO As self described leading authorities on matters of oral health care, Defendant ADA and Defendant ODA continuously represented to the public, including Jessica Kerger, that amalgam fillings were a safe remedy for tooth decay. 92. In representing that amalgem fillings were safe, Defendant ADA and Defendant ~ ODA made material misrcpresentations, 93. Among their material misrepresentations, Defundant ADA and Defendant ODA misrepresented that mercury amalgam fillings were “silver” by referring to them as “silver” filings in their represeutations and in various brochures, pamphlets, advertisements, and other written correspondence and informational materials, (Sce exhibit 1, attached). Defendants wlized this misleading terminology since “silver fillings” would necessarily imply thet the ‘llings are made primarily of silver." Amalgam fllines typically are abowt 50% mercury, a fat ‘that Defendant ADA. and Deferdant ODA failed to disclose in the various materials, which were utinely mated to member-dentists, inchiding Plaintiffs dentist, so, among other things, the materials could be displayed in the office and visible to dental patients including Plaintiff. 94, Among their material misrepresentations, Defendant ADA. and Defendant ODA falsely represented that mercury amalgam fillings are chemically’ bovnd and biologically inactive, In fket, ernalgam is a mixture - the individual ingredients cannot formn # chemical bondJeNn-27-20% ADA LEGAL 3i2se02562 P2335 because they all have full electron shelis. The intermetallic compound that is actually formed is unstable such that the mercury in the amalgam is continuously released into the body, 95. Among their material misrepresentations, Defendant ADA and Defendant ODA misrepresented in various brochures, pamphlets, advertisements, and other correspondence and ‘informational materials the risks, dangers, and effects of mezcory leaking from the amalgan fillings into the bloodstream, 96. Defendant ADA derived a significant income from advocating for amalgam fillings and from the sale of its various written materials which contained material mistepresentations about the risks, dangers, and effect of mercury amalgam Sllings 97. During some of the time that Defendant ADA, a preeminent authority on oral healtheare, was advocating amalgam Defendant ADA slso owned a patent on amalgam (patent numbers 4,018,600 and 4,078,921), 98. Among their material misrepresentations, Defendant ADA and Defendant ODA have misled the public, including Plaintiff, by promoting the “safety of mercury amalgam fillings as oral healthcare auth ities, without revealing their true financial interests in amalgam 99. Among their material misrepresentations, Defendant ADA and Defendant ODA have misled the public, including Plaintiff, through the ADA*s Seal of Acceptance program. ‘The ADA's Seal of Acceptance is a program wherein the ADA uses its name to endorse cestain commercial products, Through the Seal of Acceptance Program, Defendant ADA contracts with the manufacturers of various commercial products and receives, or did receive in the recent past, revenues from those manufacturers. 100. Several manufacturers of meroury amalgam ‘products, including Defendant Dentsply and/or its predecessor Defendant Johnson & Johnson, pay, or did pay in the recent past,JPH-OP-2005 10830 ADR LEGAL sizadarse2 P2439 Tevemues fo the ADA in exchange for seceiving the ADA Seal of Acceptance. Thus, Defendant ADA derives, or did derive in the recent past, a direct financial benefit from its Promotion of amalgam, which was not disclosed. 101, Defendant ADA explains that the Seal of Acceptance on a product means “consumers can be confident that the product meets ADA requirements for “safety and effectiveness and that the manufacturer's claims about that product are accurate.” Defendant ADA claims the Seal on 2 product “is an assurance for consumers and dentists against misleading or untrue statements concerning product, its use, safety and effectiveness.” (See ‘WWw.ada, org/ada/seal/faq.nsp) 102, The ADA’s own website proclaims that the ADA Seal is recognized by mors than 70 percent of Americans as “a standard for oral health care products." The ADA's website siates that the Seal ‘symbolizes dentisry's commitment to protect.the profession and the public” and ‘hat it Gs “an important symbol of a dental product's safety and effectiveness.” (See wonw.ada. org/adia/seal/index.) 103. The misrepresentations of Defendent ADA and Defendant ODA were made Fasely, with knowledge of falsity or with utter disregard and recklessness as to the truth ‘conceming the risks of amalgam to dental patients, including Plaintiee 104. Defendant ADA and. ‘Defendant ODA made the mMisrepresentations with the intent of misleading dental patients, including Plaintiff, into relying on the representations since the Tepresentations were being made by the preeminent authorities on oral health care matters, 105, PlaintifP's dentist reasonebly relied upon the ADA and ODA’s fraudulent ‘misrepresentations regarding wmalgam in bis decision to implant amalgam into Plaintiff's mouthJAN-O?~205 10:30 ADA LEGAL izsaas62 P.25/33 since the ADA and ODA held themselves owt as preeminent authorities on ora) healthoare matters. 106. In addition to making material misrepresentations regarding the dangers of amalgam, Defendant ADA and Defendant ODA omitted and concealed theie financial interest in amalgam and the material facts regarding the true componeats of amalgam fillings, the presence and amount of the mercury in the amalgam fillings, the propensity for the mercury to gradually leak from the #lings, and the devastating effect of the mercury being absorbed into the blood system, 107. Defendant ADA and Defendant ODA failed to disclose and actively concealed that the “silver fillings” they promoted in their capacity as oral healtheate authorities were actually composed of 50% mercury. : i 108. Defendant ADA and Defendant ODA failed 10 disclose and actively concealed the ‘isk, dangers, and effects of mercury leaking from the amalgam fillings in their oral representations end in various brochures, pamphlets, advertisements, and other written correspondence and informational materials. Defendant ADA and Defendant ODA failed to Giscloe and actively concesled that amalgam is a mixture in which the ingredients cannot form a chemical bond due to full electron shells, such that the intermetallic compound is unstable, causing mercury to be continuously released into the body. 109. Defendant ADA and Defendant ODA fuiled to disclose and actively concealed ‘helt financial interest in their promotion of amalgam. Defendants concealed the fact that they derived & significant income from advocating for amalgam fillings and from. the sale of its ‘vasions wailten materials whieh contained material misrepresentations about the risks, dangers, and effect of mercury amalgam Allings,JAN-OT-20%5 19:31 ba LEGAL, Sizaco2ss2 P. 26/38 110. Defendant ADA and Defendant ODA also concealed the material facts about amalgam by actively prevented dentists from communicating the dangers of mercury to their patients through their institution of a gag rule disguised as an “ethical” code, (See exhibit 2, attached) Defendant ADA amended its code of ethics, making the removal of mercuzy fillings unethics] conduct if the reason for the removal is to eliminate a toxic material ‘rom the human body and the recommendation is made by the dentist. This geg rule, classified as an “ethical” tule or code, was passed while the ADA’s patent on amalgam was still in effect (patent numbers 4,038,600 and 4,078,921), which was not revealed to the public. The gag rule prohibits dentists from warning patients of the presence of mercury in the amalgam fillings and the inherent risk and dangers associated with its presence. Although the ADA. is aware that a percentage of the Population is hypersensitive to mercury, the gag rule prevents dentists ftom waming even those pationts of the risks and dangers. ‘The gag rule also prevents dentists from suggesting the removal of mercury amelgam fillings, even for those suffering from mercury toxicity. Pursuant to the gag rule, it is “ethical” for a dentist to place mercury in the mouth of a patient and recommend its safety, but it js unethical for a dentist to even inform the patient ef the risks of mercury. The gag rule is part of the ADA's professional code of conduct and is so stitly enforced by both the ADA and the ODA that dentists tisk suspension of their license by passing on any warnings about mercury amalgam: fillings to their patients. In obstructing dentists’ ability te pass on vital wamings to patients, Defendant ADA and Defendant ODA have actively concealed material information about mercury fillings from dental patients, violating the fundamental principles of informed consent. HT. The ADA's gag rule is ftequently enforced at the state level. For example, a Connecticut dentist recently faced discipline action from the state Department of Public HealthAba LEGAL, Bizaaa2s62 P2738 for publishing an op-ed article in the Connecticut Post which advocated re-exaraining the use of mereury in dentistry. (See exhibit 3, attached) 112, In addition to the gag rule, which prevents dental patients from receiving ‘warnings from their dentist, it is believed and therefore alleged that Defendant ADA and Defendant ODA also actively concealed material facts sbout amelgam by preventing dental patients, including Plaintisf, ftom receiving any warnings from the mamufacturer, in this case Defendant Dentsply and/or its predecessor Defendant Johnson & Johnson. - 113... “At one time, Defendant Dentsply admitted that ita product was unsafe, Defendant Dentsply stated: Contraindication: The use of amalgam is contraindicated: In proximal or occlusal contact to dissimilar metal restoretions. Jn patients with severe renal deficiency. In patients with known. allergies to mercury. For retrograde or endodontic filling. As a filling material for cast crown. Jn children 6 and under, Ih expectant mothers. 114. Other manufacturers of ‘amalgam have briefly issued similar: ‘wamings in the past. 115. Upon information and belief, Defendant ADA pressured manufacturers, including Defendant Dentsply ani/or its predecessor Defendant Johnson & Johnson, to remove warnings from their labels, and the limited wamings were quickly removed from the labeling and not provided to dental patients, including Plaintiff, as a direct and proximate resulf ofthe actions of Defendant ADA.JeN-87-2005 12:31 ape Lega. sizaanese2 FP. 28. 116. It is believed and therefore alleged that Defendazt ADA and Defendant ODA concealed the material {acts conceming the risks and dangers of amalgam with knowledge or utter disregard and recklessness as to.the truth concerning the risks and dangers of amalgars to dental patients, including Plaintiff. 117. It is believed and therefore alleged that Defendant ADA and Defendant ODA concealed the material facts conceming amalgam with the intent of misleading dental patients, including Plaintiff, into relying on the representations since the representations were being made by the preeminent authorities on oral health care matters. 118. As a direct and proximate result of Defendant ADAYs and Defendant ODA's fraudulent concealment of meterisl facts concerning the risks and dangers of amalgam, Plaintiff id not have any reason, prior to April 15, 2002, to suspect that the amalgam fillings in her mouth constituted a hazard toher health, 119. As a direct and proximate result of Defendant ADA’s and Defendant ODA's concealment of the risks and dangers of amalgam by obstructing individual dentists from relaying the risks to their patients and by preventing dental patients from receiving manufscturer’s wamings, Plaintiff did not receive any warnings conceming the sisles and dangers of mercury amalgam fillings, even though it was particularly vital for Plaintiff to receive them. 120. Defendants held themselves out as oral healthcare authorities and intended for the Public, including Plaintiff Jeasioa Kerger, to rely on their positions on matters of aral health care and knew that such reliance existed, 121, Because Defendants held themselves out as oral healthcare authorities and induced the reliance of many dentists, Plaintiff Jessica Kerger relied upon their position on amalgam until 2002,19:32 ADA LEGAL, sizeq2562 P.25/38 122. Because Defendants held themselves out as oral health care authorities and knew that the public, including Jessica Kerger, relied upon their endorsement of amalgam, Defendants ‘owed a duty to be forthcoming about the dangers of mercury amalgam fillings, to refrain from making any misleading statements regarding the safety of amalgam as en oral healthcare remedy, fo comect all prior misrepresentations concerning amelgam. 123, Defendants failed to exercise reasonable care to disclose material facts sbout amalgam, including, but not limited to, the presence and amount of the mercury in the “silver” fillings, the fact that mercury slowly leaks from the unstuble intermetallic compound, and the devastating effect of mercury on the central nervous system. 124. As a direct and proximate result of Defendant ADA's and Defendant ODA's ‘fraudulent misrepresentations and omissions, Plaintiff did not have any reason, prior to April 15, 2002, to suspect that the amalgem fillings in her mouth constituted # hazard to her health, 125. The knowledge of the material facts about amalgam fillings would have justifiably induced Plaintiff to refuse to have the amalgam fillings implanted in her mouth. After having them implanted, knowledge of the material facts about amalgam filings would have Justifiably induced Plaintiff to have the amalgams removed. Once Plaintiff obtained knowledge of the material facts about amalgam fillings in 2002 Plaintiff was induced to have them removed, ‘but by that time Plaintiff had already sustained substantial neurological damage, 126. In retaining her amalgam fillings until 2002, Plaintiff Jessica Kerger reasonably, relied upon Defendants’ false assurances since Defendants held themselves out as preeminent suthorities on oral healthcare, and relied upon assurances that amalgam fillings were “silver”, that mercury amalgam was a safe and effective oral healthcare remedy, and that there were no sks or dangers that she needed to be informed about before agresing to have mercury amalgamJRN-B7-2005 10232 ADA LEGAL Si2aa2s: fillings placed in her mouth and keeping them in her mouth, In reliance upon Defendants? assurances and endorsements, Plaintiff agreed to have the mercury amalgams placed in her mouth and did not have them removed until substantial damage had been caused. Absent Defendants’ misrepresentations and Defendants’ actions which prevented warnings from reaching the Plaintiff, Plaintiff would not have agreed to have any amalgam fillings placed in her mouth. 127. Defendants knew their failure to disclose the material facts about the mercury fillings rendered their prior misrepresentations about the “silver” fillings untrue or misleading. 128. Defendants breached their duty to disclose the material facts about amalgam. 129. As a proximate result of Defendants’ breach of duty and Defendants’ acts of concealment which prevented warnings ftom reaching the Plaintiff Plaintiff retained approximately 9,000,000 micrograms of mercury in her mouth until 2002, by time substantial neurological damage had already been sustained. 130. As a proximate result of the fraudulent misrepresentations and omissions of Defendant ‘ADA and Defendant ODA, end Plaintiff Jessica Kerger’s reasonable reliance thereon, Plaintiff has suffered personal injuries, including, but not limited to, cell damage, tissue damage, orgen damage, neurological damage, and various neurological deficits. 131. As a further direct and proximate result of the fraudulent conduct of the Defendant ADA and Defendant ODA, Plaintiff has incurred various medical expenses, lost ‘wages, experienced pain and suffering, and lost some of the enjoyments of life from which she derived pleasure prior to her exposure to mercury. In addition, Plaintiff anticipates experiencing © these same losses into the future.JAN-O?-2005 10:52 ADA LEGAL, sizaag2s62P.31/39 132, The fraudulent actions and omisstons of Defendant ADA and Defendant ODA toward Plaintiff were conducted with malice and knowledge of the harm that would be caused, and were gross, egregions, and/or aggravated by the existence of malice and il! will, and/or constituted a corrupt condition of affairs for which Plaintii socks the additional award of punitive damages. ‘Count Nine: Violation of the Ohio Deceptive Trade Practices Act 133, Plaintiffs allege.and reincorporate all well-pled material allegations set forth above as if fully rewritien herein. 134. All Defendants have made untruc, deceptive, and misleading statements and omitted material facts in promoting mercury amalgam, 135, Defendant ADA and Defendant ODA have represented that mercury amalgam has Characteristics, ingredients, and benefits that it does not have. Defendant ADA and Defendant ODA have falsely represented that amalgam is silver, when in fact it is approximately 50% mercury. Defendant ADA and Defendant ODA have felsely represented that amalgam is chemically bound and biologically inactive, when in fact amalgam is an unstable mixture that continuously leaks mercury vapors when placed in the mouth of an unsuspecting dontal patient 136. Defendant ADA’s and Defendant ODA’s misrepresentations regarding the charactetistics, ingredients, and benefits of mercury amalgam constitute a violation of the Ohio Deceptive Trade Practices Act, R.C. 4165, 137. Im addition to misrepresentations regerding the characteristics, ingredients, and benefits of mercury amalgam, all Defendants have undertaken the deceptive practice of Promoting mereury amalgam as safe and without health riske, Among other deceptive acts, all Defeadants have promoted mercury amalgem through the ADA's Sexl of Acceptance program,07-2085 19:35 ADA LEGAL Bizsamese2 P.32/38 138. Under the ADA’s Scal of Acceptance program, the ADA uses its name to endorse certain commercial products. The ADA contracts with the manufacturecs of various commercial products and has received revenues from those mamufacturers through its Seal of Acceptance program. 139. Several manufacturers of mesoury amalgam products, including Defendant Dentsply and/or its predecessor Defendant Johnson & Johnson, have paid revenues to the ADA in exchange for receiving thie ADA Seal of Acceptance. Thus, the ADA has derived a direct financial benefit from its promotion of amalgam. 140. According to the ADA, the Seal of Acceptance on a Product means “consumers can be confident that the product meets ADA requirements for safety and effectiveness and that the manufacturer's claims about that product ere accurate." The ADA claims the Seal on a prodvet “is an assurance for consumers and dentists against misleading or untrue statements conceming a product, its use, safety and effectiveness.” The ADA's ovm website proclaims that the ADA Seal is recognized by more than 70 percent of Americans as “a standard for oral health care products.” The ADA’s website siates that the Seal “symbolizes dentistry's commitment to protect the profession and the public” and that it is “an important symbol of # dental product's safety and effectiveness.” 141, In promoting mercury amalgam through the Seal of Acceptance program, Defendant ADA, Defendant ODA, Defendant Dentsply and/or its predecessor Defendant Johnson & Johnson misrepresented to the public'the characteristics, ingredients, and benefits of ‘moroury amalgatn filings in violation of che Ohio Deceptive Trade Practices Act, R.C. 4165. 142, Plaintiff relied upon Defendants’ deceptive trade practices and misrepresentations about mercury amalgam which violated the Ohio Deceptive Trade Practices Act and consentedTAN-@7-2005 19033 ADA LEGAL, Bizadaeses P.33-39 to have mercury amalgam fillings placed in her mouth, Absent Defendants’ mistepresentations and deceptive trade practices, Plaintiff would not have agreed to have any mercury amalgam fillings placed in her mouth. 143, As a further direct and proximate result of Defendants’ violations of the Ohio Deceptive Trade Practices Act, Plaintiff has suffered personal injuries, including, but not limited to, cell damage, tissue damage, organ damage, neurological damage, and various neurological deficits, 144. AS a further direct and proximate result of Defendants" violations of the Ohio Deceptive Trade Practices Act, Plaintiff has incurred various medical expenses, losi wages, experienced pain and suffering, and lost some of the enjoyments of life from which she derived pleasure prior to her exposure to mercury, In addition, Plaintiff anticipates experiencing these same losses into the future. 145. Defendants’ violations of the Ohio Deceptive Trade Practices Act, described herein, were committed willfully such that Plaintiffs are entitled to ettomeys” fees pursuant to RC. 4165, Count Ten: Negligence 146, Plaintitis allege and reincomporate all well-pled matcrial allegations set forth above as if fully rewritten herein. 147. In exchange for membership dues, the ADA and the ODA did provide and continue to provide its members with information and advice on matters of oral healthcare, including aialgam, which is intended to be passed along to the dental patient. 148, Defendant ADA and Defendant ODA should recognize their service of providing informationJAN-C?-2025 10:33, apa LEGAL and advice on matters of oral healthcare, including amalgam, to member dentists is necessary for the protection of dental patients, including Plaintiff Jessica Kerger. As preeminent authorities on matters of oral health care, Defendant ADA and Defendant ODA should recognize that dental patients, including Plaintiff, are adverscly affected if dentists are not given the correct information in exchange for their membership dues. 149. Defendant ADA and Defendant ODA failed to exercise reasonable care in providing information and advice on matters of oral health care, in exchange for membership dues, to their members. 150, As a proximate. cause of Defendant ADA and Defendant ODA’s failure to exercise reatonable care in providing information and advice on matters of oral health care, including amalgam, to Plaintiff's dentist, Plaintiff received maultiple amalgam fillings and retained 9,000,000 micrograms of mercury in her mouth for several decades which proximately caused mercury toxicity and substantial neurological damage. 151, Defendant ADA and Defendant ODA’s failure to exercise reasonable care in providing information and advice on amalgam increased the risk of harm to Plaintiff because had Defendant ADA and Defendant ODA exercised reasonable care Plaintiff would have received the appropriate wamings and chosen not to have the amalgam installed or had the amalgam removed before substantial neurological damage was sustained, 152. Defendant ADA and Defendant ODA assumed a duty to Plaintiff Jessica that ‘would ordinarily be owed by a dentist because Defendant ADA and Defendant ODA passed and enforced the “gag” ale which prevented any of Plaintiff's dentists ftom providing the sppropriste wamings. Ry these actions, the ODA and ADA voluntarily assumed the duty toJeN-B7-2005 10:33 ADA LEGAL Bizdanzse2 P.35/39 warn Plaintiff of the dangers and ritks of amaigam. The ODA and ADA’s breach of this duty proximately resulted in Plaintiff sustaining substantial neurological harm. 153, Plaintiff sustained substantial neurological damage as a proximate result of retaining 9,000,000 micrograms of mercury in her mouth for several decades. Plaintiff retsined the 9,000,000 micrograms of mercury until 2002, when substantial neurological damage had already been sustained, because until 2002 Plaintiff relied upon the Defendants’ position on amalgam. During that same time period, Plaintiff’s dentists also relied upon the Defendants” Position on amalgam. 154, As @ proximate result of Defendants’ breach, Plaintiff hes suffered personal injuries, including, but not limited to, cell damage, tiseue damage, orgen damage, neurological damage, and various neurological deficits. 155. As a further direct and proximate result of Defendants? breach, Plaintiff hag incurred various medical expenses, lost ‘wages, experienced pain and suffering, and lost some of the enjoyments of life from which she derived pleasure prior to her exposure to mercury. In addition, Plaintiff anticipates experiencing these same losses into the future. nt Kleven: Lack of Informed Consent 156. Plaintiffs allege and reineorporate all well-pled material allegations set forth above as if fully rewritten herein. 157. Defeodant ADA, Defendant ODA, and Defendant Denisply and/or its predecessor Defendant Johnson & Johnson have concealed material facts and provided false. information regarding the risks of harm and toxic injury from mercury arnelgam fillings,Jan-a7-2025 10:34 ADA LEGAL Bizdderss2 P.36. 158. Defendants, particularly Defendant ADA and Defendant ODA, hold themselves ‘out as the preeminent authorities oa oral healtheate, 159. Defendant ADA, Defendant ODA, and Defendant Dentsply and/or its predecessor Defendant Johnson & Johnson actively marketed mercury amalgam fillings with the Seal of Acceptance program. In marketing and promoting amalgem in this way, Defendants assured dental patients, including Plaintiff, that the mercury amalgam fillings placed in Plaintiff's mouth were safe and effective, 160. All or nearly all of Plaintiffs’ amalgam fillings were placed in her mouth by Dentist Chester Bizga during the period of time when he was a member of the ADA and ODA and relied upon their position on amalgarn. During that same period of time Dr. Bizga used the product Dispersally exclusively, which he Purchased from Johnson & Johnson and which came in packaging bearing the ADA’s Seal of Acceptance. ‘Dr. Bizga relied upon the ADA's Seal of ‘Acceptance in his decision to implent amalgam into all his patients, inciuding Jessica Kerger. 161. Booause Defendants ADA end ODA took it upon themselves to actively promote the safety and effectiveness of mercury amelgam fillings, to control and restrict the information relayed to the patient by the dentist, and to contro! the information relayed to the patient by the ‘manufacturer, the Defendants cwed a duty to dental patients, including Plaintiff Jessica Kerger, to be forthcoming about the risks and dangers of the mercury Gllings and refrain fro making misleading statements ubout mercury fillings so Plaintiff could make an informed decision before she consented to having mercury placed in her mouth. Defendant ADA. particularly owed this duty to Plaintiff because it held itself ‘out as the foremost authority on oral healtheare and actively promoted the safety and effectiveness of mercury amalgam while concealing its financial interest in amalgam from Plaintiff,JPN-B7-2005 18:34 ADA LEGAL sizaqe2s62 P.37/39 162. Asa direct and proximate result of Defendants” misleading statements and active concialment of the risks and dangers of mercury amalgam fillings, Plaintiff consented to having twelve mercury amalgam fillings placed in her mouth. If Defendants had been forthcoming sbout the risks involved, Plaintiff never would have consented to having any mercury amalgam fillings placed in her mouth, Had Plaintiff had been informed about the risks subsequent to the mercury amalgam filings being placed in her mouth, Plaintit€ would have bad dhe removed immediately. 163. As a direct and proximate result of Defendants’ misleading statements and active concealment of the risks and dangers of mercury amalgam fillings, which constituted a breach of Defendants’ duty to Plaintiff, Plaintiff has suffored personal injuries, including, but not limited to, cell damage, tissue damage, organ damage, neurological damage, and various neurological deficits. 164. As a further direct and proximate result of Defendants’ breach of duty, Plaintiff ‘has incurred various medical expenses, lost wages, experianced pain and suffering, and lost some of the enjoyments of life from which she derived pleasure prior to her exposure to mercury. In addition, Plaintiff anticipates experiencing these same losses into the future, Count Twelve: Loss of Consortium 165. Plaintiffs allege and reincorporate all well-pled material allegetions set forth above as if fully rewritten herein, 166. As a direct and proximate result of Defondauts’ conduct as set forth above, Richard Kerger, has suffered, and will continue to suffer, the loss of services, society and ‘companionship of his wife he would otherwise have been able to enjoy.JeN-M7-2005 18:34 Aba LEGAL Bizaanase2 P.3a/33 167. As a direct and proximate result of Defendants’ conduct as set forth above, Samantha Kerger, Jack Kerger, and Benjamin Kerger have suffered, and will continue to suffer, the loss of services, society and companionship of their mother which they would otherwise have been able to enjoy. WHEREFORE, Plaintiff Jessica Kerger prays. for judgment against each Defendant individually and all Defendants Jointly and severally in an amount exceeding Twenty-Five Thousand Dellers ($25,000.00) in compensatory damages and for punitive damages in an amount (0 be determined at trial for the wrongful acts complained of hercin. Plaintiff Richard Kengor further prays for judgment against cach Defendant individually ang all Defendants jointiy and severally on Count Eleven for loss of consortium in an amount exceeding Twenty-Five ‘Thousand Dollars ($25,000.00), Plaintiff Richard Kerger fiather prays for judgment for Samantha Kerger, Jack Kerger, and Benjamin Kerger, the minor children of Plaintiffs Jessica and Richard Kerger, against each Defendant individually and all Defendants jointly and severally on Count Eleven-for loss of consortium in an amount exceeding Twenty-Five Thousand Dollars ($25,000.00). Plaintiffs also request altomey fees, including those authorized by R.C. 4165, expert fees, the costs incurred in the’ prosecution and litigation herein, pre-judgment and post- judgment interest and any other relief which the Court deoms just and cquitable under the circumstances, ‘Charles M. Murray (0052083) Mary M. Moriarty (0073022) a wurravandonurra MURRAY & MURRAY CO, LP.A. 111 B. Shoreline DriveJAN-aP-2025 19235 ADA LEGAL sizacoesse P.33/38 P.O. Box 19 Sandusky, Ohio 44871-0019 Telephone: (419) 624-3000 Fax: (419) 624-0707 Attomeys for Plaintiffs JURY DEMAND Plaintiff hereby requests trial by jury in this action. Charles M. Murray (0052083) MURRAY & MURRAY CO,,E.P.A. Attomeys for Plaintifis PRECIPE TO THE CLERK Please serve the complaint upon defendants by certified mail, retum receipt requested, at the address listed on the face of this complaint, along with a copy of same. Charles M. Murray (0052083) MURRAY & MURRAY CO, LP.A. “Attorneys for Plaintiffs Tnral p.3a