ApptoDismiss(5b

8/4/2019 ApptoDismiss(5b

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CLINICAL NEGLIGENCE (in part) IN THE HIGH COURT OF JUSTICE CLAIM NO. HQ11X01668

QUEENS BENCH DIVISIONbetween:-

ROBIN PHILIP CLARKEClaimant

and

THE DEPARTMENT OF HEALTH

/ THE CHIEF DENTAL OFFICERDefendant

APPLICATION TO DISMISS APPLICATION

Introduction

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

2. The proper purpose of strike-out and summary judgment is to act as a sortof filter and reduce inefficiency, in respect of statements of case (or partsthereof) of which the inadequacy can be shown both clearly and quickly.Thereby can be properly avoided much further work on such cases.

3. A defendant may misuse the strike-out procedure, in the hope of avoidingthe matter coming to a proper trial, and in the hope of generating confusion

and prejudicing the outcome by “turning the tables” on the claimant suchthat the claimant becomes treated as the defendant of his claim rather thangiven the proper opening presentation of the claim that the normal processrightly grants.

4. The application by the Defendants falls firmly into the latter, abusivecategory. If there were so much as a single clear fatal defect of the Claim,they could just state it and rest their case thereupon. But instead they onlyput forth a barrage of consistently misleading assertions which confusinglyturn just about all the issues of the case on their head. It will be shown here

that all eleven supposed faults of the Claim are entirely specious, 100% false.

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

5. Consider for instance, their opening premise, their Paragraph 4(1) notionthat “use of dental amalgam incontrovertibly accords with the views of areasonable body of …. opinion”. That surely decisively demolishes theClaim, given their four pages of impressively-authoritative citations and thethick wadge of exhibits they attach?

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6. Nearly two pages of the Defendants’ Application are taken up with

paragraph 9, in which they boast about how their “experts” are supported bythat long quotation from a WHO 2009 report. And yet these Defendants,despite having the great resources of the DH at their disposal, fail tomention that that WHO 2009 report was retracted five months earlier by theWHO themselves due to being a fraudulent propaganda concoction (asindicated by Exhibits RPC1, RPC2, RPC3, and conspicuous absence fromthe WHO’s own website). The Defendants are now routinely quoting thatfraudulent report at their victims.

7. Their paragraph 8 contains a similar long quotation from FDA 2009 asbeing supposedly better experts than the Claimants’ own experts. And yetthey fail to mention the ongoing massive legal challenges to that FDA 2009,and nor do they mention the serious corruption surrounding it (ExhibitRPC4). While in charge of preparing FDA 2009, Commissioner Hamburg

was improperly holding $200,000 Schein amalgam stock options. She saysshe recused herself from involvement but has refused to say quite when.She passed it on to her FDA successor Scharfstein who is currentlyhopelessly attempting to defend his improper suspension of a famousmercury researcher in the Mark Geier v Maryland Board of Physicians case.Such are the Defendants’ “respectable” “experts”. A serious flaw of FDA2009 was also pointed out in Particulars 23(g).

8. Then their paragraph 7 contains yet another of these boasting quotations,this time from SCENIHR 2008. And yet they make no mention of thedamning critiques which were cited in the Particulars of Claim themselves

(Paras 23(a), 35(b), 35(c), plus I was going to add more in evidence stage).And of course they make not the slightest rebuttal of those critiques either,because, as said in Particulars Para 29:

“These “experts” never answer the criticisms, or even acknowledge theirexistence. Because they have no answers.”

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

“The SCENIHR amalgam expert group consisted of one engineer(chairman), four dentists, a toxicologist, and two vetinarians. Thechairman had tight contacts to the industry. No experts for medicine orenvironmental medicine were included. One must wonder why it wasthe dentists who represented the strongest party in SCENIHR. Due totheir education and clinical experience, dentists are not able to judgemedical systemic side effects caused by dental amalgam….”

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

“….more distinguishing for what it has left out than for what it contains.

… We cannot find any reference to…. Likewise we find no informationon…. Not so for other health effects….. We must assume the omission

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is deliberate…. We can find no discussion on…. This “greenwashing”report will not be accepted in Scandinavian countries where theawareness of amalgam toxicity is widespread and the report is more akinto the “science” produced by the tobacco industry.”

And numerous other equally damning critiques of SCENIHR’s “expert”report are publicly available to read, but again, never mentioned by theDefendants (or by the SCENIHR themselves).

9. Not satisfied with the above three-card trick, the Defendants add to it (inParagraph 10) yet another of these trade propaganda scripts, the WHO/FDI1997 statement, the untruthfulness of which was already shown inParticulars Para 23(d), but of course they make no mention of that either.

10. You can thus see that the greater part of the Defendants’ Application istaken up with that parade of misleading misinformation, well-designed to

mislead a reader that they really do have all that sound respectable expertiseon their side, when in reality their very Application itself proves to be anoutstanding accidental Witness Statement illustrating the exact counter-

point : that their “experts” are indeed in reality falsifying charlatans whoonly present one side of the case and pretend the other side does not exist—which was exactly the tortious conduct being alleged in this Claim.

So why should we believe anything else that’s written above theDefendants’ “Statement of Truth”? And why, if there is any genuineexpertise defending amalgam usage, do they instead so consistently only

call up pseudo-expertise, again and again, in their support?~~~~~~~~~~

11. It will next be shown that the entire remaining content of the Defendants’Application is equally misleading and meritless, indeed outrageous.

Alleged deficiency in respect of evidence of causation

12. The assertions in the Defendants’ Paragraph 11 about a supposed deficiencyof expert evidence on causation were already addressed in the Addendum reExperts, to which they have here made no reference let alone rebuttal –because, again, they have no answers. And the point that “there are noexperts” is now even more laid bare, thanks to the Defendants’ self-incriminating paragraphs 7, 8, 9, and 10, exposed hereabove.

Yet more pseudo-expertise on causation

13. Their Paragraph 11 further asserts that KH7 (RPC7 herewith) constitutesuseful expert counter-evidence on causation. And yet that letter from DrWhittington was written on the basis of merely two meetings to chat withme, 34 years ago. Dr W. was a General Practitioner with no expertise inpsychiatry or toxicology, did not rule out mercury, and no tests were done.He merely suggested that commonplace Freudian speculation that “These

would seem to relate to his upbringing.”, which is nowadays consideredvery dated and non-scientific in scientific circles.

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

14. The next supposedly damning fault is raised in Paragraph 4(2), that “TheClaimant does not plead or identify any reasonable body of scientific / medical / dental opinion which suggested that at that time [40 years ago]

that the use of dental amalgam was clinically inappropriate.”15. On the contrary, Particulars Paragraphs 17 and 18 gave citations on exactly

that point, and indicated the existence of more: “Numerous studies andreports exist, for example:… Numerous examples include:…” Substantialcuts were made to the Particulars here, due to complaints that it was far toolengthy. And this case has not even got to the evidence stage yet.

16. In the context of the many regular intense condemnations of the use of amalgam, and testimony to its causing classic mercury vapour disabilities,in the 1960s the duty of care burden of proof lay on the Defendants to show

safety. But instead they sided with the amalgam trade lobby and theirconcealment of the truth, exactly as is now exposed in their latestdisgraceful document that is the Defendants’ Application.

17. For approximately forty years the Claimant was incapacitated by the classicmercury poisoning syndrome repeatedly described by these earlier sources,and yet in all that time the Defendants did nothing about it except misleadyet more victims with complete lack of informed consent and with absolutedenial that there was any possibility of even the slightest causation byamalgam (as per nauseatingly lengthy Particulars Para 27).

Alleged lack of pertinent advice from the Defendants

18. Paragraph 6 states “I am unable to identify …. any asserted advice given bythe Defendants at the time …. over 40 years ago.” Exhibit RPC8 herewithshows advice being given by the Chief Dental Officer in 1998. Its secondsentence, “COT last considered the safety of dental amalgam in 1986…”makes clear that a previous such advice operation took place in 1986 andthere was at least one previous to that. Subsequent to the EmergencyMedical Service founded in 1939, the NHS was founded in 1948. It isunreasonable to expect the Claimant to locate some advice document fromthe mid-1960s when the advice or negligent absence thereof obviously

existed anyway. They wouldn’t have advised for instance use of leeches orhead-hammering therapy in the the NHS. But they did advise (or notcaution against) storage of large lumps of a notorious neurotoxin in mouthstwo inches from brains, because a profitable trade lobby pressed them to.

19. RPC8 shows that the Defendants were giving such false advice more than25 years ago and thereby have for many years prevented the due diagnosisand treatment of the Claimant’s classic mercury poisoning syndrome. Andit is too improbable to deny that already in the 1960s the same adviceexisted in fact or implicitly in omission (suppressing valid risk warnings),and thus was also causal to the initial installation of nineteen amalgams inthe teenage Claimant at that time.

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Alleged public law immunity and hence lack of duty of care

20. Paragraph 6 continues by asserting public law immunity, and concludingwith the assertion that the proper defendants would be the dentists involved.But dentists are not toxicologists and do not pretend to be. Just as a High

Court Judge is not so arrogant as to pretend to be a medical expert, likewisedentists reasonably give trust to the advice so confidently pressed on themby the Defendants in documents such as RPC8. The dentists could notreasonably be considered negligent in doing so, and indeed the blameproperly lies with the authors of the defective advice, so a judgment againsta dentist would be both unjust and unavailable. Redress accordingly canonly be against the authors of the negligence, namely the extant Defendants.

21. Paragraph 6 further misleads with the assertion that “The expression of views by the Government and Chief Medical Officer are obviously publicacts which cannot give rise to a private law duty.” Exhibit RPC8 explicitly

shows “advice”, medical clinical practice advice, being given not to thegeneral public but specifically to an audience of “General DentalPractitioners” and “General Medical Practitioners”. It is thus obvious thatRPC8 is medical advice from officers acting as higher-level advisoryconsultants in the medical system. “Free from risk” is a statement of medical advice. A statement of public policy would consist instead of forinstance “Amalgam is hereby permitted for use in all patients’ teeth”.

22. And in line with this the Defendants’ website repeatedly states that the roleof the CDO is to advise, or to give advice, as an advisor.

23. Compared to the spin-doctoring characterisation as “expression of views bythe Government and its Chief Medical Officer”, a greatly more reasonablecharacterisation is as follows. NHS junior doctors and their assistants areliable for negligent clinical practice. There is thereupon a heirarchy of moresenior medics and consultants who may provide advice to the preceding.They are all liable for any negligent clinical advice. They risk losing their

jobs for it. This goes up the scale until it reaches the top ranks who give top-leveladvice on what the lower practitioners should be doing clinically. Thesetop-level personnel, such as the Chief Dental Officer and the MRHA, are

thus performing exactly the same function of clinical advice as are thelower clinical consultants, hence with the same duty of care to the patientsto whom their advice is applied. And yet the Defendants would have usunderstand that a peculiar immunity from blame for negligence suddenlyarises in respect of just those top levels; and that a peculiar inaccessibilityof justice suddenly arises at that same point, in peculiarly sharp distinctionfrom the well-developed system of compensation for all other acts of NHS(and hence DH) negligence.

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24. Even though the clinical advice from the CDO is at a nationwide level,

there arises none of the considerations which elsewhere might justify publiclaw immunity. Notably, the Defendants have not put forth any actual suchconsideration. It is not a matter of competing demands on resources, or of valid political choice. It is a matter of choosing to endanger the health of un-informed victims by practicing false medicine for profiteering purposes,and then systematically pretending it has not happened and persistentlypreventing due treatment. And a recent public commentary by BirminghamLaw Society stated the important consideration that:

”Clinical negligence litigation has acted as a major incentive and sourceof learning to promote better patient safety. If people cannot challengethe standard of care they receive there is a risk that the NHS willbecome complacent and fail to learn lessons or seek to improve.”

25. It is not even that the Defendants should have banned amalgam outright, but

only that they should not have promulgated such a regime of falsehoodabout it, enduringly preventing any restorative treatment of those who wereinjured by it. And now seeking to prevent even any funding for thetreatment they callously deny, in their perverted concept of justice.

26. It is not even as if the Claimant is here seeking to have Dr Cockroftpersonally dragged before a jury and then sacked and bankrupted forinjuring the Claimant and others (though many would).

Allegation of 2004 or 2007 “date of knowledge”

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

28. Contrary to their yet further false assertions, the Defendants’ exhibits KH8and KH9 (here RPC9 and RPC10) show no knowledge whatsoever, neitherof causation nor, equally critically, of negligence of DH advice, let aloneany suggestion of possible legal action or even who a defendant might be.

29. Asserting something is absolutely different from knowing it. Thousands of people adamantly assert that three of the World Trade Center towers weredemolished by secretly-planted bombs and then fell at free-fall speed intotheir own footprints. Yet they certainly don’t know any of this, and their

“knowledge” would rightly be dismissed by every court in the world.30. The Claimant did assert his “confidence” that the amalgam was causal, but

only by way of a desperate attempt to persuade them to provide reasonableprecautionary treatment for his terrible illness. He had not at that timemanaged to find anything even remotely like real compelling scientificevidence to prove causation (indeed none of that now raised in theParticulars, let alone the Addendum), and so there would have been not theslightest prospect of filing a winnable claim on the basis of his mereassertions and gross lack of knowledge at that time, especially in the face of a daunting parade of official "experts" deceiving everyone with absoluteassertions that there was not the slightest evidence of harm (as per above).

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31. The email KH8 / RPC9 was concerned with the lack of evidence of safety,

which is quite distinct from any possible positive evidence of harm. Noknowledge of evidence of causation of the injuries is indicated in it. Theonly content relating to any positive harmfulness is the quotations from theSwedish 2003 report, and yet the most that that report contains is thosemere assertions that “amalgam must be considered an unsuitable material”,and “amalgam should be eliminated in dental care”. No supportingscientific references or argument were contained in that 2003 report bywhich a claimant could defend those assertions against the weight of seemingly much more authoritative counter-assertions such as thoseparaded in this very Defendants’ Application. Let alone establish causalityof the Claimant’s particular symptoms, of which nothing was even asserted

in that 2003 report. It was precisely because of the inadequacy of thatreport that the Claimant was several years afterwards still trying to findactual scientific evidence that could convert his fears into genuine confidentknowledge of what was causing his disabilities.

32. The letter KH9 / RPC10 was primarily about the Claimant’s update reviewof his autism theory (i.e. the paper it mentioned as being there-attached),which had nothing whatsoever to do with the Claimant’s illness as he hasnever had (nor claimed to have) any autism-type condition, which wouldnot begin at age 17 anyway.

33. That letter did contain a desperate appeal for treatment of his terribleillness. If he had had any significant evidence of causation to call upon, hewould surely have included it there. He did not, and we can therefore infer

that he indeed did not have any such knowledge. KH9 / RPC10 is thereforeevidence of the exact contrary of what the Defendants assert. And exactlylikewise the request for precautionary treatment in email KH8/ RPC9.

34. Furthermore, the “date of knowledge” also cannot precede “date of knowledge” of the causal negligence of advice by the Defendants, whichdid not become apparent to the Claimant until several years later still. Andfurtherfurthermore, a case in the US Federal Appeals Court (exhibitRPC11) recently ruled that date of knowledge can only begin once the“medical community at large” recognises a link, in which case has it even

occurred yet?35. The whole concept of “date of knowledge” is flawed in the context of a case

such as this where there is in reality only a suspicion, a theory, in support of which bits of evidence gradually accumulate, with no decisive date such aswhen a patient discovers an object has been left in his chest. The “date of knowledge” concept originated with that very different sort of case in mind.

Allegation that there are no good reasons for disapplying a time-limit

36. This section is superflous in view of the preceding one, but will still beincluded here so as to show the 100% completeness of the vacuousness of

the Defendants’ Application.

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37. Their Paragraph 12 asserts that “there can be no good reasons for dis-

applying the time limit in this case”. But yet again this is falsehood.

38. Supposedly the fact that the Claimant’s disabilities have spanned about fourdecades, and the Claimant has been increasingly desperately appealing for

treatment for seven years, raises an “obvious prejudice caused by thisadditional delay in issuing proceedings”. Really? Would not an “obvious”fairer view be that in the context of those greater time-spans of inexcusableinaction by the Defendants themselves, anyone demanding a mere three-year limitation period would be positively mean-minded? Most victims of the same experiences as this claimant would have topped themselves longago. Relevant to Limitation Act 1980 s.33(3)(b) and (d).

39. This unreasonableness is all the more so, given that as per Limitation Act1980 s.33(3)(c) the Defendants have been very far from assisting withenabling of any of the “knowledge” in question.

40. And even more so, given that the Claimant (/initiating litigant) has beenduring much of the last few years severely mentally incapacitated to nearnon-functionality by the very same Defendants’ fault. Indeed for much of the time might reasonably be considered to have had a status of legalincapacity, such was his mental paralysis (as per Particulars Para 44(c)).Even this present document has taken him many days of struggle even now,when his obsessive countermeasures have brought considerable alleviation.

41. In this connection, please note (i) the 1926 testimony of Prof. Alfred Stock about the mental paralysis he experienced in his own dental mercury

poisoning and subsequent recovery, which can easily be found on theinternet by searching for Alfred Stock Birgit Calhoun; and (ii) thequotations below from pages 71-2 of Amalgam Illness by Andrew HallCutler (Exhibit RPC12) (which facts would in principle, if the whole of thissection were not superfluous anyway, have major relevance to theconsiderations of Limitation Act 1980 s.33(3)(a)).

But firstly note that this Claimant unlike Prof Stock et al. has had tosinglehandedly attempt to manage his household in poverty at the sametime as endlessly trying to persuade the Defendants to provide treatment

and meanwhile trying to keep himself (a bit) sane.“Mercury poisoned people also do not have as many hours in the daythat they are able to concentrate, pay attention and be active as otherpeople do. Thus a few minutes of unnecessary work on their healthcareis a greater burden on them than it is on other patients.”“Procrastination [or rather this Claimant would describe it as“indecision”] is a symptom of mercury poisoning. You will do it a lot.Learn all of the ways you can to defeat it [in my experience none] anduse them. Have your friends and family help with this too [somechance].” [p.72:] “How to keep your life together during treatment:

There will be a long period of time during which you just won’t be ableto get as much done as you would like. You are probably already

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behind in life because of this. Focus on catching up and keeping up!Don’t take any new things on! Do essential things and ignore the rest!”“For practical purposes you don’t have as much time in the day as otherpeople. So don’t take stuff on that “just takes a minute”. You don’t haveas many minutes to spare as other people do!” “Simplify life, avoidstress [so try starting a legal action as a litigant in person].”

And yet we are to believe that it would be so unfair on the patheticpowerless little Department of Health to have this Claimant persecutingthem three years too late?

The amalgam allegedly not having been placed by the Defendants

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

indeed not mentioned in the Particulars).43. It is irrelevant because even if all 19 amalgams had been placed by private

dentists, that placement would still have been caused by the Defendants’negligent advice which was given to and applicable to all dentistry in theUK rather than only NHS. This is evidenced in Exhibit RPC8.

44. It is additionally irrelevant because the original placement was only a smallpart of the causation of the injury. The failure to remove it, or even notifyanyone of the risk, in all the subsequent many years, was a larger part of thecausation, as the Claimant could otherwise have achieved a recovery byremoval and detoxification as experienced by many others victims.

45. It is anyway untrue as should have been apparent from the Claimants’registration with the (NHS) Dental Hospital for 23 years. Subsequent to theDental Hospital the Claimant has had only NHS treatment, from dentistDeborah Morse. And prior to the Dental Hospital the Claimant also onlyhad NHS treatment, by dentists in the towns local to his home. Though asthe Dental Notes from before the Hospital were not supplied to him even onsecond request, the records have presumably been mislaid. But in any case,if the Defendants really want to make a big issue of this irrelevant point,then the Claimant can provide witness statements from no less than six

other family members, attesting that the family of five children was toopoor to afford private treatment (and indeed the Claimant qualified for freeschool meals) and most certainly would not have had private dentistsinstalling nineteen amalgams while he was only a teenager.

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Conclusion

46. The Defendants’s Application seeks to make out ten damning flaws of theClaim, namely:(1) a reasonable body of expert opinion showing harmlessness;

(2) a deficiency of evidence of causation;(3) evidence of an alternative causation;.(4) lack of earlier reasonable opinion of harmfulness;(5) a lack of any pertinent advice from the Defendants;(6) public law immunity;(7) lack of duty of care;(8) 2004 or 2007 date of knowledge;(9) no good reason for disapplying of time-limit; and(10) the amalgam not being placed by the Defendants.

47. And yet it has here been shown that every one of those alleged flaws is

bogus, ten out of ten, 100% timewasting falsehood. Not a single one of themany sentences makes any valid challenge to the Claim. And we can onlysuppose that this is as powerful as their Defence (not yet filed, and nowoverdue) is going to get, else they would have raised a more sound pointhere already. It follows that it is the Defence that has(11) “poor prospects of success” rather than the Claim.

48. The Defendants’ Application for Summary Judgment or to Strike Out theClaim should therefore be recognised as entirely devoid of merit, unworthy,outrageously deceiving, and an abuse of the Court’s processes, and for these

reasons dismissed without a hearing unless they can provide written repre-sentations which clearly disprove the facts and evidence here submitted.

49. At the very least they should specify a maximum of two clear,unambiguous, fatal defects of the Claim which their application has raised.And it is already clear from the foregoing that they cannot.

STATEMENT OF TRUTH

I believe that the facts stated in this Application To Dismiss Application aretrue.

---------------------------------------------------------------SignedRobin Philip ClarkeClaimant

Dated

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ROBIN PHILIP CLARKE

Claimantand




EXHIBITS: RPC1: “Pro-Amalgam Report Withdrawn”

http://iaomt.org/news/archive.asp?intReleaseID=357&month=1&year=2011 RPC2: Complaint about WHO 2009 from Mercury Policy Project

RPC3: Complaint about WHO 2009 from Associazione Malattie daIntossicazione Cronica e/o Ambiente – Italy

RPC4: Complaint about FDA 2009 from Consumers for Dental Choice

RPC5: Mutter J, Journal of Occupational Medicine and Toxicology 2011

RPC6: Mats Hanson critique of SCENIHR

RPC7: Letter from Dr Whittington in 1977 (=KH7)

RPC8: Advice from CDO to dentists, 1998

RPC9: Email from Claimant to Dental Hospital, 2004 (=KH8)

RPC10: Letter from Claimant to CMO, January 2007 (=KH9)

RPC11: US Court of Appeal decision, Cloer v Secretary of Health, 2010

RPC12: Pages 71-72 of Amalgam Illness by Andrew Hall Cutler

http://iaomt.org/news/archive.asp?intReleaseID=357&month=1&year=2011

http://iaomt.org/news/archive.asp?intReleaseID=357&month=1&year=2011



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ROBIN PHILIP CLARKEClaimant

and




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