KERGER AMALGAM LAWSUIT GAINS TRACTION - WILL ADA’S CONDUCT BE UN-INSURED?
By Leo Cashman
A personal injury lawsuit against them by Jessica Kerger, an Ohio woman, and her family is gaining traction in the courtroom. Judge Nancy A. Fuerst has denied a detailed “motion to dismiss” by the defendants, two dental amalgam manufacturers, the American Dental Association (ADA) and the Ohio Dental Association (ODA). In her complaint, Jessica Kerger alleges that she has suffered neurological deficits and hormonal function problems relating to mercury from her dental amalgam fillings. In 2004, Kerger sued amalgam makers and the ADA and ODA for personal injuries resulting in serious disability. Some parts of the Kerger complaint were dismissed by the court, but key claims were not dismissed, including “fraud, misrepresentation and negligent claims to a third party.”
“The stuff that really matters stayed in,” Jessica Kerger said. The ADA has petitioned Judge Fuerst to clarify her ruling and say why she kept the key charges in court.
Meanwhile another court will have to determine whether the ADA has any insurance coverage in the Kerger case. The ADA’s former insurer, Federal Insurance Company, has sued the ADA charging that any ADA conduct that would have hurt Jessica Kerger (e.g., caused her to mercury poisoned by dental amalgams) was deliberate and intentional and therefore not covered by its insurance policies with Federal (Federal Insurance provided insurance coverage for ADA from 1965 until January 1, 2000)… The ADA has been the industry’s biggest defender of the dental amalgam (mercury) filling, even going so far as to hold that it is “unethical” for a dentist to replace an amalgam filling out of concern for the toxicity of mercury. It has also obtained revenue for giving its Seal of Approval for the amalgam product sold by the various dental material manufacturers. Without Federal Insurance by its side, ADA would have to be on its own for its defense in the Jessica Kerger case and would be on its own to absorb potentially huge liability lawsuit damages in the Kerger case and other like it.
Federal Insurance Company, established in 1901, is a division of the Chubb Group of Insurance Companies, one of the world’s top global insurance companies. Chubb has over 100 offices, in 30 countries. Even by itself, Federal itself has over $23 billion in assets and a net worth close to $8 billion. If it is now taking an adversarial role towards the ADA and its conduct regarding amalgam, it appears to have the lawyers and the deep pockets to press its case.