Plaintiff Seeks to Reopen FDA’s Dental Mercury Settlement

The FDA may have to classify dental mercury sooner than July 2009 if a plaintiff in a settlement with the agency gets her way.

The recent settlement requiring the FDA to classify the product by next summer is on shaky ground because one plaintiff, dental assistant Karen Palmer, says she did not agree to the terms. Palmer wants dental mercury removed from the market and a shorter timeline set for classification.

She has filed a motion in the U.S. District Court for the District of Columbia to remove herself from the settlement and resume her claims against the agency. According to the motion, a client is not bound by a settlement when the client did not give an attorney authority to settle the case.

If Palmer had received notice of the settlement before it was reached, she would not have agreed to its terms, the motion states. “Ms. Palmer would have agreed to no more than three months for the completion of the classification process,” her motion says.

Plaintiffs in the original lawsuit, Moms Against Mercury et al v. Eschenbach et al, included nonprofit corporations, public officials and individuals seeking the removal of encapsulated mercury amalgam from the market. The plaintiffs also requested that the FDA be ordered to classify the product. The settlement required the FDA to classify encapsulated amalgam alloy and dental mercury by July 28, 2009, and post specific statements on its website.

Palmer’s lawyer said her motion likely will not be decided for at least a month. It also is up in the air, he said, whether the FDA would maintain its settlement terms with the other plaintiffs if Palmer’s motion were granted. He added that although there is only one such motion at this time, there may be others in the future.