Hogan v. Maryland State Dental Ass'n

JAMES R. EYLER, Judge. The question presented by this appeal is whether dental patients who, at any time, received dental fillings containing mercury have stated a legally cognizable claim against the State professional association for dentists for (1) violation of the Maryland Consumer Protection Act and (2) fraud. We answer that question in the negative, and therefore, we shall affirm the judgment of the circuit court. Facts On February 21, 2002, Lisa Hogan, one of two appellants, filed a complaint in the Circuit Court for Baltimore City against The American Dental Association (ADA) and the Maryland State Dental Association, Inc., appellee.

The complaint was filed as a class action on behalf of all Maryland residents who, at any time, received dental fillings containing mercury. Hogan alleged that the defendants, professional ⁵⁶⁰ associations for dentists, deceived consumers by concealing the health risk of implanted dental fillings that contained toxic mercury. In count one, she alleged unfair and deceptive trade practices under the Maryland Consumer Protection Act, Md. Code Commercial Law Sections 13-101, et. seq. (1975, 2000 Repl.Vol.) 1 and in count two, she alleged fraud.

She claimed as damages the cost of removing dental fillings containing mercury and also sought to enjoin the practices complained of in the complaint. The defendants filed motions to dismiss asserting, inter alia, failure to state a claim and improper venue. On June 7, 2002, appellant filed an amended complaint. On June 25, 2002, the case was transferred to the Circuit Court for Baltimore County.

The defendants again filed motions to dismiss, again asserting, inter alia, failure to state a claim. On or about September 24, 2002, a second amended complaint was filed adding Victoria Bolton, the other appellant, as a plaintiff. The second amended complaint is the operative complaint. Appellee and the ADA again filed motions to dismiss, asserting, inter alia, that the complaint failed to state a claim.

By opinion and order dated April 18, 2003, the circuit court dismissed appellants’ second amended complaint as to appellee for failure to state a claim. The circuit court also granted the ADA’s motion to dismiss on the basis that the court had no jurisdiction over it. Appellants do not challenge the latter ruling. On appeal, appellants contend the circuit court erred in granting appellee’s motion to dismiss.

The Baltimore County Dental Association and the Arizona Dental Association have filed an amicus brief in support of appellee’s position. The International Academy of Oral Medicine and Toxicology, the American Academy of Biological Dentistry, and the Holistic Dental Association have filed an amicus brief in support of ⁵⁶¹ appellants’ position. We shall affirm the judgment of the circuit court. Standard of Review In considering a motion to dismiss, the trial court must assume the truth of all well pleaded relevant and material factual allegations in the complaint as well as any reasonable inferences that might be drawn from those allegations.

Allied Inv. Corp. v. Jasen, 354 Md. 547, 555 , 731 A.2d 957 (1999) (citations omitted). Dismissal of a complaint is proper when the alleged facts and reasonable inferences, if proven, would fail to afford relief to the plaintiff. Bobo v. State, 346 Md. 706, 709 , 697 A.2d 1371 (1997); Morris v. Osmose Wood Preserving, 340 Md. 519, 531 , 667 A.2d 624 (1995).

In reviewing an order granting a motion to dismiss, this Court must determine whether the trial court was legally correct. Fioretti v. Maryland State Bd. of Dental Examiners, 351 Md. 66, 71 , 716 A.2d 258 (1998) (citations omitted). This court shall uphold the trial court’s ruling only “when the complaint does not disclose, on its face, a legally sufficient cause of action.” Campbell v. Cushwa, 133 Md.App. 519, 534 , 758 A.2d 616 (2000) (citing Hrehorovich v. Harbor Hosp. Ctr., Inc., 93 Md.App. 772, 785 , 614 A.2d 1021 (1992)).

All facts and allegations must be viewed in the light most favorable to the non-moving party. See Shoemaker v. Smith, 353 Md. 143, 167 , 725 A.2d 549 (1999). Discussion Consumer Protection Act Appellants contend appellee is engaged in unfair and deceptive trade practices in violation of the Maryland Consumer Protection Act. The underlying premise of appellants’ complaint is that mercury and mercury compounds are highly toxic to the human body and mercury vapors emitted from dental fillings cause a number of health risks.

Most of appellants’ allegations are directed at the ADA, but they also allege that appellee is a “constituent state association ⁵⁶² of the ADA” and follows rules and practices of the ADA. Appellants allege that (1) appellee does not warn about the toxicity of mercury, including a failure to warn in written materials disseminated in Maryland, (2) appellee, in conjunction with the ADA, has suppressed information through the ADA Seal of Acceptance Program, and (3) appellee, in conjunction with the ADA, has suppressed information through ethical codes. With respect to (1), appellants allege that appellee has taken the position that scientific research has not established that dental fillings containing mercury are a health hazard and has attempted to conceal the actual danger. With respect to (2), appellants allege that, when the ADA gives a product its Seal of Acceptance, it means it meets ADA requirements for safety and effectiveness and the manufacturer’s claims are accurate.

According to appellants, approximately 1,300 products carry the Seal of Acceptance. Some of these products are sold to consumers, and the rest are prescribed or used by dentists. Appellants allege that several manufacturers of fillings containing mercury have received the Seal of Acceptance. With respect to (3), appellants allege that the ADA code of ethics provides that it is unethical for a dentist to remove a filling containing mercury from a non-allergic patient, for the alleged purpose of removing a toxic substance, when it is done solely at the suggestion of the dentist.

Interpreting the complaint in the light most favorable to appellants, it demonstrates, at most, the existence of a dispute in the scientific community as to whether dental fillings containing mercury pose a health risk. The dispute is well known. Appellants allege that “literally hundreds of peer-reviewed scientific studies” have concluded that dental fillings containing mercury “pose a significant risk of harm to individuals.” The Maryland Consumer Protection Act was not intended to impose liability in factual situations such as the one before us. Specifically, in the words of the statute, appellant is not a “merchant” under Commercial Law, section 13 — 101(g), and ⁵⁶³ dental fillings are not “consumer goods” under Commercial Law, section 13-101 (d).

Additionally, the facts alleged come within an express exemption in the Act applicable to the professional services of a “dental practitioner.” Section 13-104(1). The Maryland Consumer Protection Act was enacted by the General Assembly in response to “mounting concern over the increase of deceptive practices in connection with sales of merchandise, real property, and services and the extension of credit.” Section 13-102(a)(.l). The Act allows consumers to recover from persons who engage in deceptive trade practices related to the sale or offering for sale of consumer goods, consumer realty, or consumer services; the extension of consumer credit; or the collection of consumer debts. Section 13-303; Consumer Protection Div. v. Outdoor World Corp., 91 Md.App. 275, 288 , 603 A.2d 1376 (1992).

Appellee Is Not A “Person” Or A “Merchant” Under The Act Because It Did Not Sell Or Offer To Sell Section 13-303 states that a “person” who offers to sell or sells consumer goods may not engage in deceptive trade practices related to that offer or sale. A “person” is a “merchant” because section 13-101(g) defines “merchant” as one who “directly or indirectly either offers or makes available to consumers any consumer goods.... ” We hold that appellee, based on the allegations in the complaint, is not a “person”/”merchant” within the meaning of the Act because it did not sell or offer to sell. This holding is in accord with the decision in Newman v. Motorola, Inc., wherein the plaintiffs sought damages for personal injuries, allegedly caused by the use of cellular telephones, from the defendant Cellular Telecommunications Industry Association, a trade