Buffalo, N.Y. (WBEN) - For more than two years now, a lawsuit between the City of Buffalo and city residents has been working its way through the court system over the lack of fluoride in the city's drinking water.
This class action complaint, at the time, was seeking an order compelling the city to immediately re-commence fluoridation of the water, and an order compelling all defendants to create free dental clinics for those harmed by the lack of fluoridation. In addition, the plaintiffs in the case were seeking an amount to exceed $160 million in damages.
Since the start of this lawsuit, the city has slowly reintroduced fluoride into the city's water supply starting in September 2024. Despite that, attorney Robert Corp with Lipsitz Green Scime Cambria LLP has said it still doesn't change the damages caused to the residents of the city.
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More than 10 months after fluoride was reintroduced to the drinking water in Buffalo, the city is motioning for this case to be dismissed by the judge presiding over it, while Corp is still seeking the justice for residents in this lawsuit, as it makes its way through the federal court system.
"We have filed an amended complaint that's aligned with federal pleading standards," said Corp in an interview with WBEN. "Some time ago, the defendants filed some motion practice, asking the court to dismiss the case, primarily on the basis of the idea that did actually disclose, they argue, that they had stopped fluoridating the water back in 2015. Their argument effectively was since they had provided notice, everyone knew there was no fluoridating the water, there's nothing to complain about. We oppose those papers vigorously."
According to Corp, the City of Buffalo failed to make clear to the residents of Buffalo that the water no longer included the therapeutic levels of fluoride that was being represented as being in the water.
"There's a concept in the law of what was the dominant impression of the communication and marketing materials that were sent out. And in our complaint and in our opposition papers, we lay out the fact that for many years, the defendants were sending out these water quality reports and publishing on BuffaloWater.com diagrams that reflect that there's still fluoride being inserted into the water as late as 2021, 2022. And affirmative statements stating Buffalo is one of the waterways in New York State that does include the level of fluoride that is helpful for dental purposes, and they do actively monitor Buffalo's water to ensure it has the recommended levels of fluoride within the water. Then after saying all those things do, in fact, happen, they include a sentence that says, 'As of 2015, we haven't been including fluoride in the water,'" Corp noted.
Corp says nowhere in any disclosure and in any report did Buffalo or Veolia Environmental Services ever state the water no longer included that therapeutic level of fluoride. Instead, just the opposite.
"Anyone who reviewed that material would come away with the impression that, in fact, water continued to have insufficient levels of fluoride. I think the most powerful evidence for that reality was in the reaction community-wide when the disclosure came out that there was no fluoride in the water," Corp said. "We saw the mayor [Byron Brown] have an emergency press conference. We saw the Common Council rush for meetings and write strongly-written demand letters for information. And probably most importantly, we saw leaders from UB Dental School and the local dental societies and pediatric dentists, loudly and with shock, come out and complain, and demand that this issue was fixed."
Corp believes his team has some powerful arguments, along with a couple of a nuanced and sophisticated legal issues at play that they hope should allow this case to move on to the next phase, which would be discovery, and trying to get this class certified.
From here, Corp says the court made clear from the bench it could use some supplemental briefing, which his team is in the process of drafting right now. He suspects the court will put out a lengthy, well-reasoned opinion that deals with some of the thorny legal issues, but it will probably take some time.
"The judge promised to get it out quickly, and I suspect it will be coming in the next few months. After that, assuming we prevail and we're hoping that we should and believe that we should, this would move on to discovery," Corp explained. "We can learn more about why, in fact, Buffalo made the shocking decision to stop fluoridating the water, and what was going on for those nine or 10 years, and we can further develop and understand what the impact that had across the community, and develop those facts. And eventually we get class certified, meaning the court recognizes that all hundreds of thousands of residents of Buffalo since 2015 have been injured by that lack of fluoride. And from there, we go forward. Eventually get a trial date and have the injustice and damage to the community rectified."
Meanwhile, Fillmore District Councilman Mitch Nowakowski believes from what he has heard and seen from court filings, the complainant had kept moving the goal posts in their argument, weakening their ability to perform in court. That's why he believes this case will eventually be dismissed.
"If our attorneys are moving to dismiss, then they're saying there's no merit to the case. And from what I know so far, the other side kept moving the bar of what their original complaint was. So that deviation from their original complaint so far into a lawsuit, I think that their move is to question the merit and the validity of their argument in court," said Nowakowski with WBEN.
The city recently said the suspension of the fluoride treatment was disclosed in plain language in every annual report for the years the residents cite in the lawsuit. However, when the news was originally reported back in 2023, it seemed like members of the Common Council and others in city government were caught off guard by the news.
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While this may challenge the city's motion for the judge to dismiss the case, the way Nowakowski looks at this is the division between functionality of a legal threshold.
"The city is going into court saying this wasn't public documents, this was for public consumption. Public members could consume this, but Council members said, 'Look, this just isn't functional with the sheer amount of information that comes to us unless it's widely on a bill, or if it's clocked in and you're talking about it in committee, we wouldn't know about it.' So I think that in court, the city is going to make the position that we met the legal threshold, this was printed here, here and here, open for public consumption. And then the Council members will say, 'OK, you may have met the legal threshold. But next time, you have to make sure that this is public and clearly attainable in a functional standpoint. Can you actually see this?'" Nowakowski explained. "The amount of fine print that I look at in a day is a lot, but I'm assuming they're going to court to state that it doesn't meet the legal threshold."
If the court is able to determine the lawsuit does not have any merit to it, Nowakowski is hoping it will be a quick dismissal from the judge. He understands the city cannot afford to be keeping attorneys fees and claims for cases such as this.
"I'm a member of the Common Council, I get sued because I don't have the right suit on, or because someone doesn't like the scrutiny of my application. And people don't realize that that comes at a serious cost to the municipality," he said. "People are allowed their due process and their day in court, but if the city is saying, 'This motion has kept on morphing and changing in their arguments,' we're wasting a sheer amount of city resources on a court case that's just not cutting the mustard. Hopefully it's expeditious, and we wrap this up and come to some determination."