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Health Lawsuit Charging Consumer Fraud Linked To Brain Cancer Litigation
RCR Wireless News
Journalist: Jeffrey Silva
May 22, 2008

Despite being less of a target in recent years, the cellphone industry remains entangled in health-related litigation that could turn on how the District of Columbia Court of Appeals rules on a challenge to a lower court’s dismissal of six brain-cancer lawsuits last year.

In March, Judge Brook Hedge of the Superior Court of the District Columbia put on hold — pending an appeals court ruling involving the six brain-cancer lawsuits in Murray et al. v. Motorola Inc. et al. — a separate class-action lawsuit against the wireless industry that was approaching a key stage. The suit, Sarah Dahlgren (on behalf of herself and others similarly situated) v. Audiovox Communications Corp. et al., is based on consumer fraud, not personal injury. The litigation alleges mobile-phone companies failed to make consumers aware of possible health risks and the lack of consensus among scientists on cellphone safety.

In addition to Audiovox, others named as defendants are Motorola Inc., Nokia Corp., Ericsson Inc., Kyocera Wireless Corp., Qualcomm Inc., Samsung Telecommunications America and industry trade association CTIA.

“Issues that are fundamental to this case are currently on appeal in Murray v. Motorola,” said Hedge in March 5 order. “In the interest of judicial economy, the court will stay this case pending the outcome of Murray. Although dispositive motions have been filed, they will most likely become obsolete in terms of needing to be supplemented in light of Murray and recent Supreme Court cases with respect to pre-emption.”

As such, in a strictly procedural move, Hedge denied without prejudice wireless industry motions to dismiss the amended class-action complaint on federal pre-emption and other grounds. Hedge also froze in place activity related to plaintiff’s efforts to have the class certified.

“Although plaintiff tries to characterize her complaint as a consumer fraud action, this case is, at bottom, a product-liability action without any legally cognizable injury,” industry lawyers previously told the court in the Dahlgren case. The lawsuit was filed in 2002.

Meantime, briefing is complete in the Murray appeal and parties are awaiting a date for oral argument.

Last August, the Superior Court of the District of Columbia ruled the six brain-cancer lawsuits were pre-empted by federal law. In doing so, Judge Cheryl Long sided with the wireless industry and the Federal Communications Commission on the jurisdictional issue but departed from the legal analysis of a federal judge who has overseen major health-related cases.

U.S. District Judge Catherine Blake of Baltimore returned the six cases to the D.C. Superior Court in 2004, arguing the six brain-cancer lawsuits involved state law claims seeking damages for personal injury. Blake is the judge who tossed out an $800 million lawsuit against Motorola and others in 2002 because of a lack of reliable scientific evidence. Months later, in 2003, Blake rejected on federal pre-emption grounds a handful of class-action complaints that sought to force wireless carriers to supply subscribers with headsets to reduce radiation exposure and to compensate consumers who already purchased such devices. However, the 4th U.S. Circuit Court of Appeals overturned Blake in ruling the headset cases were not pre-empted by federal law. Nevertheless, despite the legal blow to the wireless industry, most of the class-action headset lawsuits fell by the wayside once they made it back to state courts.

Attorneys at the Morganroth & Morganroth P.L.L.C., who are handling the brain-cancers litigation pending before the D.C. Court of Appeals, said the D.C. Superior Court got it wrong and Blake had it right on the question of jurisdiction.

“The Superior Court’s holding that plaintiffs’ claims are pre-empted by federal law is directly belied by the clear and unambiguous language of the FCA [Federal Communications Act], which specifically permits plaintiffs to pursue state law remedies to redress the horrendous injuries they suffered as a result of their use of defendants’ dangerous products in reliance upon the defendants’ misrepresentations and warranties that the cellphones sold, and used by, them are safe,” stated Morganroth lawyers in their appellant brief.

While the mobile-phone industry has suffered legal setbacks on jurisdiction, it has yet to lose a health lawsuit based on scientific data since the brain-cancer controversy erupted in the early 1990s. The FCC’s guidelines governing human exposure to radio-frequency radiation emitted by phones and base stations have been upheld by U.S. federal courts.

Health officials here and overseas say research to date indicates mobile phones do not pose a health threat to users, which number more than 3 billion worldwide, but they support further scientific investigation in light of studies that have shown adverse biological effects from low-level radiation. Some European officials have recommended limiting cellphone use by children as a precautionary measure. Most wireless health research is being conducted in foreign countries.

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