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.