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.