Supreme Court Ruling May Impact Cell Phone Health Lawsuits
RCR Wireless News
Journalist: Jeffrey Silva
July 14, 2003

A Supreme Court ruling has thrown into question whether brain cancer and health-related consumer lawsuits currently pending in federal court should be sent back to state court, a venue mobile-phone carriers and equipment manufacturers have managed to largely avoid to date.

In health lawsuits, scientific evidence is critical. But so is jurisdiction. Industry has put together a string of victories in court cases by making persuasive scientific arguments and removing state lawsuits to federal court, which has proved legally advantageous to lawyers defending wireless firms.

The dynamics of health litigation could drastically change if the wireless industry cannot keep the cases in federal court. The chances of wireless health lawsuits returning to state courts, however, appear relatively small. But such a scenario remains a possibility. All pending wireless health lawsuits, except for one in Las Vegas, reside in one federal court or another.

At a minimum, the immediate impact of the high court's June 2 ruling in Beneficial National Bank v. Anderson could be to freeze for months proceedings-including consideration of scientific evidence on medical causation-in nine brain cancer lawsuits against industry overseen by U.S. District Judge Catherine Blake in Baltimore.

Blake is poised to rule on pending motions to remand the nine lawsuits to various state courts where they were first filed.

Blake solicited comment June 6 on whether to halt further action in the nine brain cancer lawsuits until a federal appeals court in Richmond, Va., rules on health-related litigation involving issues of jurisdiction.

Blake's previously strongly held wireless health claims give rise to a federal question that does not belong in state court, saying some lawsuits "amounted to a disguised attack on the validity and sufficiency of federal safety regulations regarding cell phones."

Indeed, in addition to the nine cancer cases in Blake's court, the ruling also has implications for five class-action lawsuits dismissed by Blake in March and on appeal in federal circuit court in Richmond, Va.

The class actions on appeal, originally filed in state court, see damages on the theory that wireless carriers should have warned consumers about potential health risks from mobile phones and supplied them with headsets to protect against possible radiation injury.

The plaintiffs' opening brief in the headset cases was to have been filed today, but the court granted an extension to Aug. 1.

The 4th U.S. Circuit Court of Appeals in Richmond is also entertaining the $800 million lawsuit that began in a Maryland state court before being transferred to Blake, who dismissed the suit for lack of scientific evidence last fall. Oral argument in the case is set for September.

Beneficial involves a lawsuit filed in state court against a national bank by parties who argued interest rates on loans from the bank were excessive and violated the common law usury doctrine. Bank lawyers had the lawsuit moved from state court to federal court. A federal court rejected a motion to remand the case to state court. But the 11th U.S. Court of Appeals reversed, ruling the lawsuit was improperly moved from state court to federal court.

A Supreme Court majority (7-2) thought otherwise and ruled "the cause of action arose only under federal law and could, therefore, be removed" to federal court.

Both plaintiffs and industry defendants in wireless health lawsuits said the Supreme Court's decision in Beneficial favor them on the jurisdictional issue.

"The complaints in these actions ... not only conflict with federal law, but also intrude directly on a limited field-the technical aspects of radio transmission and the regulatory of RF [radio-frequency] emissions from licensed radio equipment-governed exclusively and pre-empted completely by federal law. The complaints thus trigger not only the blocking effect of ordinary pre-emption, but also the displacing effect that the Beneficial court recognized is the essence of complete pre-emption," wireless firms stated in a June 20 letter to Blake.

Industry lawyers told Blake they favor a stay of proceedings in the nine brain cancer cases before her until the 4th Circuit rules on the headset appeal.

Lawyers for Sarah Dahlgren, one of nine plaintiffs in brain cancer lawsuits before Blake, have a different take on the Supreme Court ruling in Beneficial.

"Unlike the non-existent state usury claims asserted in Beneficial, the statue cited by defendants in Dahlgren as the basis for federal question jurisdiction (the Federal Communications Act), provides neither a prescribed remedy for the damages alleged in the Dahlgren complaint or any ordained procedure for obtaining relief. Indeed, far from implying complete pre-emption, the FCA contains a savings clause that expressly preserves state law causes of action such as those contained in the Dahlgren complaint," stated Dahlgren's attorneys. The lawyers oppose delaying the case.

In a blistering dissenting opinion penned by Supreme Court Judge Antonin Scalia, in which Judge Clarence Thomas joined, Scalia stated: "The proper response to the presentation of a nonexistent claim to a state court is dismissal, not the `federalize-and-remove' dance authorized by today's opinion.".