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Blake Sends Brain-Cancer Suits To State Court
RCR Wireless News
Journalist: Jeffrey Silva
July 20, 2004

In a stunning turnabout, U.S. District Judge Catherine Blake ruled six brain-cancer suits against the mobile-phone industry do not belong in federal court and remanded the cases to state court here.

Until Monday’s ruling, the Baltimore federal judge had consistently ruled in industry’s favor in wireless health litigation on substantive legal and scientific issues. In particular, Blake has given significant weight to industry arguments that mobile-phone cancer suits are pre-empted by federal law.

Plaintiffs in the six brain cancer suits are seeking hundreds of millions of dollars in damages. Lead defendants in the suits include Motorola Inc., Matsushita Electric Inc., Audiovox Corp., Nokia Corp. and Qualcomm Inc. The plaintiffs are represented by Morganroth & Morganroth, a Detroit law firm that has taken on high-profile clients such as John DeLorean and Dr. Jack Kevorkian.

“We are pleased with the remand decision and certainly look forward to moving the cases to the next stage,” said Jeffrey Morganroth.

The six suits were filed in the Superior Court for the District of Columbia in 2001. The suits were subsequently moved to the U.S. District Court for the District of Columbia and assigned to Judge Thomas Penfield Jackson. Later, the Morganroth actions and other cancer suits against industry were consolidated and assigned to Blake in Baltimore federal court.

In a 26-page ruling, Blake sought to differentiate her previous support for industry’s federal pre-emption argument in headset litigation from Monday’s decision to return six brain cancer suits to the D.C. Superior Court.

“While the [headset] plaintiffs’ requests for relief were focused on the provision of headsets for use with the cell phones, the Morganroth plaintiffs seek compensatory and consequential damages for the lead plaintiffs’ brain injuries,” stated Blake.

In January, Blake approved a request to withdraw a lawsuit filed by Atlanta's Brian Barrett against Nokia Corp. and others. Barrett, who died in November 2002, alleged mobile-phone use caused his brain tumor.

One of Morganroth’s clients, former Motorola technician Michael Murry, died in April 2003.

Blake apparently struggled with the ruling. “The gravamen of the Morganroth complaints is that federal safety regulations governing wireless cell phones permit the sale of a product that is unreasonably dangerous to consumers,” she wrote. “In many respects the arguments in favor of exercising [federal] jurisdiction over the complaints are just as strong as in the [headset] actions. The Morganroth complaints involve distinguishable facts, however, requiring remand to state court.”

Blake’s latest ruling comes at a time when the cell phone industry appeared to have regained control of the combustible health issue.

“Changing the venue doesn't change the facts. The claim at issue in these cases has been considered by scientific experts, public health authorities, government agencies and the courts on numerous occasions. All have concluded that the allegation has no credible scientific basis. We do not expect the lawyers bringing these cases to turn science on its head,” said Norm Sandler, director of global strategic issues at Motorola.

In 2002, Blake threw out an $800 million brain cancer lawsuit against Motorola Inc. and others, concluding scientific evidence offered by lawyers for Christopher Newman was not strong enough to send the case to trial. The 4th U.S. Circuit Court of Appeals affirmed the Newman dismissal last year.

The Newman suit began in Maryland state court, but industry lawyers moved the litigation to federal court. The law firm of Baltimore Orioles owner Peter Angelos, which represented Newman, failed to persuade Blake to remand that case to state court.

The 4th Circuit, in Richmond, Va., is considering an appeal of Blake’s 2003 dismissal of five class-action wireless product liability suits. In that litigation, plaintiffs sued to force carriers to supply consumers with headsets to reduce exposure to phone radiation.

Blake previously hinted that she might await the 4th Circuit’s ruling on the federal pre-emption question before deciding whether to send the brain-cancer lawsuits pending before her back to state court.

The courts have upheld mobile-phone radiation guidelines used by the Federal Communications Commission. Government health officials here and overseas say research does not point to health risks from mobile phones, but they stop short of guaranteeing their safety. Research, much of it sponsored by cell-phone companies, is being conducted in the United States, Europe and Asia.

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