Brain Cancer Lawsuit Consolidation Under Fire
RCR Wireless News
Journalist: Jeffrey Silva
August 26, 2002
A legal brawl has erupted over cellular industry efforts to steer nearly all
health-related lawsuits to Baltimore federal judge Catherine Blake, who is
on the verge of making a ruling that could either sink all the suits in one
fell swoop or possibly subject mobile-phone firms to years of costly
litigation.
Late last month, the Judicial Panel on Multidistrict Litigation sent another
group of mobile-phone-cancer lawsuits to Blake in response to a request by
wireless industry lawyers.
"It is a matter of efficiency and judicial economy," said Curtis Renner, a
lawyer representing SBC Communications Inc.
Last year, the MDL transferred five class-action suits-which seek to force
mobile-phone operators to supply consumers with hands-free headsets-to
Blake. In June, Blake denied the plaintiffs' request to remand the headset
cases back to state courts. (Aegis Note: Click
here for
information explaining why headsets are not safe).
All told, Blake now oversees 10 brain cancer suits and five-class action
headset suits. The only brain-cancer suit not controlled by Blake is pending
in a Nevada state court. The lawsuits to varying degrees name as defendants
the nation's top wireless carriers and manufacturers as well as top trade
associations and industry standard-setting bodies.
Industry lawyers appear willing to roll the dice with Blake in hopes she
will make all the health suits disappear if she decides to block from going
to trial an $800,000 cancer lawsuit filed two years ago by Baltimore
neurologist Christopher Newman. It could end up being a brilliant legal
strategy if Blake rules in industry's favor.
But the tack could backfire badly if Blake agrees to let the Newman case go
forward, a situation that would improve the chance of success for existing
suits and possibly open the floodgates to more litigation.
Still, industry lawyers, having already secured a favorable Blake ruling on
jurisdiction in the headset litigation, stand ready to bet the house on a
judge they view as intelligent, thorough, fair and-they hope-in agreement
with their legal arguments.
Of all the challenges faced today by the mobile-phone industry-heavy debt
and falling stock prices to name just a couple-none is as potentially
threatening as the unsettled health issue.
Six of the lawsuits sent by the MDL to Blake last month were filed by
individuals who allege mobile-phone use caused their brain cancers.
Plaintiffs' lawyers are trying to get the six cases moved back to the
Superior Court of the District of Columbia. Before prompting the MDL to send
the various cases to Blake in Baltimore, industry lawyers had the six cases
moved to D.C. federal court.
Lawyers for the six cancer victims have petitioned the MDL for a hearing to
challenge the consolidation of cases in Blake's court.
"The D.C. defendants' tactics of stonewalling and delay are extremely
prejudicial to the D.C. plaintiffs, who suffer from terminal illnesses
related to their injuries and simply cannot afford any more delays," said
Mayer Morganroth, one of the lawyers representing the six people, in an Aug.
16 filing with the MDL.
"Indeed," added Morganroth, "the effect of such consolidation would
essentially foreclose any possibility of the D.C. plaintiffs' having their
day in court while still alive."
On Aug. 15, industry lawyers petitioned Blake to dismiss all five
class-action headset cases and a cancer lawsuit filed by California's Gibb
Brower. Industry's motion will be briefed in coming weeks and months. Blake
has scheduled oral argument for Brower on Sept. 16 and for the headset cases
on Nov. 1.
Further fueling the controversy, which caught fire in the early 1990s, are
two newly published studies with vastly different findings on health
implications of mobile-phone use and a July letter by the Environmental
Protection Agency. The EPA letter suggests the existing radiation safety
standard for mobile phones may be insufficient because it does not protect
against nonthermal effects of wireless handsets.
One study by Dr. Lennart Hardell, a Swedish epidemiologist and the key
expert witness for Newman, found an increased risk of brain tumors on the
side of the head used by subscribers to make and receive cellular telephone
calls. The research paper is published in the August issue of the European
Journal of Cancer Prevention. Industry lawyers attacked Hardell's findings
during a five-day hearing in February in Baltimore.
Another study-conducted by Australian researchers and published in the
September issue of Radiation Research-failed to link long-term exposure of
mobile-phone radiation to increased lymphomas in lab mice. The purpose of
the experiment was determine whether findings of a 1997 Australian study-led
by Dr. Michael Repacholi-could be replicated. Repacholi's study yielded a
two-fold increase in lymphoma in mice exposed for 18 months to mobile-phone
transmissions.
The wireless industry took exception to the EPA letter, penned by Norbert
Hankin of the agency's Radiation Protection Division.
"I think Mr. Hankin's letter is at odds with previous statements by
high-ranking officials at EPA, which in letters to other agencies have made
clear EPA's support for the RF [radio-frequency] exposure guidelines," said
Jo-Anne Basile, vice president of external and industry relations at the
Cellular Telecommunications & Internet Association.
Sources said the Institute of Electrical and Electronics Engineers-a
defendant in several suits and the organization responsible for developing
mobile-phone radiation limits-is drafting a response to the Hankin letter.
The FCC's radiation safety standard for mobile phones has been upheld by the
courts in recent years.
Basile also said CTIA is soliciting proposals for the second phase of
research funded by the trade group and administered by the Food and Drug
Administration. The research will deal with developing better measurement
tools for epidemiology studies.