Newman's
Lawyers To File Appeal On Cancer Suit
RCR Wireless News
Journalist: Jeffrey Silva
January 20, 2003
Health litigation enters a new phase this week as lawyers for Christopher
Newman file the opening brief with a Richmond federal appeals court in their
challenge of U.S. District Judge Catherine Blake's dismissal last year of an
$800 million cancer lawsuit against Motorola Inc.
Newman, a 42-year-old neurologist forced out of work after being diagnosed
with brain cancer in March 1998, is represented by the firm of high-profile
trial lawyer and Baltimore Orioles owner Peter Angelos. Newman contends
cell-phone use caused his brain cancer.
Blake dismissed the lawsuit Oct. 31 after ruling Newman failed to offer
sufficient scientific evidence to justify sending the case to trial. Over
the course of a five-day hearing last February, each side offered up
scientists and experts, who provided conflicting testimony on the question
of whether Newman's cell phone led to his brain tumor.
Today, there are 140 million mobile-phone subscribers. Industry and various
scientists insist radiation from handsets is too weak to break chemical
bonds and therefore cannot cause biological damage. Critics point to
research showing DNA breaks, genetic damage, memory impairment and effects
they contend are caused by non-heating mechanisms.
At least one federal department, the Environmental Protection Agency, last
September said there is "continued scientific uncertainty regarding the
existence of possible non-thermal effects" from mobile-phone radiation and
that it supports further research. European and Asian countries have
research programs, and there are several studies are in progress in the
United States.
The Blake ruling was a huge victory for the mobile-phone industry, which has
been dogged by the cancer issue for a decade and faced the prospect of being
hit with an avalanche of new lawsuits had the Newman case gone to a jury.
Last fall's decision came at a time when wireless carriers and manufacturers
were being pulverized by Wall Street and feeling the squeeze of an economy
that struggles to overcome the overhang of a possible war with Iraq,
lackluster corporate earnings, heavy debt and soft consumer demand.
"Judge Blake delivered a rather powerful decision in that case that should
be difficult to challenge on appeal," said Norm Sandler, director of global
strategic issues at Motorola.
Though health litigation barely has a pulse, industry is not completely out
of the woods. Nine brain-cancer lawsuits-six of which were transferred to
Blake in December by the Judicial Panel on Multidistrict Litigation-remain.
In addition, a cancer lawsuit against
industry in a Nevada state court is still alive and at least two workers'
compensation cases filed by former mobile-phone employees are pending.
Of immediate concern to industry is whether Blake dismisses a handful of
class-action lawsuits that claim industry failed to disclose to consumers
that mobile-phone radiation could cause biological damage, undercutting
their ability to decide, for example, whether to purchase a headset or even
a cell phone.
The headset cases are ripe for a ruling.
A Newman attorney declined to comment on a strategy to be employed in the
U.S. Court of Appeals for the Fourth Circuit, viewed as one of the most
conservative federal benches in the country. The Newman brief should be
filed Tuesday. Motorola's brief is expected to be filed some 30 days later.
Newman could file a response to the appellee's brief if it chooses two weeks
afterward.
Even before briefs are filed, there is a dispute over exactly which firms
are part of Newman's appeal. In December filings with the court, No. 1
mobile-phone carrier Verizon Wireless Inc. and its parent company, Verizon
Communications Inc., asserted they are not adverse parties in the appeal
because Blake dismissed them as defendants. Likewise, SBC Communications
Inc., co-owner of Cingular Wireless L.L.C., said it should not be a party to
the appeal because it too was dismissed by Blake as a defendant in the
Newman lawsuit.
At a minimum, Newman's lawyers are expected to argue that Blake abused her
discretion in excluding their side's expert testimony while accepting that
of the defendants. That could be tough. The 1993 Supreme Court standard for
scientific testimony sets up federal judges as gatekeepers for evidence and
accords them broad leeway insofar as admitting or dismissing evidence.
Also up for challenge on appeal is Blake's refusal to certify Nationwide
Motor Sales Corp. as a defendant in the lawsuit. Had Blake done so, Newman
presumably would have had grounds to get the case sent back to state court.
Nationwide is a Maryland company that sold Newman his cell phone.