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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.

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