Aegis Corporation Home Page Back To Previous Page
Print This Page
Close Window

Cancer Case Hinges On Hardell Testimony
RCR Wireless News
Journalist: Jeffrey Silva
June 03, 2002

In the three months since the unprecedented hearing in an $800 million cell-phone cancer lawsuit and with a decision nearing on whether the Baltimore case goes to trial, plaintiff and defense lawyers have been battling behind the scenes over new developments that could shape the direction the high-stakes litigation takes next.

U.S. District Judge Catherine Blake, responding to a request last week from RCR Wireless News, released a series of letters she has received from lawyers on both sides since February's hearing on the admissibility of scientific experts.

Before last week, this latest round of jostling between lawyers over fresh information of a potentially decisive nature occurred out of the public eye. Indeed, lawyers picked up where they left off in open court, which was home for five days to bruising examination of scientific experts by industry lawyers and attorneys at the law firm of trial lawyer and Baltimore Orioles owner Peter Angelos. The Angelos firm represents 42-year-old Christopher Newman, who claims his analog cell phone caused his brain cancer.

Much is riding on Blake's ruling. Not only will the decision determine whether the case becomes the first to go to trial, but it likely will set a precedent for the nine or so cancer lawsuits pending against the mobile-phone industry and for others in the queue. Wall Street, already beating up on financially troubled wireless firms, is closely monitoring the case. Blake is expected to rule shortly.

A ruling against Newman would essentially doom the lawsuit and others like it. The industry would rid itself of the controversy for now, but likely not forever.

The letters largely focus on two matters, but actually one: Dr. Lennart Hardell of Sweden.

In an April 2 letter to Blake, Russell Smouse, representing Newman, called attention to the European Journal of Cancer Prevention's decision to publish one of Hardell's recent epidemiology studies. Hardell is the key expert witness for Newman, and by extension, a huge threat to industry.

Hardell's latest study identified a link between mobile-phone use and brain cancer, finding a higher incidence of tumors on the side of the head used by wireless subscribers to make and receive calls.

Industry lawyers responded in an April 15 letter to Blake, repeating criticisms of the Hardell study forcefully made at the February hearing. At that time, the defendants revealed The Lancet-a prestigious British scientific journal-twice rejected Hardell's manuscript. In the April 15 letter, industry lawyers said Oncology Research also turned away Hardell's manuscript. Hardell volunteered at the hearing that The Lancet rejects more than 90 percent of scientific papers submitted.

"For these reasons, and reasons identified in the defendants' briefs and presented at the Daubert hearing, this court should exclude Dr. Hardell's general and specific causation opinions," stated industry lawyers Jane Thorpe, Terrence Dee and Thomas Watson.

The Supreme Court in a 1993 decision-Daubert v. Merrell Dow Pharmaceuticals Inc.-made federal judges gatekeepers insofar as determining whether expert testimony is relevant and supported by methodology generally accepted in the scientific community.

The second subject of controversy involves a recently published Finnish epidemiology study on cell phones and cancer that had mixed results.

While the study-published in the May issue of the journal Epidemiology and partially funded by Finnish wireless firms-declared "no clear connection between use of cellular phones and risk of cancer," it included a finding familiar to Newman's lawyers and one that may have grabbed Blake's attention. There was a statistically significant association between analog phones and gliomas. Newman used an analog phone and his brain cancer is a glioma.

"Dr. Hardell relies upon the results of this study in support of his opinion in this case," said Smouse in an April 23 letter to Blake that was accompanied by the Finnish study. Smouse also said the results of the Finnish study back Hardell's most recent study findings.

In a May 3 letter to Blake, industry lawyers continued to pound away at Hardell. "Mr. Smouse's description of the article is incomplete and therefore inaccurate," they stated.

Industry lawyers noted that Finnish scientists themselves described the link between analog phones and gliomas as "a weak association" and that the researchers acknowledged limitations of their study.

During the Daubert testimony, Newman's attorneys entered into evidence various studies showing adverse health effects from mobile-phone radiation.

Industry lawyers, for their part, pointed to studies that failed to connect cell phones to cancer or other diseases. Their objective was to cast doubt on the validity of the plaintiff's experts and the methodology underlying the research. Blake's job is not to interpret or decide whether one side's science is better than the other's relative to Newman's claim. That would be a jury's call. At this point, Blake must decide only whether Newman's experts meet the Supreme Court's Daubert standard for expert scientific testimony.

Smouse, by prompting industry lawyers to respond to peer-reviewed and published science showing a link between cell phones and cancer, may have shifted the debate in the direction of a jury. Blake will decide whether the case goes forward.

Less than a week later, Smouse wrote Blake and asserted the defendants "have clearly misread the paper."

Top of Page