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Appeals Court Hears Oral Argument On Headset Class Actions
RCR Wireless News
Journalist: Jeffrey Silva
October 01, 2004

A federal appeals court judge today cast doubt on whether U.S. District Judge Catherine Blake was within the law in dismissing on federal pre-emption grounds five class-action lawsuits seeking to force cellular carriers to supply consumers with headsets to reduce any risk of injury from radiation emitted by mobile phones.

The oral argument before the 4th U.S. Circuit Court of Appeals had former independent counsel Kenneth Starr arguing for the cellular industry against a New Orleans attorney working with the firm of high-powered trial lawyer and Baltimore Orioles owner Peter Angelos.

Fourth Circuit Judge J. Michael Luttig, among those mentioned as a candidate for the U.S. Supreme Court should President Bush be re-elected and need to fill vacancies on the high court, pressed both plaintiff lawyer Michael Allweiss and Starr on whether Blake correctly ruled last year that federal law trumped the state claim at issue.

The five class-action lawsuits were originally filed in various state courts, but later consolidated in U.S. District Court in Baltimore and assigned to Blake. In 2002, Blake rejected an $800 million brain cancer lawsuit against Motorola Inc. and other telecom companies.

Luttig saved his toughest questions for Starr, who forcefully argued there was a substantial federal question that justified pre-emption of the class-action headset suits. Starr said Congress and the Federal Communications Commission established a uniform federal regime of technical standards that enable wireless communications while keeping consumers safe.

Luttig disagreed. "I don't see how this [headset claims] impedes the federal question."

Starr argued the federal question is unavoidable, and governmental agencies are clear and unequivocal on the mobile-phone health issue.

"There are no known risks," said Starr. Starr pointed out that a Web site constructed by the FCC and the Food and Drug Administration at the direction of Congress states there is no need for headsets. Luttig responded that he read the FCC-FDA statement slightly differently.

Indeed, Luttig did not appear to buy Starr's arguments. Verbal exchanges between the two men grew testier as the oral argument proceeded. The other two federal appellate judges, M. Blane Micheal and Jackson L. Kiser, injected commentary here and there, but otherwise said very little.

"I think this is the argument that the District Court fell prey to," Luttig told Starr. Luttig said he believed Blake was intimidated by the "blizzard of information" on federal statutes that industry presented to make its case before the Baltimore federal judge.

Starr warned that if Blake is overturned, there will be a patchwork of laws throughout the 50 states, some requiring headsets and others shields or even helmets.

"We think the District Court was correct and hope this court will agree," said Starr.

Luttig did not let Allwiess off the hook, however.

"Is there a federal question that must be resolved?" asked Luttig.

"Off course, there's not," replied Allweiss. Allweiss said he was not challenging the federal standard governing human exposure to mobile-phone radiation. He said the state claim was legitimate. "There is [biological] cellular disruption. Individuals have the right to protect themselves from unwarranted radiation," said Allweiss.

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