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Federal Judge Dismisses Suit Alleging Cancer Risk From Cell Phone Use
The Legal Intelligencer
Journalist: Shannon P Duffy
September 5, 2008

In a major victory for cellular phone manufacturers and service providers, a federal judge has dismissed a consumer class action suit that accused the companies of conspiring to hide evidence that the radio frequency emissions from cell phones pose biological hazards including the risk of brain cancer.

In his 46-page opinion in Farina v. Nokia, Senior U.S. District Judge John R. Padova concluded that a consumer suit alleging breach of warranty claims stemming from the alleged dangers of cell phone radio frequency, or RF, emissions is pre-empted by federal law because the Federal Communications Commission has the exclusive power to set the standards for radio frequency radiation in cell phones.

"Farina's allegations unquestionably trample upon the FCC's authority to determine the maximum standard for RF emissions," Padova wrote.

Padova found that Congress has given the FCC "exclusive authority over every technical aspect of radio communication," and that the FCC has explicitly asserted "federal primacy" over the areas of technical standards for cellular service.

In declaring that its regulations have pre-emptive effect, Padova said, the FCC said in a ruling that "it is imperative that no additional requirements be imposed by the states which could conflict with our standards and frustrate the federal scheme for the provision of nationwide cellular service."

The FCC has also assumed "specific responsibility for creating safety standards for cell phone RF emissions" under its authority to enforce the National Environmental Policy Act, also known as NEPA, Padova found, and has issued regulations establishing the maximum "specific absorption rate," or SAR, allowable for cellular devices.

Padova found that such specific delegation and assertion of federal authority was fatal to the plaintiffs' claims.

In the suit, plaintiffs lawyers argued that the cell phone companies knew or should have known of the biological risks associated with cell phone use and that the risk decreases when there is a greater distance between the cell phone and the user. But despite knowing that headsets would increase the distance and reduce the risk, the suit alleged, the defendants sold cell phones without headsets.

The suit alleged that studies have disclosed widespread complaints, such as headaches, sleep problems and burning sensations in as little as 15 minutes of cell phone use and that other studies have warned of brain cancer after extended use of analog cell phones. Additional studies warned of potential changes in the blood-brain barrier and several types of damage to the brain as results of exposure to microwave radiation, the suit alleged.

Padova found that allowing such a claim to go forward would intrude on the FCC's authority.

"In order to win a jury verdict on these claims, Farina necessarily has to ask a jury to accept his premise that the FCC's SAR maximum is inadequate to ensure the safe use of cell phones and, thus, headsets are required in order to make them safe," Padova wrote.

As a result, Padova found, the suit "seeks to impose legal duties that would conflict directly with federal regulatory mandates because the defendants could be held liable even though they indisputably complied with the SAR maximum."

The suit named 19 defendants, including all of the major cell phone manufacturers and providers, as well as two trade associations: Nokia Inc.; Ericsson Wireless Communications Inc.; Motorola Inc.; Sprint PCS; Audiovox Communications Corp.; Nextel Communications; Panasonic Corp.; Philips Electronics North America Corp.; Qualcomm Inc.; Sanyo North America; Sony Electronics Inc.; AT&T Wireless Services Inc.; Verizon Wireless; Southwestern Bell Mobile Systems Inc.; Cellular One; VoiceStream Wireless; LG Electronics Mobilecomm Inc.; Cellular Telecommunication Industry Association; and Telecommunications Industry Association.

Taking the lead in arguing a joint motion to dismiss the suit were attorneys Seamus C. Duffy of Drinker Biddle & Reath in Philadelphia, representing AT&T, and Terrence J. Dee of Kirkland & Ellis in Washington, D.C., representing Motorola.

(Editor's Note: Seamus Duffy is the brother of Shannon Duffy, the author of this article.)

The plaintiffs team was led by attorney Kenneth A. Jacobsen of Wallingford, Pa., and included attorneys Michael D. Donovan of Donovan Searles in Philadelphia; Joseph A. O'Keefe of O'Keefe & Sher in Kutztown, Pa.; and Glenn E. Mintzer and H. Russell Smouse of the Law Offices of Peter G. Angelos in Baltimore.

The suit was one of a spate of similar suits filed in 2001 that took a complicated journey through the state and federal courts.

After defendants removed all of the suits from state to federal courts, the Judicial Panel on Multidistrict Litigation assigned all of the cases in October 2001 to U.S. District Judge Catherine Blake in the District of Maryland.

Blake dismissed all of the suits on pre-emption grounds, but the 4th U.S. Circuit Court of Appeals reversed, finding that Blake never should have entertained jurisdiction over three of the cases because the complaints stated only state law grounds and failed to satisfy the "substantial federal question" doctrine.

The 4th Circuit also revived a fourth case -- the only one that qualified for diversity jurisdiction -- and held that Blake had erred in declaring that it was pre-empted.

In Pinney v. Nokia Inc., the 4th Circuit held that Congress never intended to pre-empt such state law claims, but instead was careful to expressly pre-empt only certain areas of state law -- the regulation of entry and rates and local zoning rules based on environmental factors.

In the wake of the 4th Circuit's decision, the Farina case was sent back to the Pennsylvania state courts.

But the defendants removed the case to federal court a second time after a new defendant was added, putting the case on Padova's docket.

When the defense moved for dismissal on pre-emption grounds, the plaintiffs argued that the 4th Circuit's decision was the "law of the case."

Padova disagreed, finding that the 4th Circuit's rulings on the pre-emption issue applied only to one of the four cases, and that Farina and two others were dismissed on separate, jurisdictional grounds.

As a result, Padova found that he was not bound by Pinney, and instead should look to decisions from the U.S. Supreme Court and the 3rd U.S. Circuit Court of Appeals.

Padova declined to follow Pinney after concluding that it conflicted with 3rd Circuit and Supreme Court decisions.

"We find that Pinney reached the wrong conclusion," Padova said, because the 4th Circuit focused too narrowly on the statutory delegation of authority to the FCC.

Although such an analysis is proper when conducting an "express pre-emption" inquiry, Padova found that it fell short for answer whether there should be "implied pre-emption" due to conflicts between state tort laws and federal regulations.

"We see no justification for ignoring the FCC's clear authority under NEPA when analyzing conflict pre-emption," Padova wrote.

Jacobsen, in an interview, said he intends to appeal the ruling to the 3rd Circuit because he disagrees with Padova's ruling on the law-of-the-case issue and on the merits.

"We believe the 4th Circuit's decision is the law of the case and is also right on the merits," Jacobsen said.

In the appeal, Jacobsen said he intends to argue that the FCC has overstepped its authority by claiming it has the power to regulate health and safety issues.

Although no one disputes that the FCC was given broad powers to regulate the phone industry under the Federal Communications Act, Jacobsen said, it is "too much of a stretch" to say the NEPA, an omnibus bill that applies to all federal agencies, gave the FCC the power to regulate health and safety issues relating to cell phones.

Instead, Jacobsen said, he believes Congress "has always viewed these state court suits as a compliment to regulation."

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