WASHINGTON-A key hearing in Illinois state court early next month could determine whether a major case proceeds in which consumers claim cellular pocket phones cause brain cancer and accuse pocket phone companies of conspiring with the industry-funded bioeffects research group to cover up alleged health problems from phones.
At issue is whether federal oversight of cellular telephone safety pre-empts personal injury and other civil claims in state court.
On May 7, the Circuit Court of Cook County, Ill., will consider Wireless Technology Research L.L.C.’s motion to dismiss personal injury, product liability and other claims against it, Motorola Inc., NEC America Inc. and the Cellular Telecommunications Industry Association.
In one case brought by Robert Verb and others against a group of manufacturers and carriers for pocket telephone safety misrepresentation, Illinois courts held and affirmed that Food and Drug Administration jurisdiction over wireless phones pre-empted their cause of action in state court.
The Illinois State Supreme Court has been asked to review the lower court rulings in the Verb case.
Relying on that ruling, WTR-the wireless industry-funded entity contracted to conduct research over five years to determine whether pocket telephones pose a potential health risk to consumers-wants the Illinois court to dismiss personal injury and conspiracy claims brought against it, Motorola and CTIA in a different lawsuit brought by Debbra Wright and others.
Wright, a former cellular pocket phone subscriber, was found to have a benign brain tumor, which she believes was caused from using her cellular phone.
“Under Verb, even if the plaintiffs allegations about the WTR were true-which the WTR vigorously denies-this court could not entertain them because it lacks subject matter jurisdiction over such issues,” said WTR’s attorneys in its dismissal motion in February.
But Wright’s lawyers disagree that Verb is controlling.
“Plaintiffs claims are fundamentally different from the claims asserted in Verb, both substantively and procedurally,” said Wright’s lawyers.
“Specifically, plaintiffs herein have suffered or are suffering from brain tumors. Plaintiffs claim that their use of cellular telephone aggravated or accelerated their brain tumors. No such allegation existed in the matter of Verb. For defendants to even draw such an unwarranted parallel between unrelated matters demonstrates the paucity of support for their motions to dismiss.”
Wright’s lawyers rely heavily on a 1996 Supreme Court ruling in which the high court allowed a claim to be made against the manufacturer of a malfunctioning pacemaker even though the device’s safety is regulated by the FDA.
Dr. George Carlo, chairman of WTR, was dropped from the Wright lawsuit in December 1995. However, WTR, the entity, remains a defendant.
Approaching the start of its fifth year, WTR has finished one epidemiology study that found little difference in the mortality rates between users of pocket phones and other styles of mobile telephones.
But no cell culture or animal radiofrequency radiation exposure studies have been done to date. Indeed, cellular phone-related litigation has interfered with WTR research. After a long delay, during which Carlo and CTIA President Thomas Wheeler jostled over indemnification for WTR scientists, both men announced several months ago an agreement to insure industry-paid scientists against lawsuit damages. As of last week no agreement had been signed, though the parties said they were getting closer.
