WASHINGTON-An Illinois judge last week ruled that personal injury claims in product liability lawsuits against cellular telephone manufacturers can proceed, but dismissed conspiracy charges against the Cellular Telecommunications Industry Association, former CTIA spokesman Ron Nessen and Wireless Technology Research L.L.C.
The ruling involves four cases in which people allege that cellular phones caused or promoted brain cancer. In one case, a plaintiff charged that CTIA, WTR-a cellular industry-funded entity conducting cancer research-and others conspired to hide potential health hazards from phones.
Dr. George Carlo, chairman of WTR, was dropped as a defendant in the conspiracy case in January 1996. But WTR remained a defendant until last week.
The May 7 order by Judge Paddy H. McNamara keeps alive litigation against Motorola Inc. and NEC America Inc., a U.S.-based subsidiary of a major Japanese electronics company.
The case, in the Circuit Court of Cook County in Chicago, turned primarily on the issue of federal pre-emption. Defendants in the case argued that Food and Drug Administration jurisdiction over cellular phone safety pre-empted litigation in state court.
Last month, the Illinois Supreme Court let stand a lower court ruling that dismissed a product liability suit against Motorola on federal pre-emption grounds. That case, Verb vs. Motorola, did not involve a personal injury claim.
In a 13-page opinion, Judge McNamara said the pre-emption doctrine held with regard to conspiracy and deceptive trade practices act allegations in the four consolidated lawsuits against WTR and cellular industry interests.
But McNamara held that Verb did not rule out personal injury claims. “Indeed, in Medtronic the Supreme Court found that state law claims were not pre-empted, and that state law claims under Medical Devices Act of 1976 were pre-empted `only to the extent that the FDA promulgate a relevant federal requirement.’ “
“This is a very big victory for WTR,” said James Baller, a lawyer for the research group.
Tim Ayers, a spokesman for CTIA, called the Illinois decision welcome news.
But CTIA and WTR are not entirely out of the woods.
A separate lawsuit before the Cook County court alleges a WTR epidemiology study violated privacy rights of cellular subscribers by not making them, as subjects of the experiment, aware of possible harmful effects from their phones.
WTR’s Carlo was dropped from that suit late last month, but the possibility remains that Carlo could be dragged back into that litigation if the plaintiff amends his complaint to allege a conspiracy.
Elsewhere, Motorola, NEC, General Electric Co. and Ericsson Inc. are being sued in Texas by the estate of a physician, Dean Vincent Rittmann, who is alleged to have died of brain cancer as a result of extensive cellular telephone use.
The various lawsuits have contributed to delays in radio frequency radiation bioeffects research by WTR. Only recently, after months of fighting, did WTR and CTIA agree to indemnify scientists from lawsuits.
The cellular phone-cancer allegation has become fertile ground for litigation, with current relevant data producing conflicting results on the potential health risk of phones. No suit making the claim has succeeded to date.
But the health issue remains alive in local zoning proceedings in which consumers have raised fears about RF radiation from wireless phone towers, particularly those located on school property.
The Federal Communications Commission last August adopted stricter RF exposure standards recommended by the Environmental Protection Agency. The new guidelines were challenged by industry for being too tough and by consumer advocates for not being tough enough.
A decision on those challenges has been held up for months by a companion proposal addressing RF-related antenna siting disputes between local governments and wireless phone companies.
Rudy Baca, an aide to FCC Commissioner James Quello, said his office expects to receive a draft of the measure shortly. Once that proceeding progresses, the FCC will be in a position to issue a technical bulletin advising carriers how to comply with the new RF safety standard.
