WASHINGTON-The wireless industry last week suffered two stunning legal setbacks in health-related litigation, capped by the decision of wealthy Baltimore superlawyer Peter Angelos to take control of an $800 million mobile phone-cancer lawsuit in Maryland.
It was an unprecedented week that left the industry in shock, putting wireless manufacturers and carriers arguably in their worst legal situation since cell phone-cancer allegations first surfaced seven years ago.
In addition to Angelos’ grand entry into cell phone-cancer litigation, wireless industry efforts to dismiss lawsuits in Illinois and Louisiana were soundly rejected. Lawsuits in both states now go forward, with the likely prospect of additional litigation against the mobile-phone industry in coming months.
The next lawsuit is expected to be filed any day in Georgia, according to an attorney close to the case. In addition, RCR Wireless News confirmed last week that another mobile phone-cancer lawsuit is pending in Las Vegas against Motorola Inc. and others.
“The players may change; the facts don’t. The science does not change,” said Norman Sandler, director of global strategic issues at Motorola.
Adding fuel to the controversy are two new studies: one conducted by German scientists who claimed a link between mobile phones and eye cancer and another performed by U.S. scientists that failed to find genetic damage from human blood exposed to mobile-phone radiation. One scientist who worked on the latter study, Dr. Joseph Roti Roti, has been paid in the past by Motorola to conduct cell phone-cancer experiments. Martin Meltz, another scientist on the same study, has been outspoken in claiming that cell phones are safe.
On its Web site, the Cellular Telecommunications & Internet Association highlighted criticism of the German study by Peter Inskip, author of a recently published U.S. National Cancer Institute study. That study failed to find an association between mobile phones and cancer.
Last Tuesday, Angelos confirmed what had been speculated for months. The man who has litigated against asbestos, tobacco and lead-paint manufacturers and won more than $1 billion in personal-injury lawsuits, decided to take on the mobile-phone industry.
“We wouldn’t comment on who a plaintiff uses for counsel,” said Nancy Stark, a spokeswoman for Verizon Wireless, the No. 1 mobile-phone operator in the United States and a defendant in the Maryland lawsuit.
While it has won the handful of lawsuits filed so far, the wireless industry has never faced a lawyer with the expertise, financial resources and political firepower of a Peter Angelos.
Angelos, owner of the Baltimore Orioles and a top Democratic Party contributor who runs a firm of 110 lawyers in six states, took over a lawsuit filed last August against Motorola Inc., Verizon Wireless and others on behalf of a 41-year-old Baltimore neurologist.
Dr. Christopher Newman, a wireless subscriber since 1992, claims in the lawsuit that cell-phone use caused his brain cancer.
The lawsuit was originally filed by Baltimore attorney Joanne Suder last August. In December, a Baltimore federal judge dismissed several counts in the suit and dismissed Verizon Communications, the Cellular Telecommunications & Internet Association, the Telecommunications Industry Association and SBC Communications as defendants.
U.S. District Judge Catherine C. Blake also ruled against Suder’s request to remand the case back to state court.
The amended complaint, filed last week by Angelos law firm attorneys John Pica and Gary Ignatowski, names all the original defendants in the suit as well as a new one, Nationwide Mobile Communications. NMC is a retail outlet that sold a cell phone to Newman.
The lawsuit, which alleges “fraudulent and conspiratorial conduct” and failure to warn consumers about possible health risks from mobile phones, includes a litany of scientific studies that Angelos claims support his case.
“The defendants know or should have known that the use of RFR frequency in WHHPs [wireless handheld telephones] was defective, unreasonably dangerous, hazardous and also that it was foreseeable the WHHPs would cause injury,” the lawsuit states.
It continues: “The defendants, researchers and engineers have known at all times relevant that RFR [radio-frequency radiation] energy is absorbed and/or penetrates deeply into biological tissue such as the human head and brain and that RFR can have a serious biological impact on the WHHP user.”
The suit accuses the cellular-phone industry of manipulating research and intimidating scientists and misleading a public that today numbers 110 million cell phone users.
“CTIA and TIA intentionally and/or negligently, concealed evidence and research” of Wireless Technology Research L.L.C., the six-year, $28 million program headed by epidemiologist Dr. George Carlo that found genetic damage in human blood from mobile-phone radiation.
Carlo, who has met with Angelos several times but has refused to be an expert witness for him, made similar allegations against CTIA in a new book.
TIA and CTIA declined to comment.
“We have no comment on pending litigation,” said Travis Larson, a CTIA spokesman.
Suder, who will remain on the Newman case as co-counsel, said she plans to file more related lawsuits this year.
Pica, a former Maryland state lawmaker who is leading the litigation effort against the wireless industry for Angelos, recently told a London newspaper his law firm would file 10 mobile-phone suits this year.
However, Angelos subsequently distanced himself from Pica’s comments.
In Illinois last Tuesday, the state Supreme Court turned backed industry’s request to declassify a nationwide class-action suit. The lawsuit, which started out small when it was filed in Cook County Court in 1995, has mushroomed into one of the nation’s largest.
The suit alleges privacy invasion and a health-risk cover-up in connection with an epidemiology study funded by the cellular industry and conducted by WTR. The ruling clears the way for the national publication-perhaps in USA Today-of the class-action suit. The lawsuit names as defendants WTR, Motorola, Ameritech Mobile Communications (now SBC Communications Inc.), CTIA and Epidemiology Resources Inc.
“It’s regrettable that the [Illinois] decision went the way it did. We look forward to addressing substantive issues in the case as opposed to procedural issues,” said Motorola’s Sandler.
Wireless industry lawyers wanted at a minimum to have the wording of the class-action notice scrapped. The class-action notice includes the names of more than 100 cellular carriers. The class-action, certified last July, covers subscribers who received service from more than 100 mobile-phone firms between Nov. 1, 1993 to Dec. 23, 1998.
During that period, the industry signed up approximately 40 million subscribers.
Meanwhile, in a New Orleans court last Wednesday, a federal judge rejected the wireless industry’s attempt to have another class-action lawsuit thrown out on federal pre-emption grounds.
The ruling is a huge legal loss for the wireless industry, which has relied on federal pre-emption as a linchpin to successfully defend itself in other suits.
In the past, the wireless industry was able to sidetrack cancer lawsuits by arguing the Food and Drug Administration has national jurisdiction over radiation-emitting guidelines but has not seen fit to intervene to protect mobile-phone subscribers from health risks.
Therefore, under the federal pre-emption argument, state courts are barred from bringing action against wireless firms. But U.S. District Judge Ivan L.R. Lemelle disagreed, saying FDA has sent out mixed signals on whether mobile phones are safe.
While FDA has publicly stated cell phones do not present a clear and present danger to consumers, the agency concedes more research is needed before the government can conclude with certainty that
phones are safe.
The U.S. Supreme Court recently decided not to review a federal appeals court ruling in New York that upheld mobile phone and tower radiation guidelines adopted by the Federal Communications Commission in 1996.
The wireless industry, for its part, insists the preponderance of scientific evidence gives cell phones a clean bill of health.
Various countries are conducting cell phone-cancer research, but the U.S. government is conducting almost none. The FDA is working with the mobile-phone industry to replicate the WTR experiment that found genetic damage from mobile phone emissions.
Several lawmakers in the House and Senate last year sponsored legislation for government-funded mobile phone-cancer research. They are expected to reintroduce the bills this year.
The New Orleans lawsuit, which also could expand into a nationwide class action, argues the mobile-phone industry was negligent in not supplying handsfree headsets with phones to lessen radiation exposure. The suit also seeks medical monitoring of cell phone users who have not used headsets.
“The more that this is understood and out in the public, the more opportunity people have to become aware of the need for headsets,” said Michael Allweiss, a New Orleans lawyer who represents the plaintiff in Garrett J. Naquin vs. Nokia Mobile Phones Inc. et al.
Allweiss added: “This is a major victory because it allows others to explore the industry’s behavior.”
