WASHINGTON-Lawyers representing scores of brain-cancer patients are considering filing a nationwide class-action lawsuit against the mobile-phone industry and a public-interest lawsuit against several federal agencies later this year, a potentially monumental and unprecedented legal move that could prove devastating to wireless firms already battered by Wall Street.
While there has been increased health litigation in recent years-some lawsuits filed on behalf of cellular subscribers with brain tumors and others of the class-action variety designed to force industry to supply consumers with hands-free headsets to prevent possible radiation injury-the nearly 20-year-old mobile-phone industry has not faced anything close to the magnitude of litigation being contemplated by plaintiffs lawyers around the country.
“I think many of the early warning signs for an assault on the [cell phone] industry are up,” said Victor Schwartz, a legal expert in mass tort litigation and general counsel to the American Tort Reform Litigation. “The cell-phone industry is too rich not be plundered and, some say, too smug to worry.”
Indeed, former Motorola Inc. engineer Robert Kane-who has just published a book claiming mobile-phone health dangers have been known for years and pushed aside by industry-plans to file an appeal brief next month in a lawsuit alleging that his brain tumor was caused by cell-phone radiation.
The Suder Law Firm, which last August filed an $800 million lawsuit against several major wireless companies before handing the case over to fellow Baltimore lawyer Peter Angelos, is said to be putting together a high-powered legal team that could include Mayer Morganroth, Ron Motley and other high-profile trial lawyers.
Morganroth, who oversees a mostly family-run law firm in Southfield, Mich., handled the appeal of Jack Kavorkian’s second-degree murder conviction and has been involved in litigation involving auto entrepreneur John DeLorean and former Detroit Mayor Coleman Young.
Motley, like Angelos, is a big-time plaintiffs lawyer who figured big in litigation against the asbestos and tobacco industries. Motley was lead attorney in Medicaid lawsuits as well.
Mass tort litigation and public-interest lawsuits are nothing new to corporate America or the U.S. government.
The public-interest lawsuit, a tool used by the Environmental Defense Fund and the National Resources Defense Council during the 1980s against government regulators, likely would target the Food and Drug Administration, Environmental Protection Agency, Federal Communications Commission, National Institutes of Health and possibly others.
The FDA, which has jurisdiction over radiation-emitting devices, has been sharply criticized for a narrow phone-cancer research project it is working on with industry. FDA said it sees no imminent health risks from cell phones, but cautions more research needs to be conducted before they can be declared safe.
While acknowledging that budget pressures prevent it from adequately overseeing cell-phone health safety and agreeing with a recent government report that additional research is needed, FDA (as well as NIH) was silent in a late July written response to questions from Rep. Edward Markey (D-Mass.) and Sen. Joseph Lieberman (D-Conn.) about whether the federal government should be supporting more mobile-phone health research.
The FCC, which in 1996 adopted an industry-crafted radiation safety standard with input from several federal agencies, also has very little money and only a skeletal staff devoted to enforcing radiation guidelines. EPA, which at one time actively pursued mobile-phone health issues, has seen its radiation- safety program nearly decimated by funding cuts.
The FCC radiation standard, upheld by the courts, has been criticized as inadequate because it protects against heating injury but not against adverse non-thermal effects that research has documented.
Today, the United States-which numbers 118 million cell-phone subscribers-conducts very little research. Most of the cancer studies conducted during the past decade have been sponsored by industry.
“Careful coordination of international research efforts is critical to ensure the best use of available resources and avoid excessive duplication of effort,” acting NIH Director Ruth Kirschstein stated in a June 11 letter to the two lawmakers. The cell-phone industry, which insists many studies prove phones are safe, often makes the same point when questions about U.S. research arise.
Colin Crowell, a Markey aide, said the Massachusetts lawmaker has not studied the responses from NIH, FDA and FCC yet, and therefore has not decided what, if any, steps he will take next. Markey and Lieberman were catalysts for a General Accounting Office report in May that determined it “likely will be years before a definitive conclusion can be reached on whether mobile-phone emissions pose any risk to human health.” Lieberman’s office did not respond to a call for comment.
The Vermont congressional delegation and Rep. Tom Tancredo (R-Colo.) plan to introduce legislation in September that would provide federal funding for wireless health research.
Some scientists and health advocates claim industry is misleading the public about cell-phone safety, referring to experiments that have found DNA breaks, genetic damages, tumors in lab mice, eye cancer, memory impairment and other neurological disorders from mobile-phone radiation.
The model for massive class-action litigation is well established from asbestos, tobacco, lead paint, handgun and breast implant lawsuits. Once a handful of tort actions are filed, plaintiffs lawyers gravitate to the particular area of litigation and file separate lawsuits of their own. The lawyers soon begin to network, share information and compete for standing on the legal team. They heavily publicize their cause and sometimes seek legislation to complement their litigation.
In response, defense lawyers act much in the same fashion to share costs, information and legal horsepower. Sometimes a given law firm is assigned national defense counsel.
