RICHMOND, Va.-A three-judge federal appeals court panel wrestled with arguments over whether U.S. District Judge Catherine Blake abused her discretion or appropriately carried out her gate-keeping role in rejecting scientific testimony of Dr. Lennart Hardell that proved pivotal in her dismissal last year of an $800 million brain-cancer lawsuit against Motorola Inc. and others.
The oral argument, heard by the U.S. Court of Appeals for the Fourth Circuit, lasted no more than an hour in a small court packed with lawyers, lobbyists and various onlookers. In August 2000, Maryland neurologist Christopher Newman filed a lawsuit that claimed using his cell phone caused his brain cancer. Blake tossed out the case last October.
“She abused her discretion in that finding,” said H. Russell Smouse, a Newman attorney with the law firm of star trial lawyer and Baltimore Orioles owner Peter Angelos.
The strategy of Newman’s legal team was straightforward. In order to show Blake went too far in precluding Hardell’s testimony, Newman’s lawyers needed to rehabilitate their star witness, who had been roughed up badly by industry lawyers during five days of hearings in February 2002.
“This is not junk science,” said Smouse, detailing Hardell’s resume and stressing that Hardell’s work had been peer reviewed and published in various scientific journals.
“It is a jury question,” said Smouse. He accused Blake of substituting her judgment for the jury’s.
But it appeared at least one of the judges was not buying the argument.
“Isn’t a district judge allowed to look at conclusions?” asked Judge Dennis W. Shedd, noting that Blake’s job by definition was to sort out and assess the legitimacy of scientific arguments from both sides.
To a lesser degree, Judge H. Emory Widener Jr. gently made the same point.
Shedd also seemed to cast doubt on whether Hardell’s epidemiology studies were even relevant to the particular facts of Newman’s brain-cancer claim.
Jane Thorpe, an attorney with Atlanta-based Alston & Bird who argued for industry, took the tack that had worked so well in Blake’s Baltimore court.
Thorpe attacked Hardell’s methodology and conclusions, accusing him of cherry-picking data for result-oriented experiments.
“Dr. Hardell’s methodology has not been tested and replicated,” said Thorpe.
In addition, pointing to Fourth Circuit and Supreme Court legal precedent, Thorpe insisted Blake was right on the money in bouncing Hardell from the Newman case.
“Judge Blake got it right on the law and right on the science,” said Thorpe. Thorpe also pointed to the extensive hearings and voluminous briefs reviewed by Blake.
But that tactic seem to backfire with one judge.
“That’s what makes me worry,” said Judge M. Blane Michael. “I wonder whether she wasn’t getting into evidence and weighing it.”
Michael’s remarks appeared to throw Thorpe off momentarily, before regaining her poise and finishing with a flurry.
It was almost a year to the day in Baltimore federal court that Blake rejected Hardell’s expert testimony, ruling it did not meet Supreme Court standards. Blake threw out the lawsuit a month later, on Oct. 31, 2002.
Had Blake accepted Hardell as an expert witness, the Newman case would have gone to trial and likely would have invited more lawsuits against the mobile-phone industry. There are still nearly a dozen brain-cancer lawsuits pending in Blake’s court against wireless carriers, equipment vendors and trade associations. The suits seek hundreds of millions of dollars. Five class-action suits-seeking to force carriers to supply mobile-phone buyers with hands-free devices to reduce their exposure to radiation-also are on appeal in the 4th Circuit. Blake rejected the lawsuits earlier this year.
As such, Blake’s decision in the Newman case was an unprecedented legal victory for the mobile-phone industry because it seemed to diminish-at least temporarily-a particular legal exposure that successfully exploited by plaintiffs’ lawyers easily could have cost industry billions. Such a hit could bring industry to its knees at a time when wireless operators face financial challenges and legal problems on the consumer front.
But industry has withstood the challenge. Defense lawyers representing carriers and manufacturers have yet to lose a cancer case in court. Perhaps more importantly, they have made plaintiff’s lawyers think twice about filing brain-cancer allegations against the wireless industry.
Smouse said the appeals court panel asked a lot of good questions.
“I think it went very well,” said Thorpe.
It is unclear when the appeals court will rule.
