WASHINGTON-The wireless industry, pointing to legal, legislative and regulatory precedent, told a federal appeals court that U.S. District Judge Catherine Blake was correct to dismiss on federal pre-emption grounds five class-action lawsuits seeking damages on behalf of consumers who plaintiffs allege should have been supplied with headsets to reduce health risks from radiation emitted by mobile phones.
“The extensive system of federal regulation here-combining the technical expertise of the FCC [Federal Communications Commission] with the health and safety expertise of the FDA [Food and Drug Administration], and striving for a federal consensus-leaves no room for conflicting state regulation,” stated wireless carriers, manufacturers and trade associations in a 63-page brief filed with the 4th U.S. Circuit Court of Appeals Oct. 1.
The five class-action lawsuits originally were filed in various state courts by the law firm of Baltimore Orioles owner Peter Angelos and others. The suits subsequently were consolidated and transferred to Blake’s court in Baltimore. Blake threw out the suits in March.
Blake was unequivocal in ruling that wireless health is a federal issue that U.S. regulatory and health agencies have thoroughly analyzed and determined that mobile-phone radiation standards are adequate to protect human health.
“Congress passed legislation, and federal agencies collaborated in RF [radio frequency] emissions, guided by the objectives of achieving a nationally uniform wireless telecommunications system and balancing the development of that system with the need to protect the public from any harmful effects of RF exposure,” stated Blake in the March ruling.
In addition to the headset case, the 4th Circuit is entertaining an appeal of a 2002 Blake ruling dismissing Christopher Newman’s $800 million cancer lawsuit against Motorola Inc. and others. Oral argument in Newman appeals was heard Sept. 26 in Richmond, Va. The Angelos firm also represents Newman.
A lot is riding on the headset appeal, not only for class-action suits themselves but also for another nine brain-cancer suits in Blake’s court.
Motions to return the brain-cancer suits to state courts are pending before Blake. However, the Baltimore judge is considering delaying her decision on the motions until the 4th Circuit rules on the headset appeal and in light of a recent Supreme Court ruling on federal pre-emption.
Plaintiffs’ lawyers in the headset appeal are pinning their hopes in part on the high court’s ruling on Beneficial National Bank v. Anderson.
The Supreme Court majority said state claims generally are not transferred to a U.S. district court “if the complaintant does not affirmatively allege a federal claim.” But there are two exceptions. One is when Congress provides for such a jurisdictional transfer. The other is when a federal statute supercedes the state-law cause of action through complete pre-emption.
“None of these circumstances exist here. The complaints do not affirmatively allege a federal claim. Congress has made no express provision for removal of cases brought against telecommunications companies,” headset plaintiffs stated in their brief.
Industry lawyers view the Supreme Court in a different light, arguing wireless telephony-like national banks-have a special federal nature.
