WASHINGTON-The District of Columbia Superior Court judge overseeing a cellular industry motion to dismiss six brain cancer lawsuits could be swayed by a Supreme Court ruling expected today. That ruling concerns whether to review a 4th Circuit decision remanding to state courts class-action suits alleging mobile phone companies put consumers at risk by not supplying them headsets to limit radiation exposure.
Associate Judge Cheryl Long also may weigh the consequences of allowing brain cancer suits to go forward in light of what it could mean for the federal wireless regime. In addition, Long could be looking at recent history, including in terms of massive asbestos litigation that has given rise to more than $70 billion in judgements and settlements and, numerous bankruptcies. The brain cancer suits name major U.S. mobile phone carriers, manufacturers, top standards bodies and industry trade associations as defendants.
The Supreme Court scheduled a conference last Friday to consider the wireless industry’s request to take the headset case, the last step before deciding whether the 4th U.S. Circuit Court of Appeals erred in March in overturning U.S. District Judge Catherine Blake’s 2003 decision to throw out the suits on federal preemption grounds.
A lot is riding on the Supreme Court’s action.
If the high court decides to review the 4th Circuit headset case, all wireless health litigation is apt to be put on hold well into 2006 until a decision is rendered. A decision by the Supreme Court to let the 4th Circuit decision stand likely means brain cancer and headset suits will go forward in state courts, a venue the wireless industry has tried to avoid since the health issue was first raised in a Florida suit more than a decade ago. The latter outcome also could cause Wall Street to revisit risk factors for the $100 billion mobile phone industry.
Judge Long heard oral arguments last Monday on industry’s motion to dismiss the six brain cancer suits. Long said she would begin writing an opinion after the hearing, but will give parties a date to update the record when she is nearing completion of her decision.
Long did not ask questions during the hearing.
A week before oral arguments, however, Long sent lawyers for the plaintiffs and defendants three questions that she wanted addressed at last Monday’s hearing.
The first question asked whether there is any cause of action in the brain cancer suits that would not require a judge or jury to determine that the federal standard for RF radiation emissions from mobile phones is inadequate, outdated or scientifically inadequate. Question two asked whether a jury would be competent to weigh and judge the public policy contentions such as testing mobile phones for compliance with federal guidelines limiting the level of non-ionizing radiation absorbed by human tissue. The third question was whether D.C. law precludes dismissing the six lawsuits at this stage of the case.
Attorney Andrew McBride, representing the wireless industry, answered no to all three questions.
McBride said the cell phone cannot be separated from wireless networks, which are subject to national uniform federal regulations.
“On the one hand, it’s quite clear that saying that is a defective product or it’s unreasonably dangerous goes right to the heart of FCC rules and the plaintiffs almost concede that implicitly in their opposition,” said McBride.
Later, McBride, noting the interstate system of communications and the nation’s 180 million cell phone subscribers, stated, “I think Your Honor hit the nail right on the head when you said can we really have lay juries in all 50 states deciding what the standard should be for the design of the phone, whether the signal strength is too strong or too weak.”
Mayer Morganroth, arguing for the six plaintiffs, said the FCC has ruled that federal law does not preempt all consumer suits filed in state courts.
“The defendants want national standards because then they don’t have to worry about ever getting sued by anybody and, therefore, they can do whatever they want,” said Morganorth.
Morganroth added: “Now the states really have an inherent right to protect their consumers. We are not asking them to change locations of towers. We are not asking them to change their concepts regarding frequency, regarding towers and locations. We’re asking them to be careful not to kill people and to be honest in their representations.”
