In a seemingly endless controversy of unexpected twists and turns, there is little mystery in what U.S. District Judge Catherine Blake was thinking when she thought she was saying goodbye to the last of many cell-phone health suits that have come her way during the past five-and-a-half years.
Blake, smartly credentialed and highly regarded in legal circles, threw out five class-action headset suits in 2003 on federal pre-emption grounds. Months earlier, Blake rejected an $800 million brain-cancer suit filed by neurologist Christopher Newman after determining the scientific evidence offered by his legal team’s expert witnesses was insufficient to warrant the case going to trial. And that was that. Or so it seemed at the time.
Many other mobile-phone cases would make their way to Blake’s federal court in Baltimore. While she feels strongly about the relevancy of the federal question (and perhaps about the weight of scientific data) in wireless health litigation, Blake returned to state courts a slew of brain-cancer suits seeking to force industry to supply consumers with headsets as a safeguard against any danger from cell-phone radiation. But one does not have to read between the lines to see that Blake begrudgingly suspects she has been legally backed into a corner by trial lawyers on whether health suits are pre-empted by federal law.
For sure, Blake believes her dismissal of five class-action headset suits on federal pre-emption grounds was the right call. Thus, footnote 1 right smack on page 1 of Blake’s Feb. 15 remand decision is instructive and telling.
“Whether or not the government’s proposed amicus brief expressing the FCC’s view on pre-emption would have affected the ruling in Pinney [lead case of the five class-action headset suits], it is unfortunate the 4th Circuit did not have the opportunity to consider the FCC’s position,” Blake wrote.
Blake raises an interesting question. Then-Acting Solicitor General Paul D. Clement on April 11, 2005, approved FCC intervention during the rehearing phase of the appeals court case. But it was too late. The next day the 4th Circuit denied industry’s rehearing request.
Had Clement been able to get the FCC’s views before the 4th Circuit when it was deciding whether to rehear industry’s headset appeal, would we be looking at a drastically different legal landscape in health litigation? Hard to say. Had the 4th Circuit ruled in industry’s favor-or to a lesser extent had the Supreme Court decided to take the headset case-the cell-phone industry might be looking pretty right now. But that is assuming the FCC’s pre-emption views would have carried the day in court.
Why the FCC is interested in jumping into messy health litigation is a different story.
