WASHINGTON-The Federal Communications Commission’s decision to back the wireless industry in health litigation against mobile-phone companies has become a flashpoint in six brain-cancer lawsuits awaiting a key ruling by the Superior Court of the District of Columbia.
The FCC in November sought court permission to participate in the litigation, particularly with respect to the agency’s views on the pivotal federal pre-emption issue at the heart of industry’s motion to dismiss the cancer suits. The industry is fighting mightily to prevent the six lawsuits from moving forward in a venue considered less friendly than federal court. In recent years, many health-related lawsuits have circled back to state courts around the country. The turnabout in jurisdiction potentially increases the mobile-phone industry’s legal exposure on the health front.
D.C. Superior Court Judge Cheryl M. Long, noting a heavy workload prevented her from deciding the FCC issue sooner, ruled March 8 she would accept the FCC’s amicus brief and make it part of official record.
“The fundamental legal points embraced in the [industry’s] motion to dismiss could be illuminated by input from the agency,” stated Long in a four-page order. “The participation of the agency is a matter of common sense, and may aid the court in parsing the issues. While it is unfortunate that the agency did not seek leave to participate in the case in time to present an oral argument, nothing about the amicus brief has caused or will cause delay in the adjudication of the motion to dismiss. The court has been working on its opinion, and the court’s analysis of the arguments is not yet complete.”
The six brain-cancer suits originally were filed in the D.C. Superior Court, but subsequently consolidated and transferred to a federal court in Maryland.
In 2004, U.S. District Judge Catherine Blake of Baltimore-who threw out an $800 million brain-cancer suit for inadequate scientific evidence in 2002 and ruled in 2003 five class-action headset suits were pre-empted by federal law-remanded the six brain-cancer suits to the D.C. Superior Court. The wireless industry responded by asking the D.C. Superior Court to throw out the cases on federal pre-emption grounds. Industry’s dismissal motion, now officially backed by the FCC, is now ripe for a ruling-one with very high stakes.
The FCC’s interest in entering wireless health litigation is a new development. The mobile-phone industry has been successfully dodging wireless health suits for more than a decade. In all that time, the FCC did not seek to become embroiled in health litigation other than when it was a defendant in suits that challenged commission guidelines governing human exposure to radio-frequency radiation emitted by devices associated with regulated industries. The FCC did seek-unsuccessfully-to have its federal pre-emption views heard by a panel of the 4th U.S. Circuit Court of Appeals in headset litigation.
Representing the wireless industry in recent health litigation is the powerhouse communications law firm of Wiley, Rein & Fielding L.L.P. Before becoming chairman of the Republican-led FCC, Kevin Martin was an attorney at Wiley Rein.
The FCC’s Office of General Counsel has declined to explain its dramatic shift in litigation strategy regarding combustible wireless health litigation.
RCR Wireless News in December filed a Freedom of Information Act request with the FCC, seeking copies of documents, e-mails and correspondences with outside parties and other agencies in connection with recent wireless health suits. The FCC issued a Feb. 9 decision refusing on various grounds to release copies of communications between FCC lawyers and Wiley Rein attorneys on wireless health litigation.
In recent years, the wireless industry has lost legal ground with respect to its federal pre-emption defense.
In addition to Blake’s remand of the six brain-cancer suits to the D.C. Superior Court, the 4th U.S. Circuit Court of Appeals-in arguably the biggest legal blow to industry to date-overturned Blake’s headset pre-emption ruling in 2005. The U.S. Supreme Court declined to review the 4th Circuit decision. Plaintiffs in the headset cases, many of which are back in state court, want to force wireless carriers to supply consumers with headsets to reduce their exposure to phone radiation that the FCC and Food and Drug Administration proclaim is safe.
The headset suits, while claiming health risks from mobile phones, do not allege anyone has been actually injured. The brain-cancer suits do. As such, the latter suits are potentially far more explosive and problematic for the mobile-phone industry.
Attorneys for the six individuals who claim cell-phone use caused their brain tumors criticized the FCC’s amicus brief as legally unsound and contradictory on the question of federal pre-emption.
“The FCC has the audacity to suggest that its self-serving view should somehow carry more weight and authority than the 4th Circuit Court of Appeals’ decision … or even the legislature,” plaintiffs’ lawyers told the D.C. Superior Court. “This is simply not the case, and the FCC’s view is utterly wrong as both Judge Catherine Blake of the United States District Court for the District of Maryland in these cases and the 4th Circuit in Pinney [headset cases] have definitively determined.”
The FCC, plaintiffs’ lawyers point out, has acknowledged having neither primary jurisdiction nor health and safety expertise on the question of biological effects from cell-phone radiation. Moreover, they argue the FCC previously ruled the telecom act does not pre-empt state contract, tort, fraud or consumer-protection laws.
“The FCC and [industry] defendants have completely mischaracterized the claims raise in plaintiffs’ complaints in their transparent joint attempt to cloak the cell-phone industry with absolute immunity in direct contravention of congressional mandate and the 4th Circuit Court of Appeals’ decision in Pinney,” plaintiffs’ lawyers stated. “Indeed, the instant cases do not seek, nor do they challenge, the federal regulatory scheme governing RF emissions. In fact, the instant cases do not even seek the implementation of a technical standard or more stringent RF emission standards. Rather, the instant cases consist simply of state law tort claims regarding a product that was sold into the marketplace that caused extensive physical damages to the plaintiffs herein.”
The plaintiffs, represented by the Michigan law firm of Morganroth & Morganroth P.L.L.C., chided the FCC for not surprisingly making “making many of same-albeit unfounded-arguments regarding pre-emption as the defendants” in the headset and brain-cancer cases.
Meantime, debate in the scientific community over the safety of cell phones continues.
A newly published study has found an increased risk of malignant brain tumors for heavy cell-phone usage, results that tend to coincide with some recent research on long-term human exposure to radiation-emitting wireless handsets.
“The main shortcoming of most of the so-far published studies on the association between cellular telephones and brain tumors is too short a latency period. Thus, both longer latency period and high cumulative number of hours for use are necessary to get a more precise estimate of the risk,” said Swedish authors Lennart Hardell, Michael Carlberg and Kjell Hansson Mild in the journal International Archives of Occupational and Environmental Health.
The new scientific data is unlikely to prompt government health authorities to issue warnings to consumers, since policymakers remain largely steadfast in their conviction that science to date does not point to cell phones as a potential health hazard. At the same time, the Swedish research is apt to give added weight to calls for continued research by government officials who have stopped short of guaranteeing mobile handsets are safe under all circumstances.
“The FDA continues to monitor studies looking at possible heath effect resulting from exposure to radio frequency energy,” the agency said. “The FDA also plans to convene a meeting in the near future to evaluate research conducted to date in this area and identify gaps in knowledge that warrant additional research.”