WASHINGTON-The mobile-phone industry-and plaintiffs with health-related lawsuits against it-stand at a critical crossroads. Various judges are moving closer to issuing rulings on whether such legal challenges should go forward or fall by the wayside, as so many have since the cell phone-brain cancer link was first alleged more than a dozen years ago.
The history of the health controversy has been one of highs and lows for industry, plaintiffs’ lawyers and scientists worldwide, with each new study and legal decision prompting elation or disappointment.
Despite major legal setbacks on jurisdiction in recent years, the cellular industry has weathered every storm virtually unscathed. What harm it has incurred largely has been limited to the hefty legal bills needed to defend health lawsuits and to fight insurance companies unwilling to cover attorney costs or possible damages.
Moreover, industry has seen enough in the past decade to know a new health lawsuit is only a day away. That legal-and by extension economic-threat is potentially serious enough to list as a business risk in companies’ Securities and Exchange Commission filings.
That is why so much is riding on whether a judge in the Superior Court for the District of Columbia allows six brain-cancer lawsuits to proceed or dismisses them on federal pre-emption grounds as requested by industry and Federal Communications Commission lawyers. Five of the six suits date back to February 2002, having been filed during a week of expert scientific court testimony that became the basis for U.S. District Judge Catherine Blake’s dismissal of an $800 million lawsuit lodged by Maryland neurologist Christopher Newman.
It is approaching two years since the cellular industry asked the D.C. Superior Court to throw out the six brain-cancer lawsuits, and there appears to be growing uneasiness in the court and elsewhere about the length of time it is taking to rule on wireless companies’ request to reject the cases.
Legal wranglings
Yet, on the other hand, much has transpired on the legal front during the past two years. In March 2005, a divided 4th U.S. Circuit Court of Appeals in Richmond, Va., reversed Blake’s rejection of five class-action suits seeking mandatory mobile-phone headset distribution as a precautionary measure against radiation harm. The move allowed the lawsuits to move forward. Industry failed to convince the Supreme Court to review the case, but it was not as harsh a defeat as it seemed at the time since several headset cases have subsequently imploded. Still, at least two headset lawsuits remain in play.
After the 4th Circuit and Supreme Court rulings, lawyers representing the six brain-cancer plaintiffs were armed with ammunition to counter industry efforts to have the lawsuits tossed on federal pre-emption grounds. Industry and FCC attorneys contend the high court’s refusal to review the 4th Circuit decision is not precedential and that the D.C. Superior Court is not bound by an appeals court decision deemed by industry and government lawyers as flawed.
Though the six brain-cancer lawsuits are assigned to Judge Brook Hedge, another judge-Cheryl Long-will decide whether to grant or reject industry’s motion to throw them out. If Long denies industry’s dismissal request, the six brain-cancer lawsuits would return to Hedge.
Under such a scenario, the brain-cancer lawsuits likely will be subject to a scientific evidentiary hearing. However, the standard in the D.C. Superior Court for determining whether health cases move to trial are less stringent than those in federal courts.
Another case ripe for a key ruling in the D.C. Superior Court alleges carriers failed to make consumers aware of possible health risks and the lack of consensus among scientist on any cancer link. Industry has filed to have the case dismissed. This case also is assigned to Hedge, who will decide whether that case proceeds.
Meantime, in Baltimore, Blake late last Friday was scheduled to hold a teleconference with counsel on how to proceed with a separate brain cancer case and two headset suits. Clear across the country, legal maneuvering has begun on still another brain-cancer suit Blake remanded to the Superior Court of California in San Diego County.
Once the jurisdictional issues get sorted out any remaining cases would turn on whether there is sufficient scientific data to support allegations of health risks from cell phones.
