Plaintiff pushes court on ruling in headset case

WASHINGTON-Mobile-phone companies asked U.S. District Judge Catherine Blake to refer jurisdictional questions to the Federal Communications Commission in connection with brain-cancer and headset lawsuits in Maryland federal court, a request that builds on emerging agency activism in support of the wireless industry in major health litigation.
Wireless defendants pointed to a 2005 Supreme Court ruling and an FCC brief in a D.C. Superior Court case involving six brain-cancer lawsuits as justification for halting proceedings in Louther v. AT&T Corp. and Farina v. Nokia Inc. et al and allowing the telecom agency to be heard on federal pre-emption questions.
“Such a referral will allow the agency to exercise its technical expertise and its authority to explain its federal communications policies and regulatory plan in a manner that could eliminate judicial confusion and conflicting judicial decisions on a critical component of the pre-emption inquiry: the extent to which state-law actions such as these interfere with those policies and plan,” wireless firms told Blake.
The wireless industry, which has fended off health suits on scientific and jurisdictional grounds in the past, is increasingly turning to the FCC in response to a string of legal defeats in recent years in which federal courts ruled brain-cancer and headset litigation is not pre-empted by federal law.
For various reasons, having wireless health suits heard in state court rather than federal court increases legal exposure for the $100 billion wireless industry. The situation is perhaps most acute for the wireless industry in the D.C. Superior Court, where it is anxiously awaiting word on whether Judge Cheryl M. Long grants the industry’s two-year-old motion to dismiss six brain-cancer lawsuits. In each case, plaintiffs are seeking $25 million in damages plus $100 million in punitive damages.
Despite failing to convince the Supreme Court to review last year’s 4th Circuit decision-which effectively reinstated five-class action suits to force cellular carriers to supply consumers with headsets to reduce human exposure to phone radiation-most of those lawsuits have fallen by the wayside.
Plaintiffs argue time has long past to return the remaining Farina headset suit to Pennsylvania state court.
“Respectfully, enough is enough,” Farina’s lawyers told Blake. “Through their machinations, defendants have forestalled any forward progress in this case for half a decade. Plaintiff and the class he seeks to represent have suffered severe prejudice from these interminable delays. The time has come once and for all to return this case to its proper venue . so that the proceedings there can be allowed to run their course without further interference or disruption by defendants in a case over which federal jurisdiction is manifestly lacking.”
Government authorities claim science does not point to a health risk from mobile phones, but they refuse to dismiss an association entirely in light of some studies that suggest a cancer link from long-term cell-phone use. As such, they support more research. Many scientific studies are being conducted in Europe.
The wireless industry has more to worry about than just the headset and brain-cancer lawsuits in Blake’s court and the six brain-cancer cases in D.C. Superior Court. The latter court is also home to a remanded lawsuit filed by Sarah Dahlgren against Audiovox Communications Corp., Motorola Inc., Nokia Corp., Ericsson Inc., Kyocera Wireless Corp., Qualcomm Inc., Samsung Telecommunications America and wireless industry trade association Cellular Telecommunications & Internet Association (now CTIA). Dahlgren alleges mobile-phone companies failed to make consumers aware of possible health risks and the lack of consensus among scientists on wireless health risks. A California state court is now handling a brain-cancer suit that once resided in Blake’s court.
Blake, who tossed out an $800 million brain-cancer suit for inadequate scientific evidence in 2002 and rejected a batch of class-action headset suits months later on federal pre-emption grounds, was once a viewed as the industry’s legal champion. However, the Maryland judge subsequently returned a slew of health-related suits to state court.