RICHMOND, Va.—The mobile-phone industry last week appeared to dodge another legal challenge to government radiation limits for handsets and towers, but found itself looking at the possibility of seeing headset litigation resurrected.
A federal appeals court judge Friday cast doubt on whether U.S. District Judge Catherine Blake was within the law in dismissing five-class action lawsuits seeking to force cellular carriers to supply consumers with headsets to reduce any risk of injury from radiation emitted by mobile phones.
The wireless industry can ill-afford to have the 4th Circuit overturn Blake in the headset litigation. In 2002, Blake rejected an $800 million brain-cancer lawsuit against Motorola Inc. and other telecom companies. But in July, she shocked industry by remanding to the District of Columbia Superior Court six brain-cancer cases against wireless firms and industry trade associations.
It was not so long ago that it appeared the $80 billion mobile-phone industry and its skilled lawyers had put the health controversy to bed. But here it is again.
Industry conceded it is vulnerable in the headset litigation. “It’s a very close federal question,” said Michael Altschul, general counsel of the Cellular Telecommunications & Internet Association, following last Friday’s oral argument here.
The legal battle before the 4th U.S. Circuit Court of Appeals had former independent counsel Kenneth Starr arguing for the cellular industry against a New Orleans attorney working with the firm of high-powered trial lawyer and Baltimore Orioles owner Peter Angelos.
Fourth Circuit Judge J. Michael Luttig—among those mentioned as a candidate for the U.S. Supreme Court should President Bush be re-elected and need to fill vacancies on the high court—pressed both plaintiffs’ lawyer Michael Allweiss and Starr on whether Blake correctly ruled last year that federal law trumped the state claim at issue or whether she had erred.
Luttig saved his toughest questioning for Starr, who forcefully argued there was a substantial federal question justifying pre-emption of the class-action headset lawsuits last year.
Starr said Congress and the Federal Communications Commission established a federal regime of uniform technical standards that enable the nation to have wireless communications and keep wireless consumers safe.
Luttig disagreed. “I don’t see how this impedes the federal question. I think this is the argument that the district court fell prey to,” Luttig told Starr.
Luttig said Blake was intimidated by the “blizzard of information” on federal statutes that industry presented to the Baltimore judge before she tossed out the five lawsuits, calling them a disguised attack on federal law.
Starr argued the federal question was unavoidable, adding U.S. governmental agencies are clear and unequivocal on the wireless health issue. “There are no known risks,” said Starr. Starr pointed out that a Web site constructed by the FCC and the Food and Drug Administration at the direction of Congress states there is no need for headsets. Luttig responded that he read the FCC-FDA statement slightly differently.
Starr, citing legal precedent, persisted in stating federal pre-emption takes precedent in the case. But Luttig did not appear to buy Starr’s arguments.
Verbal exchanges between the two men grew testier as the oral argument progressed, with Starr appearing to become increasingly frustrated and angered that he was not scoring points with Luttig. At times, Starr, who began crisp, confident and deliberate in making industry’s case, even appeared to lose his composure. But he seemed to catch himself and quickly recover at those moments. The former federal judge’s presence in the courtroom was palpable and pronounced.
But in the end it was Luttig who carried the day. The other two federal appellate judges, M. Blane Michael and Jackson L. Kiser, injected commentary here and there, but were mostly silent during oral argument.
Starr warned the 4th Circuit judges that if Blake is overturned, there would be a patchwork of laws throughout all 50 states, some requiring headsets and others shields or even helmets.
“We think the district court was correct and hope this court will agree,” said Starr.
Luttig did not let Allweiss off the hook, however. “Is there a federal question that must be resolved?” asked Luttig.
“Of course, there’s not,” replied Allweiss. Allweiss said he was not challenging the federal standard governing human exposure to mobile-phone radiation. He said the state claim was legitimate. “There is [biological] cellular disruption. Individuals have the right to protect themselves from unwarranted radiation,” said Allweiss.
In health litigation to date, plaintiff and industry lawyers each have pointed to studies that they say support their arguments. The mobile-phone industry has yet to lose a health-related lawsuit.
Government health officials here and overseas say scientific evidence to date does not point to a health risk from mobile phones, but they add more research is needed before the safety of wireless devices can be assured.
The five headset lawsuits originally were filed in various state courts, but later consolidated in U.S. District Court in Baltimore and assigned to Blake.
Starr, who headed the Whitewater and Monica Lewinsky probes (the latter culminating with the House impeachment of President Clinton) and who two years ago joined an all-star legal team that challenged the constitutionality of Congress’ campaign finance law, is relatively new to the headset litigation. But he has never been far from the action.
Starr filed a notice of appearance Aug. 31 on behalf of several wireless carriers. Starr works at the Washington office of the Kirkland & Ellis law firm, which has successfully defended Motorola Inc. in health-related litigation in recent years.
The wireless industry appeared to fare better earlier last week in a different federal appeals court.
Last Monday, a three-judge appeals court panel in the nation’s capital voiced skepticism at arguments that federal telecom regulators violated the law by failing to write rules to protect the public from possible heath risks posed by radiation-emitting cell phones and towers.
Judge Harry Edwards, chief judge of the U.S. Court of Appeals for the District of Columbia Circuit, said it looked like the plaintiff—the EMR Network—wanted to force the FCC to open a new rule-making proceeding. Otherwise, he said, the case made no sense.
Judges Merrick Garland and Stephen Williams said legal precedent cited by the EMR Network in support of its appeal were at odds with the facts in the case. The judges also said the law gives the FCC broad discretion in crafting cell-phone and tower emission guidelines. A federal appeals court in New York upheld FCC RF radiation exposure guidelines in 2000.
Whitney North Seymour Jr., co-founder of the Natural Resources Defense Council and representing the EMR Network on a pro bono basis, aggressively challenged the judges’ view of the case.
Seymour said the National Environmental Policy Act and other federal statutes impose on the FCC a continuing responsibility to review rules governing environmental impact of RF radiation.
Seymour pointed to the explosion in wireless communications in society as a major change in the environmental landscape. “Tell the commission to look at the facts,” said Seymour. “Here we have agency saying, `We’re not going to look at it.’ “
FCC lawyer Nandan Joshi said the agency monitors the science on non-ionizing radiation and works with other federal agencies, as well as with the RF safety standard-setting body.
