Industry continues legal dance around health lawsuits

By Jeffrey Silva
RCR Wireless News

Jun 16, 2006

WASHINGTON-Despite legal setbacks in court jurisdictional rulings, including the Supreme Court's refusal to review a 4th Circuit headset ruling that rejected industry's federal pre-emption arguments, headset and brain-cancer litigation have failed to gain traction in state and federal courts.

The reasons industry has been able to absorb blows in court without significant consequence vary, though mobile-phone carriers continue to have legal exposure on a health issue that may always dog cell-phone companies in one way or another as long as differences remain in the scientific community.

Government health officials insist science does not point to a health risk from mobile phones, but they refuse to dismiss an association entirely in light of studies that suggest a cancer link from long-term cell-phone use. As such, they support more research; most of the work is being conducted in Europe.

Still, the wireless industry has a virtually unblemished record in wireless health suits and could be on the verge of closing out another chapter in cell-phone litigation without sustaining serious legal or monetary damage. On the other hand, the legal bills for defending health lawsuits are substantial, particularly in light of insurance companies' reluctance to indemnify wireless companies against loss or damages in litigation.

Industry, though, is not yet in the clear.

Six brain-cancer suits are pending in the Superior Court of the District of Columbia. About 18 months have passed since the wireless industry filed a motion to dismiss the charges on federal pre-emption grounds. In March, the court allowed the Federal Communications Commission to intervene, accepting an agency brief supporting industry's claim that the 4th Circuit erred in ruling headset cases were not pre-empted by federal law and that the D.C. Superior Court should not be guided by that ruling in deciding whether to dismiss the brain-cancer cases.

Though Judge Brook Hedge oversees the six cases, the task of ruling on industry's motion to dismiss is up to Judge Cheryl Long.

Long's aides have added confusion to the already extended period the judge has taken in deciding whether the lawsuits should stay or go. When asked recently for a status report on the case, one Long aide said the motion to dismiss was under review by Long. Yet, another Long aide last week said the judge no longer had the case. A staffer for Judge Hedge said he believed it was still up to Long to rule on the motion to dismiss.

Meantime, a brain-cancer lawsuit remanded to the Superior Court of California in San Diego County is just now getting back on track.

A brain-cancer case originally filed in Florida appears to be in jurisdictional and administrative limbo.

The same is largely true for class-action lawsuits seeking to force carriers to supply consumers with headsets to protect them against any harmful effects of mobile phone low-level radio frequency radiation. One is gone.

The lead headset case of the five class-actions-Pinney et al. vs. Nokia Inc. et al.-was dismissed without prejudice April 6 by U.S. District Catherine Blake in Baltimore. However, the circumstances surrounding the dismissal of Pinney are different than when Blake threw out all five class-action headset suits on federal pre-emption grounds in March 2003. This time around, Pinney agreed with industry defendants to have the headset case dismissed. Pinney has had the option since then of re-filing the suit, but has not done so to date.

The unexpected return of the Pinney case to Blake was the result of an ironic turn of events that played out after the Supreme Court last October decided not to block Pinney from being remanded to Maryland state court. After plaintiffs added L.G. Electronics Mobilecomm U.S.A. Inc. as a defendant in two headset suits, lawyers for the South Korean electronics giant got the cases removed to federal court in February.

LG it turned out had removal rights under the Class Action Fairness Act of 2005 because the litigation commenced after CAFA's effective date.

It is unclear whether the Baltimore law firm of Peter Angelos, lead counsel in the headset class actions, has lost interest in wireless health litigation. The law firm did not return a call for comment. The Angelos legal team represented Christopher Newman, whose $800 million brain-cancer lawsuit against Motorola Inc. and others was rejected by Blake for lack of scientific evidence in 2002.

The D.C. Superior Court's Hedge also is presiding over a lawsuit filed by Sarah Dahlgren in which it is alleged mobile-phone companies failed to make consumers aware of possible health risks and the lack of consensus among scientists on wireless health. Last June, Blake remanded the Dahlgren case to the D.C. Superior Court.
Industry lawyers said Dahlgren is overreaching and that her lawsuit should be dismissed on numerous grounds.

"She names eight defendants but fails to identify any who manufactured or sold her wireless phones," industry attorneys told Hedge in a filing last month. "She claims defendants misrepresented the safety of wireless phones, but asserts that she need not allege or prove wireless phones are, in fact, unsafe...This truly novel approach is inconsistent with District of Columbia and Maryland law."

Earlier this month, Dahlgren's attorneys shot back. "Plaintiff's allegations demonstrate that consumers received a wireless phone that was-in terms of safety risk and associated attributes-different from and less than what defendants represented," they argued. "Defendants attempt to limit the scope of product `performance' to mechanical functionality is simplistic. Moreover, performance issues are factual in nature and should be explored in this litigation, not decided on a motion to dismiss."

Milt Bowling
Clean Energy Foundation
Phone: 1 888 436 2152
or 604 436 2152 in Vancouver
Fax: 604 436 2154


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