Mobile Phone Makers Score Big Win in Radiation Suit

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Martina Barash in Washington

By Bruce Kaufman

Oct. 20 — The mobile phone industry scored a major victory in litigation tying the use of mobile phones to brain tumors as Washington, D.C.'s top court adopted a new test that could bar almost all of the plaintiffs’ scientific evidence ( Motorola, Inc. v. Murray , 2016 BL 348817, D.C. en banc, No. 14-CV-1350, 10/20/16 ).

The viability of at least 13 suits over the dangers of long-term exposure to mobile-phone radiation is seriously jeopardized by the court’s Oct. 20 decision to abandon its century-old test for evaluating scientific testimony in favor of the much more widely adopted federal rule.

The case has been closely watched by a broad array of business and medical groups, which tried to steer the ruling in their favor.

The industry trade association, CTIA, said the ruling was “significant” because it backed the trial judge’s finding that “no scientist could credibly say that cell phones cause the alleged harm.”

“As the trial judge found, ‘virtually all world-wide governmental health agencies that have studied the question have concluded’ that the science does not support plaintiffs’ claims,” the group said in a statement.

But plaintiffs’ counsel, Jeffrey B. Morganroth of Morganroth & Morganroth in Birmighman, Mich., disputed CTIA’s characterization of the court’s ruling and told Bloomberg BNA that any suggestion that the ruling will shut down the litigation is overblown.

He said he was “confident” that the plaintiffs will be able to satisfy the Federal Rule of Evidence 702, the federal standard for expert testimony, and that the litigation will proceed.

The plaintiffs had been proceeding with the standards that had long been in place, and they will now work with their expert witnesses on testimony that will comply with the new rule, he said.

Defense attorneys Eric Lasker and Joe Hollingsworth, with Hollingsworth LLP in Washington, D.C., told Bloomberg BNA that the decision will reverberate beyond the parties.

The attorneys, who represented the U.S. Chamber of Commerce, the National Association of Manufacturers, the National Federation of Independent Businesses, and International Association of Defense Counsel in a brief in support of the mobile phone makers, said the decision was a “victory for the administration of sound justice in D.C. courts.”

The D.C. Court of Appeals has “greatly improved the quality of the evidence upon which D.C. juries will base their verdicts and has prevented litigants from dumping a barrage of unreliable and misleading scientific evidence on a jury,” the attorneys said.

Suits Go Back to 2001

The suits here were filed as far back as 2001 in the District of Columbia Superior Court and named as defendants Motorola Inc., Verizon Wireless Inc., AT&T Inc., Cingular Wireless LLC, and others.

The plaintiffs or their representatives (many of the plaintiffs have since died) allege that their use of hand-held mobile phones caused brain cancer, tumors, and other types of illness and injury.

They blamed radio-frequency emissions, alleging that the defendants were aware of studies showing that radio-frequency radiation can cause pre-cancerous tissue destruction. They accused the companies of suppressing the studies, manipulating research, and pressuring government bodies.

Fierce Battle Over Evidentiary Standards

In 2014, a trial court, in a consolidated proceeding, heard four weeks of evidence about whether mobile phone radiation causes brain tumors.

The judge heard from eight plaintiffs’ experts and four defense rebuttal experts. He reviewed 280 exhibits, thousands of pages of documents, and hundreds of pages of legal briefs filed by both sides.

The judge determined that whether most, if not all, of the plaintiffs’ causation evidence was admissible in court depended on the evidentiary standard used to evaluate the reliability of the evidence.

Under the former test, adopted in 1923, the controversial evidence would largely be admitted.

But under the standards set forth in Federal Rule of Evidence 702, most of the proof would likely be rejected as scientifically invalid.

Here, Washington, D.C.'s top court, in a ruling that involved all seven of the court’s judges, unanimously sided with the mobile phone carriers, and adopted the federal rule.

Old Test Was `Outdated.’

Paul Rothstein, a professor of Law at Georgetown University, supported the court’s decision to abandon the old evidence test.

The former evidentiary test was “beset with amibiguities and was outdated for the modern scientific world,” he told Bloomberg BNA,

The new standard “aims at the right target by getting judges to evaluate what is being said by experts, and gives the judges some useful guidance in eliminating junk science,” he said.

Defense attorney Kamil Ismail, with Goodell, DeVries, Leech & Dann in Washington, D.C., agreed.

Ismail, who filed a brief in the case backing the industry defendants for the D.C. Defense Lawyers’ Association, said that “while the plaintiffs will have an opportunity to conduct some further discovery and briefing, this ruling by itself has the potential to decide the outcome of the case.”

And the ruling will likely have impact beyond this case, he added.

“In the past, trial judges in D.C. courts have been constrained in their ability to evaluate the reliability of expert testimony,” he said. But no longer will that be the case, he said.

FCC Limits and Berkeley Litigation

Outside of battles between experts over causation, another significant focus in mobile-phone radiation disputes has been whether federal law blocks state-law suits and state or local regulations.

The Federal Communication Commission adopted “specific absorption rate” (SAR) limits for mobile phones in 1996 and this standard has been relied on by a number of courts to find radiation claims barred.

In 2009, Washington, D.C.'s top court allowed some claims to proceed despite the FCC limit.

Other recent litigation over mobile phones has centered on a local law in northern California.

In 2015, the City of Berkeley passed an ordinance requiring mobile phone retailers to warn customers that phones carried in pants, shirt pockets or bras while turned on and connected to a wireless network may exceed the federal radiation limits.

The wireless telecommunication industry fought back, obtaining a partial preliminary injunction from the U.S. District Court for the Northern District of California in September 2015 ( CTIA - The Wireless Ass’n v. City of Berkeley, 139 F. Supp. 3d 1048 (N.D. Cal. 2015)).

But even though it ruled partly in favor of the industry association, that court said some health risks had been shown.

The court looked to the causation question, though not in depth, in assessing the First Amendment implications of the ordinance. It asked whether the ordinance was rationally related to, and actually furthered, a legitimate government interest.

The court said the necessary connection was there, pointing to the science behind the FCC rule on SAR levels.

“While there is scientific uncertainty as to the relationship between SAR levels and the risk of, e.g., cancer, and there is scientific debate about whether nonthermal as well as thermal effects of RF radiation may pose health risks, there is a reasonable scientific basis to believe that RF radiation at some levels can and do present health risks,” the federal court said.

“The SAR limits were established by the FCC in the interests of safety in view of the potential risks of RF radiation exposure,” the court said.

The district court eventually dissolved the preliminary injunction in January 2016 after Berkeley addressed the court’s preemption concerns by removing some language from the ordinance.

The industry association has appealed to the Ninth Circuit.

With assistance from Martina Barash in Washington.

To contact the reporter on this story: Bruce Kaufman in Washington at bkaufman@bna.com

To contact the editor responsible for this story: Steven Patrick at spatrick@bna.com

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