WASHINGTON-The wireless industry scored big legal victories on the health front last week as the
Supreme Court put strict limits on the admissibility of expert testimony in product liability cases and declined to review
a lower court’s dismissal of a class-action lawsuit against Motorola Inc. for not warning consumers about alleged
dangers from mobile phone radiation.
The high court’s 8-1 ruling potentially has huge implications for mobile
phone manufacturers, like Motorola, which have faced a slew of lawsuits since 1993 on whether mobile phones cause
brain cancer or other diseases.
At the core of the controversy are conflicting claims from experts-scientific and non-
scientific alike-about what radio-frequency research proves or disproves regarding the safety of mobile phones.
In
last week’s ruling, the Supreme Court said the same strict standards that govern scientific testimony also should apply
to testimony of non-scientific witnesses.
Under current law, the criteria used to determine the reliability of expert
scientific testimony includes level of testing and peer review, error rates and acceptability in the relevant scientific
community.
“We conclude that the trial judge must have considerable leeway in deciding in a particular case
how to go about determining whether particular expert testimony is reliable,” the high court stated.
Thus, a
federal trial judge has the discretion to throw out testimony of non-scientific expert witnesses if the judge determines
they have not met the strict standard used for judging the reliability of testimony from scientists.
None of the
lawsuits against wireless manufacturers and carriers have succeeded to date, in part because of the failure of plaintiffs
to secure expert scientific testimony backing mobile-phone cancer claims.
A new wave of product liability lawsuits
against manufacturers and carriers could come, though, if the Federal Communications Commission loses a challenge
to its 1996 radio-frequency radiation exposure standard for mobile phones.
Oral argument in Cellular Task Force vs.
FCC is scheduled for April 5 in federal appeals court in New York City.
Health advocates point to studies in the
United States (the University of Washington’s Dr. Henry Lai) and by others overseas that have found DNA breaks and
higher rates of cancer in rats exposed to mobile phone-like RF radiation.
The wireless industry has tended to
discount RF research that health advocates say point to positive findings, criticizing it as faulty, incomplete and lacking
peer review. Sometimes research embraced by health advocates is simply characterized as “junk
science.”
In addition, the industry points out that federal health and safety regulators had major input in
crafting the FCC RF standard and that the Food and Drug Administration-which has primary jurisdiction over mobile
phone safety-has not seen fit to pull phones off the market.
But critics of the FCC’s RF standard argue it covers only
thermal, or heating, effects from mobile phones and is silent on any non-thermal bioeffects from handsets that users
press against their heads to make and receive calls.
Norm Sandler, director of global strategic issues for Motorola,
said the firm was gratified by the Supreme Court’s rejection of an appeal of an Illinois state court decision that ruled
federal law protects wireless phone makers from lawsuits filed in state courts involving charges of fraud and breach of
warranty.
The lawsuit was brought by Frank Schiffner, who used to own a Motorola mobile phone and who argued
Motorola should have informed him and others about potential health risks from phones.
Earlier this month, Illinois
state appeals court Judge Ellis Reid dismissed on summary judgment a different lawsuit against Motorola, Ameritech
Mobile, Wireless Technology Research, Cellular Telecommunications Industry Association and Epidemiology
Resources Inc.
The plaintiffs in Busse et al. vs. Motorola Inc. et al. contended cell phone subscriber privacy rights
were violated in connection with an epidemiology study conducted by Dr. Kenneth Rothman for WTR. CTIA has
funded the WTR cancer research project to the tune of $25 million for the past five years.
