WASHINGTON-In addition to new litigation alleging that mobile phones cause brain cancer, the wireless industry also faces possible Supreme Court litigation over government exposure standards and a class-action lawsuit in New Orleans that claims manufacturers failed to take steps to minimize consumer exposure to radio-frequency radiation.
The defendants named in the New Orleans lawsuit include Nokia Corp., Westinghouse Corp., NEC America Inc., L.M. Ericsson, Motorola Inc., Sprint Corp., Audiovox Corp., LGIC Corp., Nextel Communications Inc., Panasonic Corp., Philips Corp., Qualcomm Inc., Samsung SDI Co. Ltd. and Samsung Electronics, Sanyo Corp., Sony Corp., AT&T Corp., Cellular Rentals Inc., Planet Cellular Communications Inc., Visitor Cellular L.L.C., BellSouth Mobility and Radiofone Inc.
Elsewhere, a group of parties in a dispute with the Federal Communications Commission’s RF safety guidelines have asked the U.S. Supreme Court to overturn a ruling by a New York federal appeals court that upheld FCC rules.
Lawyers representing the New Orleans class, which has not been certified, contend manufacturers and distributors should have supplied headsets as standard equipment with mobiles phones in light of uncertainty about health risks.
“The manufacturers failed to incorporate the said economically feasible, reasonable and safer design as a standard feature in their cell phones, thus, unnecessarily continuing to expose users to potentially substantial risks to their health while failing to undertake prudent steps necessary to eliminate the risk,” the lawsuit stated.
The cellular industry, pointing to recent studies, insists mobile phones pose no health risk. The Food and Drug Administration, claiming there is no reason for alarm but aware of studies with positive or inconclusive results, says scientific data is inadequate to conclude mobile phones do not cause health risks.
The class action suit, filed in late May in the Civil District Court for the Parish of Orleans, is seeking relief in the form of compensation covering the cost of a headset-which the plaintiffs anticipate will cost between $30 and $100-and medical monitoring for the potential development of diseases or illnesses caused by mobile phones.
The defendants, citing diversity of citizenship and claiming the defendants were fraudulently joined, got the case moved into federal court. Lawyers for the class-action suit are currently seeking to have the case sent back to state court.
The same struggle, with the same legal doctrines in play, is ensuing in Baltimore, where Christopher Newman, a 41-year-old neurologist, has alleged-in an $800 million suit-that his malignant brain tumor was caused by his mobile phone.
The defendants in that case are Motorola, Verizon Communications Inc., SBC Communications Inc., the Cellular Telecommunications Industry Association and the Telecommunications Industry Association. Joanne Suder, the lawyer representing Newman, plans to file other lawsuits alleging personal injuries-like brain cancer-from cell phone usage.
In the next week or two, Suder will file such a suit on behalf of a former Motorola technician who claims his malignant brain tumor was caused by mobile phones he tested for the Schaumburg, Ill., manufacturer for the past 10 years.
Alston & Bird, a large Atlanta law firm that specializes in product liability litigation management, has been involved behind the scenes in the Baltimore and New Orleans lawsuits.
Alston & Bird’s involvement in mobile phone lawsuits has raised speculation about whether the wireless industry is crafting a national litigation defense strategy in response to a resurgence in health-related mobile phone lawsuits.
Jane Thorpe, who heads Alston & Bird’s product liability practice, has played a key role in recent mobile phone litigation.
Thorpe, whose firm drafted the wireless industry’s request to move the Newman suit from state court to federal court in Baltimore, declined repeated requests to identify other clients involved in mobile phone lawsuits.
Last week, RCR Wireless News confirmed that Alston & Bird is assisting Nokia in the New Orleans lawsuit. The law firm said it acts as science counsel in product liability cases, noting it is currently involved in several nationwide medical and pharmaceutical cases. “Through this work,” the firm states on its Web site, “we have developed an effective and efficient method of coordinating the national science and expert witness strategy for medical and pharmaceutical products manufacturers.”
In July, RCR Wireless News learned that Alston & Bird was contacting RF scientists around the country. In May 1997, Alston & Bird issued a products liability advisory that said science has proved to be a setback in mobile phone and power line radiation lawsuits.
Defendants in such cases are increasingly relying on a 1993 Supreme Court doctrine, called Daubert, that allows judges to exclude the use of expert testimony deemed misleading or unqualified.
Michael Altschul, vice president and general counsel for CTIA, rejected any notion that competing wireless firms are cooperating in order to mount a national litigation defense against mobile phone lawsuits.
“These cases are all over the country,” said Altschul.
