In a ruling that has grabbed the attention of the product liability and telecommunications bars, the D.C. Court of Appeals last week revived a series of lawsuits by individuals who say they were harmed by cell phone radiation, reversing a lower court decision that found the claims were blocked by federal law.
The court's opinion in Murray v. Motorola added yet another wrinkle to a debate within U.S. courts over whether national regulations trump state laws when it comes to issues surrounding cell phone safety. In dismissing parts of the cases while preserving others, including a set of consumer protection claims, the decision gave both sides of the case fodder to declare victory. But while the plaintiffs still have a long road before getting to a jury, some lawyers familiar with the decision said the ruling could lead to the filing of even more suits against cell phone companies in Washington's trial court.
"My sense on this is it's probably not good for either side [the telecom companies or potential plaintiffs], because it means more litigation," said Stewart Baker, a partner with Steptoe & Johnson in Washington who specializes in telecommunications law. "It doesn't put a stake in their heart so thoroughly that the plaintiffs' lawyers will just abandon [the issue], but it doesn't create much of an incentive to settle either."
The six cases at issue, filed in 2001 and 2002, target some of the biggest names in the wireless industry, including Verizon, Motorola, AT&T, Sprint and Nokia among others, who in turn have recruited a battery of big-name defense firms. Washington-based Wiley Rein partner Andrew McBride argued before the appeals court on behalf of the defendants in January. Other firms involved include Shook, Hardy & Bacon, O'Melveny & Myers, Akin Gump Strauss Hauer & Feld, Greenberg Traurig, Dickstein Shapiro, King & Spalding, Kilpatrick Stockton, Drinker Biddle & Reath and more.
The plaintiffs allege they suffered illnesses and injuries including brain cancer due to radiation from their mobile phones, and that the wireless companies' marketing misled them into believing their products were completely safe. They also claim that their phones failed to meet Federal Communications Commission regulations limiting the amount of radio frequency radiation they can emit. In 2007, Judge Cheryl Long of the Superior Court of the District of Columbia dismissed the suits, reasoning that the claims, which were made based on D.C. law, were pre-empted by the Federal Communications Act of 1996.
The appeals court agreed, but only in part. Writing for a three judge panel Oct. 29, Judge Phyllis Thompson found that the plaintiffs could not pursue claims that they were injured by phones which met the FCC's emissions standards. Doing so, she wrote, would upset the agency's policy goal of creating "a proper balance between the need to protect the public and workers from exposure to excessive [radiation] and the need to allow communications services to readily address growing marketplace demands." Thompson's opinion was joined by Judges Noel Kramer and John Fisher.
However, the court did leave the plaintiffs with several openings. It gave the plaintiffs the green light to continue their claims under the D.C. Consumer Protection Procedures Act that the companies had lied or omitted information about potential safety issues. It also said personal injury claims were not pre-empted if they were based on phones that were either built before 1996, when the FCC purportedly began applying its radiation limits to cell phones, or failed to meet the commission's requirements.
The ruling seemed to split the difference between related decisions by judges around the country. In 2005, the 4th U.S. Circuit Court of Appeals found that the FCC's regulations did not pre-empt similar kinds of state law claims against cell phone providers. But last year, a judge from the U.S. District Court for the Eastern District of Pennsylvania came to the opposite conclusion. That decision has been appealed to the 3rd U.S. Circuit Court of Appeals.
Michael Altschul, general counsel for CTIA - The Wireless Association, called the D.C. ruling "a very positive decision for the industry," saying the court's opinion had put to rest any questions about whether the FCC standards were adequate. But plaintiffs lawyers seemed equally pleased. Jeffrey Morganroth, of Birmingham, Mich.-based Morganroth & Morganroth, called the surviving consumer protection claims "the heart of the case," and said that all the personal injury allegations could go forward as well. All of the suits dealt with phones that broke the FCC's regulations, he said. He said he believes his clients can still win "substantial damages."
Several corporate defense lawyers in Washington said they had either heard about the decision or that it had come across their desk in the past week. While agreeing that the ruling was noteworthy, they split on its meaning. Many pointed out that before any of their claims can get to trial, the plaintiffs will still have to prove to the judge that they have substantial scientific evidence behind their theories. They said that judges have rejected claims in the past that cell phones actually caused cancer.
"There's a defense to be made based on the science, and if it's made aggressively, this case should never get to a jury," said Eric Lasker, a partner with Washington's Hollingsworth LLP.
But the consumer protection claims may give the plaintiffs an easier route to pursue their case, said Peter Biersteker, a partner in Jones Day's Washington office who has defended tobacco companies in consumer fraud litigation. While it may be difficult to show that cell phones actually caused cancer, he said it could be simpler to show that the wireless companies made exaggerated or untrue statements in their marketing materials.
He also noted that by leaving the consumer protection claims intact, the ruling could leave wireless companies open to a future class action in D.C. Superior Court. The District's consumer protection statute does not require plaintiffs to prove fraud, he noted, and guarantees statutory damages of at least $1,500 per violation (A plaintiff can also try to prove actual damages.)
"Compared to the personal injury stuff, which is a narrow crack," Biersteker said, "this potentially is broader."
