WASHINGTON-Health litigation enters a new phase this week as lawyers for
Christopher Newman file the opening brief with a Richmond federal appeals court
in their challenge of U.S. District Judge Catherine Blake's dismissal last year
of an $800 million cancer lawsuit against Motorola Inc.
Newman, a 42-year-old neurologist forced out of work after being diagnosed with
brain cancer in March 1998, is represented by the firm of high-profile trial
lawyer and Baltimore Orioles owner Peter Angelos. Newman contends cell-phone use
caused his brain cancer.
Blake dismissed the lawsuit Oct. 31 after ruling Newman failed to offer
sufficient scientific evidence to justify sending the case to trial. Over the
course of a five-day hearing last February, each side offered up scientists and
experts, who provided conflicting testimony on the question of whether Newman's
cell phone led to his brain tumor.
Today, there are 140 million mobile-phone subscribers. Industry and various
scientists insist radiation from handsets is too weak to break chemical bonds
and therefore cannot cause biological damage. Critics point to research showing
DNA breaks, genetic damage, memory impairment
and effects they contend are caused by non-heating mechanisms.
At least one federal department, the Environmental Protection Agency, last
September said there is "continued scientific uncertainty regarding the
existence of possible non-thermal effects" from mobile-phone radiation and that
it supports further research. European and Asian countries have research
programs, and there are several studies are in progress in the United States.
The Blake ruling was a huge victory for the mobile-phone industry, which has
been dogged by the cancer issue for a decade and faced the prospect of being hit
with an avalanche of new lawsuits had the Newman case gone to a jury. Last
fall's decision came at a time when wireless carriers and manufacturers were
being pulverized by Wall Street and feeling the squeeze of an economy that
struggles to overcome the overhang of a possible war with Iraq, lackluster
corporate earnings, heavy debt and soft consumer demand.
"Judge Blake delivered a rather powerful decision in that case that should be
difficult to challenge on appeal," said Norm Sandler, director of global
strategic issues at Motorola.
Though health litigation barely has a pulse, industry is not completely out of
the woods. Nine brain-cancer lawsuits-six of which were transferred to Blake in
December by the Judicial Panel on Multidistrict Litigation-remain. In addition,
a cancer lawsuit against industry in a Nevada state court is still alive and at
least two workers' compensation cases filed by former mobile-phone employees are
pending.
Of immediate concern to industry is whether Blake dismisses a handful of
class-action lawsuits that claim industry failed to disclose to consumers that
mobile-phone radiation could cause biological damage, undercutting their ability
to decide, for example, whether to purchase a headset or even a cell phone.
The headset cases are ripe for a ruling.
A Newman attorney declined to comment on a strategy to be employed in the U.S.
Court of Appeals for the Fourth Circuit, viewed as one of the most conservative
federal benches in the country. The Newman brief should be filed Tuesday.
Motorola's brief is expected to be filed some 30 days later. Newman could file a
response to the appellee's brief if it chooses two weeks afterward.
Even before briefs are filed, there is a dispute over exactly which firms are
part of Newman's appeal. In December filings with the court, No. 1 mobile-phone
carrier Verizon Wireless Inc. and its parent company, Verizon Communications
Inc., asserted they are not adverse parties in the appeal because Blake
dismissed them as defendants. Likewise, SBC Communications Inc., co-owner of
Cingular Wireless L.L.C., said it should not be a party to the appeal because it
too was dismissed by Blake as a defendant in the Newman lawsuit.
At a minimum, Newman's lawyers are expected to argue that Blake abused her
discretion in excluding their side's expert testimony while accepting that of
the defendants. That could be tough. The 1993 Supreme Court standard for
scientific testimony sets up federal judges as gatekeepers for evidence and
accords them broad leeway insofar as admitting or dismissing evidence.
Also up for challenge on appeal is Blake's refusal to certify Nationwide Motor
Sales Corp. as a defendant in the lawsuit. Had Blake done so, Newman presumably
would have had grounds to get the case sent back to state court. Nationwide is a
Maryland company that sold Newman his cell phone.
The concept of
specific absorption rate (SAR) has been around for many years, but
recent developments have test methods in question for public safety
concerns. Learn
more >>
There are 50,000 trillion
cells in the body, and even in older people the body is still actively
creating another billion new cells every hour, so the incorruptibility
of DNA is all- important in our health and survival Learn
more >>
Please don't let your
KIDS use
cell phones except in emergencies! Children have much thinner skulls.
CLICK TO VIEW IMAGES 5 yr 10 yr
Adult
