Cell Phone Radiation Liability – Cell Phone Cancer Lawsuits

UPDATE 11/23/2015: WSJ Reports Murray Cellphone Cancer Case May Cost Wireless Industry Over 1.9 Billion Dollars

Federal law does not preempt claims against the cellular phone industry for injuries allegedly caused by the low radio frequency (RF) radiation emitted by cellular phones if those claims are based upon:

1) Allegations of pre-1996 cellular phone usage. or
2) Use of cellular phones not in compliance with the FCC’s RF standard.
or
3) State Consumer Protection Act claims involving marketing and
advertising of cell phones relating to product safety.

The D.C. Court of Appeals reversed a lower court’s decision which had held that the Federal Telecommunications Act of 1996 (“FTA”) entirely preempted claims for personal injuries, including cancer and brain tumors, allegedly caused by the low RF radiation emitted by cellular phones. The FTA contains an express preemption provision preventing state lawsuits regulating the nation’s “wireless service facilities.” Additionally, the Federal Communications Commission (“FCC”), pursuant to the FTA, enacted in 1996 a uniform standard of RF radiation levels that all cellular phones had to comply with in order to be sold in the United States.

In Murray, the lower court reasoned that the six personal injury complaints, filed in 2001 and 2002, were preempted in their entirety by the FTA under the doctrines of express and implied preemption. The D.C. Court of Appeals disagreed on both counts. In reviewing the FTA’s express preemption provisions, the Court of Appeals determined that those provisions only applied to claims for injury arising from “facilities” or “fixed structures” of the nationwide wireless network, e.g. cellular towers, and did not apply to cellular phones. With regard to the doctrine of implied preemption, the Court of Appeals held that the personal injury claims were preempted only to the extent that they conflicted with the FCC’s 1996 determination as to the appropriate standard of RF radiation emission levels for cellular phones.

Thus, plaintiffs’ claims for personal injuries based upon pre-1996 cellular phone usage were not preempted. Likewise, claims for personal injuries allegedly caused by cellular phones that did not comply with the 1996 FCC standard were similarly not preempted. Finally, the Court of Appeals held that Consumer Protection Act claims were not preempted if based upon 1) pre-1996 usage and/or non-FCC compliance; or 2) false or fraudulent advertising.

Cell Phone Radiation Liability – What Does It Mean?

While the Court dismissed some claims, it re-opened the door so plaintiffs could still continue their claims. Before personal injury claims can go to trial relating to pre-1996 cell phones (#1) and/or cell phones that did not comply with FCC regulations (#2), plaintiffs must prove there is admissible scientific evidence to show that cell phones actually caused the alleged injuries, and there is a strong and aggressive defense that can be made based on favorable science.

However, the surviving consumer protection claims (#3) might provide plaintiffs with a comparatively easier avenue to pursue their cases by showing that wireless companies made false, misleading or exaggerated statements about potential safety issues in marketing and advertising activities, or omitted such information.

In this evolving area of the law, Murray v. Motorola, Inc. is the second appellate court to decide the issue of federal preemption of personal injury claims allegedly caused by the RF radiation emitted from cellular phones. In Pinney v. Nokia, Inc. et al., 402 F.3d 430 (4th Cir. 2005), the Court held that the FTA did not preempt state law tort claims, even those based upon FCC-compliant cellular phones.

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