Electromagnetic radiation and cancer: recent developments.

During the past two years, significant developments have occurred in both the courtroom and the scientific arena regarding the connection between electromagnetic radiation (EMR) exposure and cancer. Since September 1993 when TRIAL last published an article on the subject, these developments have affected litigation over both adverse health effects and diminution in property value from exposure to non-ionizing EMR.(1) These developments warrant an update on this important area of tort liability.

EMR is electric and magnetic energy moving together through space at wavelengths and frequencies inversely related to each other: The longer the wavelength, the lower the frequency. Light and heat are the only forms of electromagnetic energy that humans can perceive directly. Although people are blind to much of the electromagnetic energy spectrum, it is everywhere in the industrialized environment, and it does affect people.

The EMR spectrum begins at low frequencies, lower than those released by power and telephone lines. The frequencies increase for AM and FM radio waves, television transmission, microwaves, and infrared radiation.

The non-ionizing part of the electromagnetic spectrum, which this article addresses, is electrical energy in a form that passes through matter without dislodging electrons from atoms--hence, non-ionizing. The energy terminates once power to the source of the EMR is cut off. For example, a microwave oven can produce an enormous electromagnetic field while it is operating, but it produces none when the power is turned off.

In contrast, ionizing radiation--commonly thought of as nuclear radiation and associated with medical X-rays, nuclear power plants, and nuclear weapons --can dislodge electrons and other atomic particles as it passes through matter. The radioactive materials that emit ionizing radiation may continue to produce potentially harmful energy for a few seconds or hundreds of thousands of years, depending on the material. These materials can only be "turned off" by the natural decay process.

Cancer Cases

In May 1994, a state court jury in Douglas County, Georgia, rejected Jean Jordan's claim that her exposure to EMR from the 276,000-volt transmission lines located just outside her bedroom was the proximate cause of her terminal non-Hodgkin's lymphoma. The verdict was rendered in the form of an answer to the sole special interrogatory directed to the 12-person panel. The verdict came after four weeks of complex and contradictory testimony from epidemiologists, oncologists, and engineers on whether EMR causes cancer.

The case, Jordan v. Georgia Power Co. & Oglethorpe Power Co., was widely watched by plaintiffs' lawyers and industry counsel as the first case alleging adult cancer from residential exposure to EMR from power lines.(2) Jordan contended that the high-voltage transmission lines bathed her in a constant field of EMR that caused her cancer.

Defendants identified no alternative risk factor in Jordan's history that could have led to her disease. The defense primarily contended that the scientific evidence was insufficient to link any cancer with exposure to electromagnetic fields at power-line frequencies.

In post-trial interviews, jurors reported that even though they concluded that EMR was insufficient to cause Jordan's cancer, they believed that radiation from power lines is indeed capable of causing cancer. The jury forewoman told reporters that scientific studies "show there is something there, but we weren't convinced it caused this case."(3)

Another juror said that the utilities "may have won this battle, but the war is not over. None of us liked the decision. But the law was the law, and our hands were tied. I fully believe that electromagnetic fields cause cancer."(4) In fact, the forewoman said that if the plaintiff had been a child suffering from leukemia, the jury would have returned a plaintiff's verdict within 15 minutes.

Plaintiffs' lawyers learned many lessons from the Jordan trial. People who have been consistently recognized as being at higher risk from exposure to electromagnetic fields have a better chance of succeeding at trial. The post-trial jury interviews demonstrated that two categories of people would stand the greatest likelihood of prevailing in later jury trials: first, children with leukemia or brain cancer whose exposure to power-line-source electromagnetic fields was in a residential setting and, second, adults suffering from leukemia, brain cancer, or breast cancer who were exposed to electromagnetic fields at work.

In Washington state, the Board of Industrial Insurance Appeals affirmed an earlier decision denying workers' compensation to the widow of a Seattle City Light Co. employee. robert Pilasuk, the employee, died from acute lymphocytic leukemia at the age of 44.(5)

Pilasuk had been an apprentice and an electrician for the local utility and was routinely exposed to high levels of electromagnetic fields as a condition of his employment. The judge concluded that the claim was "too speculative" and denied compensation. The claimant's counsel has appealed. A jury trial will be held in state superior court later this year.

Several other cases involving exposure to EMR are pending.

* Bullock v. Connecticut involves a rare form of brain cancer.(6) Teenager Melissa Bullock and her mother seek damages for Melissa's astrocytoma, which they say was caused by the substation and power lines on Meadow Street in Guilford, Connecticut. The case is expected to be tried in early 1996.

* Glaser v. Florida Power & Light Co. involves claims that a husband's and wife's leukemia was caused by power-line-frequency EMR.(7) The case is set for trial in the fall of 1995.

* Johsz v. Southern California Edison involves cancer in numerous workers in an office building with high levels of EMR emanating from a transformer vault in the basement.(8) Trial data has been set for August 1995.

* Bicki v. Houston Power & Light involves the claims of 11 families alleging that EMR from power lines and building wiring caused their children's cancers.(9) Eight of the children were diagnosed with acute lymphocytic leukemia. The plaintiffs have joined the Electric Power Research Institute as a co-conspirator that, along with the utility, allegedly discredited research, manipulated public opinion, and prevented government regulation. No trial date has been set.

Property Devaluation Cases

These cases are also of significance to the EMR practitioner. Criscuola v. Power Authority involved the construction of high-voltage power lines.(10) The New York Court of Appeals held that it was not necessary for homeowners to prove that the public's fear of, or perception of, danger from exposure to high-voltage power lines was reasonable in an eminent domain proceeding. The plaintiffs were homeowners who sought consequential damages for the diminished value of their non-condemned property after the New York Power Authority had taken an easement for a high-voltage power line.

The plaintiffs claimed that the public's fear of EMR health effects diminished the value of the property not taken by the easement. The court held that

[w]hether the danger is a scientifically genuine or verifiable fact should be irrelevant to the central issue of its market value impact.... Such factors should be left to the contest between the parties' market value experts, not magnified and escalated by a whole new battery of electromagnetic power engineers, scientists or medical experts.(11)

Under Criscuola, claimants must still establish a prevalent perception of a danger emanating from the high-voltage transmission lines, but they need not establish that the perception is reasonable.

In McMartin v. San Diego Gas & Electric Co., three families claimed that the value of their homes in San Clemente, California, was reduced due to an adjacent power line.(12) This inverse condemnation case, tried before an advisory jury, claimed that an upgrade of power lines in an existing right-of-way significantly increased the strength of electromagnetic fields and therefore diminished the value of the adjoining property.

The judge required the plaintiffs to present evidence that EMR is a health hazard, contrary to the Criscuola decision, and dismissed the case. An appeal is pending.

In another setback for homeowners, a California Court of Appeal recently directed the trial court to dismiss a complaint filed by residents of San Clemente. They had claimed that EMR from recently modified power lines adjacent to their homes had caused them emotional distress, made their homes uninhabitable, and diminished their homes' market value.(13) The court held that the California Public Utilities Commission had exclusive jurisdiction over the issues raised in the case and denied plaintiffs any judicial remedy.

Scientific Developments

Results from recent studies have strengthened the connection between EMR exposure and several different types of cancer.

* In March 1994, the American Journal of Epidemiology published a study in which researchers had collected data from three cohorts of workers at electric utilities.(14) The researchers found that workers with relatively low exposures were at a statistically significant increased risk of acute non-lymphoid leukemia and acute myeloid leukemia. No association with EMR was observed for any of the other 29 types of cancer studied.

* In May 1994, in a study published in Cancer Causes and Control, researchers found that railroad workers exposed to high levels of EMR had a statistically significant increased risk of acute myeloid leukemia.(15)

* In June 1994, a study was published in the Journal of the Natinal Cancer Institute in which researchers concluded that female electrical workers had a statistically significant increased mortality from breast cancer when compared with other female workers not similarly exposed to EMR.(16) The authors concluded that their findings were "broadly consistent" with the hypothesis that exposure to electromagnetic radiation causes breast cancer.

* In a recent paper presented at an international conference on Alzheimer's disease and related disorders, a University of Southern California researcher reported a consistent pattern of increased incidence of the disease among workers with medium and high EMR exposures.(17) The full paper is awaiting publication.

* Early this year, noted EMR researcher David Savitz published a long-awaited paper evaluating the risk of leukemia and brain cancer among electrical utility workers.(18) He found that workers with the highest EMR exposures had a two-and-a-half-times greater chance of dying of brain cancer than the least exposed workers.

Mounting Evidence

Evidence of an association between EMR exposure and some types of cancer in certain people, particularly leukemia and brain cancer in children and adults, is mounting, and more cases are being filed every month in courts around the country.

Moreover, property damage claims are certain to grow as well. It is likely that jurisdictions around the country will allow juries to evaluate the claims brought by people seeking damages to property. As with any toxic tort, however, the science is extremely complex, and the practitioner must be selective in determining what kinds of cases to file and in what forum.

Some questions that need to be answered include the following: Is the plaintiff a child or an adult? Is the exposure residential, occupational, or both? What kind of cancer is involved? Is there a cluster of cancer cases? Is the exposure to EMR excessive? How receptive are judges and jurors in the forum to personal injury claims generally and toxic tort claims specifically? Has the defendant been a good corporate citizen? In a property damage case, what is the law of the forum regarding the public's perception of risk?

The answers to these questions may have a significant impact on the outcome of future cases, but it is only a matter of time before a jury returns a favorable verdict to plaintiffs in an EMR case. The next year will undoubtedly see major developments both in and out of the courtroom in this toxic tort arena.

Notes

(1)Bruce H. DeBoskey, The Killing Fields: Electromagnetic Radiation and Cancer, TRIAL, Sept. 1993, at 54.

(2)No. 91-4103 SS-296 (Ga., Douglas County Super. Ct. filed July 24, 1991) (appeal pending).

(3)Bill Torpy, Jury Decides Cancer Not Tied to Electric Lines, ATLANTA J. & CONST., May 12, 1994, at F1.

(4)Id.

(5)Pilasuk v. Seattle City Light Co., Claim No. T448239, Docket No. 92-2051 (Wash., Bd. Indus. Ins. App. filed Mar. 20, 1991).

(6)No. CV 92-0326697 (Conn., New Haven Super. Ct. filed Dec. 19, 1991).

(7)No. 94-01279 (Fla., Dade County Cir. Ct. filed Jan. 20, 1994).

(8)No. 726765 (Cal., Orange County Super. Ct. filed Mar. 14, 1994).

(9)No. 9462495 (Tex., Harris County Dist. Ct. filed Dec. 27, 1994).

(10)621 N.E.2d 1195 (N.Y. 1993).

(11)Id. at 1196.

(12)No. CA 699949 (Cal., Orange County Super. Ct. filed Nov. 13, 1992) (appeal pending).

(13)San Diego Gas & Elec. Co. v. Superior Court, 38 Cal. Rptr. 2d 811 (Ct. App. 1995).

(14)Gilles Theriault et al., Cancer Risks Associated with Occupational Exposure to Magnetic Fields Among Electric Utility Workers in Ontario and Quebec, Canada, and France: 1970-1989, 139 AM. J. EPIDEMIOLOGY 550 (1994).

(15)Birgitta Floderus et al., Incidence of Selected Cancers in Swedish Railway Workers, 1961-79, 5 CANCER CAUSES & CONTROL 189 (1994).

(16)Dana Loomis et al., Breast Cancer Mortality Among Female Electrical Workers in the United States, 86 J. NAT'L CANCER INST. 921 (1994).

(17)E. Sobel et al., Occupational Exposure to Electromagnetic Fields Is Associated with Increased Risk of Alzheimer's Disease, 15 (Supp.) NEUROBIOLOGY AGING [sections]74 (1994) (This is an abstract of the article.).

(18)David Savitz, Magnetic Field Exposure in Relation to Leukemia and Brain Cancer Mortality Among Electric Utility Workers, 141 AM. J. EPIDEMIOLOGY 123 (1995).