Lawsuits call for more information on dangers of cell phone radiation.

Cellular phones have become so commonplace that many people wonder how they once lived without them. Mobile phones are convenient--and, to some, annoying--but no one doubts they have changed the way people communicate. But by becoming so reliant on this new technology, are cell phone users ignoring a potential health hazard?

"This is a public health issue, in the sense that when you put the cell phone to your head with the antenna adjacent to your head, you are putting radiation into your head," said Michael Allweiss of New Orleans, who represents plaintiffs in cell phone litigation.

Lawsuits that have tried to show that cell phones cause brain cancer have met with limited success. Now, a new class of plaintiffs is asking a broader question: Are cell phone manufacturers negligently failing to warn of more general danger from radiation and to inform users about the benefits of using headsets? This spring, the Fourth Circuit reinstated five class actions on this very question.

The health effects of cell phone use have been debated for years. The radio frequency (RF) that the phones use to communicate is a form of electromagnetic energy. When a user holds the phone to his or her head, the soft tissues of the head absorb some of this energy (some researchers say as much as 80 percent). Studies have established that high levels of RF radiation cause adverse health effects, but no consensus has emerged on the effects of low-level exposure of the type cell phone users experience.

The plaintiffs in the recently reinstated class actions, unlike those in previous cell phone suits, do not have brain or eye cancer. The named plaintiffs claim to represent all past and future cell phone buyers and lessees who were not provided a headset when they obtained the phones and who do not have rumors. The defendants are companies that manufacture and sell wireless telephones, the Cellular Telecommunications and Internet Association, and the Telecommunications Industry Association.

The plaintiffs claim that the phones emit unsafe levels of RF radiation and that the defendants have hidden this hazard from consumers. The suits allege design defects, violation of state consumer-protection laws, and fraud for misrepresenting the phones' safety to the public. They also claim the defendants did not conduct adequate research into the health effects of cell phones, suppressed research that questioned the phones' safety, and failed to warn of the radiation dangers and to provide headsets or encourage their use.

Plaintiffs seek compensatory damages to cover the cost of a headset for each class member, punitive damages, costs, and attorney fees. They also want the defendants to provide class members with instructions for using headsets and information on how headsets protect against radiation exposure.

The cases already have a lengthy court record. In October 2001, the Judicial Panel on Multidistrict Litigation consolidated four class actions in the District of Maryland. (In re Wireless Telephone Radio Frequency, Emissions Prod. Liab. Litig., 170 F. Supp. 2d 1356 (J.P.M.L. 2001).) The cases--originally filed in state courts in Louisiana, Maryland, New York, and Pennsylvania--were removed to federal court. The fifth case, removed from a Georgia state court, was added a few months later.

After the consolidation, the plaintiffs in four of the suits (collectively called the Pinney cases) filed a consolidated motion to remand to state court, arguing that they involved only state law claims. The plaintiffs in the Louisiana case (known as Naquin), which was originally removed because of diversity jurisdiction, did not join the motion.

Preemption issues

In June 2002, District Judge Catherine Blake denied the motion, calling the claims "a disguised attack" on RF radiation standards issued by the Federal Communications Commission (FCC). "[T]he plaintiffs' suits, though couched in the language of state tort and contract law, have only one goal--to challenge in state court the validity and sufficiency of the federal regulations on radio frequency radiation from wireless phones," she wrote. (216 F. Supp. 2d 474 (D. Md. 2002).)

The defendants then moved to dismiss all five cases, saying the claims are preempted by the Federal Communications Act (FCA) and FCC regulations. In March 2003, Blake agreed: "[T]he only relief sought would necessarily require a judge and jury to usurp the regulatory function entrusted by Congress to the expertise and discretion of federal agencies." (248 F. Supp. 2d 452 (D. Md. 2003).)

On appeal, the Fourth Circuit disagreed with both rulings and reinstated all five cases, remanding Naquin to federal trial court in Louisiana and the Pinney cases to their respective state courts. The panel held that the Pinney suits did not directly attack the federal RF radiation standards, and therefore the federal court had no jurisdiction.

"[T]he nub of [the defendants'] argument is that a wireless telephone's compliance (or noncompliance) with the federal RF radiation standards determines whether the telephone is unreasonably dangerous," wrote Circuit Judge M. Blane Michael for the majority "[E]yen if [the defendants'] wireless telephones comply with the federal RF radiation standards, the Pinney plaintiffs could still establish the defective design element of their strict liability claim." (Pinne), v. Nokia, 402 E3d 430 (4th Cir. 2005).)

The panel analyzed the preemption question in the context of all five cases, finding "there is simply no evidence that Congress intended [the FCA] to be the exclusive claim for plaintiffs alleging injury from wireless telephones."

The court also addressed an issue of first impression. The FCA says state and local governments cannot regulate "personal wireless service facilities" that comply with RF radiation standards. The court held that "facilities" refers to a structure, such as a base station (usually a tower that emits a cellular signal), that falls under zoning or land-use regulations; cell phones, which are portable and have no tie to the land, are not facilities, and their regulation is not limited to federal law.

Senior District Judge Jackson Kiser dissented, saying that to prove their case the plaintiffs would have to show that the RF standard is insufficient.

Allweiss, who worked on the Fourth Circuit appeal, hailed the court's decision to recognize the plaintiffs' right to pursue their state law claims, If the district judge's ruling had stood, he said, it "would have basically stopped the litigation entirely."

The defendants plan to appeal the ruling to the U.S. Supreme Court.

If the ruling holds, Allweiss said, "it opens up the claims to true discovery and an analysis of the allegations. By allowing us to go forward, we get to ask all these important and meaningful questions in the discovery context, so the public will really get to know what's behind all this."

Other cases filed over the radiation exposure from cell phones are personal injury suits brought by people who have brain or eye cancer. For instance, six cases filed in the Superior Court for the District of Columbia were removed to federal court and consolidated with the Pinney and Naquin class actions. Last July, Blake remanded those cases to the local court because they were personal injury suits. (327 F. Supp. 2d 554 (D. Md. 2004).)

Blake had refused to remand an earlier personal injury suit and later dismissed the case after finding that the plaintiff's expert testimony did not pass the Daubert test. (Newman v. Motorola, 218 F. Supp. 2d 769 (D. Md. 2002).) The Fourth Circuit upheld that ruling. (78 Fed. Appx. 292 (4th Cir. 2003).)

Looking for proof

A key question for plaintiffs is how to prove that the radiation emitted by the phones is enough to endanger users' health. No research has yet shown a definitive link to brain or eye cancer, although some studies have shown changes in cell structure that could indicate adverse health effects.

Most current research on the issue is being conducted in Europe. The International Agency for Research on Cancer in Lyon, France, is coordinating research teams in 13 countries in the Interphone project.

As part of that project, researchers from the Karolinska Institute in Stockholm, Sweden, announced last October that their study found that long-term use of the phones causes an increased risk of acoustic neuromas, benign tumors of the auditory nerve. However, they saw no increased risk from less than 10 years of use. The study was published in the November 2004 issue of Epidemiology. (Stefan Lonn et al., Mobile Phone Use and the Risk of Acoustic Neuroma, 15 Epidemiology 653 (2004).)

The same team published further research in the March 2005 issue of the American Journal of Epidemiology, showing no increased risk of glioma or meningioma, other types of brain tumors. (Stefan Lonn et al., Long-Term Mobile Phone Use and Brain Tumor Risk, 161 Am. J. Epidemiology 526 (2005).)

Another group of Swedish researchers, led by an oncology professor at the University Hospital in Orebro, found a higher incidence of brain tumors among cell phone users than nonusers in rural areas. The study, published this May in the British journal Occupational and Environmental Medicine, also showed higher rates among rural cell phone users than users in urban areas. Mobile phones used in rural areas need a higher level of radiation to communicate with their base stations, a possible explanation for these results, the researchers said. (Lennart Hardell et al., Use of Cellular Telephones and Brain Tumor Risk in Urban and Rural Areas, 62 Occupational & Envtl. Med. 390 (2005).)

Researchers at the University of Vienna, in Austria, reviewed nine epidemiological studies done in Europe. They noted in the September-October 2004 issue of the Journal of Toxicology, and Environmental Health Part B: Critical Reviews that all of the studies (done to that date) that focused on long-term use showed some increased risk of cancer from exposure to cell phone radiation. (Michael Kundi et al., Mobile Telephones and Cancer--A Review of Epidemiological Evidence, 7 J. Toxicology & Envtl. Health B Critical Rev. 351 (2004).)

Another study, not yet published--funded by the European Union and coordinated by the German research group Verum--looked at the effect of radiation on animal and human cells in a laboratory. Scientists in the four-year "Reflex" study announced in December that radio waves from cell phones do harm cells and damage DNA. They said no conclusions could be drawn and more study was needed to determine whether the damage leads to cancer.

Many researchers--and the cell phone industry--insist that such studies are insufficient to prove the phones unreasonably dangerous. Others think the research is enough to warrant caution. In January, William Stewart, chairman of Britain's National Radiological Protection Board, advised parents not to give cell phones to children under eight, saying he believed they pose a health risk. Stewart also called on cell phone marketers to stop targeting children.

Some scientists believe children are at greater risk because they have thinner skulls, their nervous systems are not fully developed, and they are likely to accumulate more years of phone use.

A familiar story?

More and more often, critics and researchers--and even technology bloggers--are comparing this story to that of the tobacco litigation. Research may not yet show a definitive link, but it has raised concern. More study is needed, but plaintiff attorneys are eager to delve into how much the cell phone makers know about health risks and ways to protect consumers.

"The industry knows more than it's telling us," Allweiss said.

He and other plaintiff lawyers hope the discovery process will yield information that will help protect the public.

"We are using the product without knowing its long-term effect," he said. "Some of the evidence that we think exists shows that you get biological cellular changes from the use of these phones when you put the radiation near your head. It seems fairly clear to me that most people have no clue that that's going on."