29 lawsuits… “Can you hear me now?”

Twenty-nine high-profile lawsuits brought by people whose brain tumors
were caused by their cell phones are finally moving toward trial. Six of
these cases were originally filed in 2001 and 2002. Many of the
plaintiffs are no longer alive. On Friday, Judge Frederick H. Weisberg, in the D.C. Superior Court,
admitted the testimony of five expert witnesses for the plaintiffs, and
the 12- and 13-year-old cases will now move into the discovery phase.
Each of the plaintiffs is asking for more than $100,000,000. There are
46 defendants including Motorola, Nokia, AT&T, Bell Atlantic, Cellular
One, Cingular Wireless, SBC Communications, Verizon, Vodafone, the
Telecommunications Industry Association, the IEEE, ANSI, the CTIA, and
the FCC. The plaintiffs are represented by Jeffrey B. Morganroth of
Morganroth & Morganroth, a law firm in Birmingham, Michigan.For over a decade the industry and the plaintiffs have played tug-of-war
with the oldest cases, sending them back and forth between federal and
state courts, and fighting over whether the plaintiff’s claims were
preempted by the Telecommunications Act of 1996.In 2009 the D.C. Court of Appeals, in Murray v. Motorola (982 A. 2d
764), ruled that the telecommunications companies could not be sued over
brain tumors caused by cell phones manufactured after 1996. But since
all of these plaintiffs had used pre-1996 phones, their lawsuits were
allowed to go forward. They were also allowed to go forward on their
claims that the defendants made false and misleading statements and
failed to disclose information about the dangers of cell phones.  These
claims were brought under the D.C. Consumer Protection Procedures Act.

In December 2013 and January 2014, testimony was heard from:

DR. SHIRA KRAMER, a Maryland epidemiologist;

DR. MICHAEL KUNDI, professor of epidemiology and occupational health at
the Medical University of Vienna;

DR. VINI KHURANA, a neurosurgeon and professor of neurosurgery at the
Australian National University in Canberra;

DR. IGOR BELYAEV, head research scientist at the Cancer Research
institute at the Slovak Academy of Science in Bratislava, Slovakia;

DR. WILHELM MOSGOELLER, professor and medical doctor at the University
of Vienna Medical School’s Institute for Cancer Research;

DR. DIMITRIS PANAGAPOULOUS, founder of the Radiation Biophysics
Laboratory at the University of Athens;

DR. ABRAHAM LIBOFF, professor emeritus of physics at Oakland University
in Rochester, Michigan; and

DR. LAURA PLUNKETT, pharmacologist and toxicologist in Houston.

On Friday, August 8, 2014, the testimony of Drs. Kramer, Khurana, and
Panagopoulos was disallowed. But the testimony of Drs. Kundi, Belyaev,
Mosgoeller, Liboff, and Plunkett was admitted. They will testify at
trial about “general causation,” i.e. that cell phones can cause brain
tumors.

The lawsuits now move into the discovery phase, in which each side is
compelled to produce documents and answer questions. This is the first
time that the industry has had to turn over data. There will then be a
fight over the admission of the testimony of witnesses on “specific
causation,” i.e. doctors and others who will testify that these specific
cell phones caused these specific tumors.

Friday’s decision by Judge Weisberg allowed 13 of the cases, which have
been consolidated in one action, to go forward. The other 16 cases are
being tried separately, but the parties in those cases agreed to be
bound by Friday’s decision.

In allowing the experts to testify, Judge Weisberg wrote:

“Federal law is the supreme law of the land, but there is no
constitutional provision that says federal facts are the supreme facts
of the land. Federal law can preempt state law, but it cannot preempt
scientific fact. The scientific truth, whatever it may be, lies outside
of the FCC’s regulations about what is “safe” or “unsafe.”

Arthur Firstenberg