Cellphone suit will get its day in court

In ruling that could shake the cellphone industry, a federal judge let stand a lawsuit that says companies are making and selling cellphones with the knowledge that they may be dangerous.

The industry tried to have the lawsuit dismissed on the grounds that Congress has given the Food and Drug Administration the job of overseeing cellphone safety. They argued that any attempts by other entities, including the courts, to regulate cell phones were out of bounds - but it was an argument that failed.

"I think the industry would view this as a significant defeat," said New Orleans attorney Michael Allweiss, who filed the suit on behalf of a Louisiana man. "This allows us to explore, I think, what they've been able to prevent from being explored in the past. It's very meaningful."

Allweiss' lawsuit does not allege that cellphones caused specific health problems in his client. Rather, the lawsuit says that cellphones should have been sold with headsets to reduce users' exposure to radiation, particularly to the brain, and to avoid what the suit says is the very real risk of health problems. The suit asks that cellphone users be reimbursed if they have already purchased headsets. If they haven't, it asks that the cellphone industry supply them to present and future customers. It also requests follow-up medical monitoring and unspecified damages for emotional suffering. If the lawsuit is certified as a class action, it could include every cell phone user in the U.S. - nearly 110 million, by one estimate.

Those are the wider allegations of the lawsuit. But this week's ruling, by U.S. District Court Judge Ivan L. R. Lemelle, focused on the important issue of jurisdiction. The 16 defendants, a who's who of the industry including Nokia and Motorola, argued that Congress gave the FDA the job of overseeing the safety of cellphones so that, for example, 50 states couldn't set 50 different standards. That would be a nightmare for consumers as well as the industry, and that's a good argument for national standards. However, the issue of jurisdiction - "preemption," it's called in these legal circles - is a tricky one. States are allowed wide latitude, generally, in issues such as this as long as they don't set standards that conflict with federal standards.

The catch in this case: Has the FDA indeed issued standards? It has issued statements about cellphones, but mostly what it has done is look at the literature and decide that there isn't enough evidence of health risk to implement a standard. There are emissions standards for microwave ovens but not cellphones. So to make its argument, the industry was forced to contend that in not taking any action, the FDA has acted. "I submit that they took action," said New Orleans attorney Charlie Steen, arguing on behalf of the industry. "They investigated and found no risk."

Lemelle, however, pointed out that the law is clear. Congress said this "preemption" of local authority takes places only when its designated agency - in this case the FDA - has set specific guidelines. In this case, he said, it hasn't. In fact, Lemelle said, the FDA has waffled on the issue, saying that there isn't enough evidence yet to decide on cellphone safety, that maybe people who are concerned should think about using headsets, and that more work needs to be done before the issue of safety is settled.

Dr. George Carlo, author of the new expose, Cell Phones: Invisible Hazards in the Wireless Age, said the preemption strategy will hurt the industry.

"The court in Louisiana has now scratched beneath the surface and found there is nothing of substance to protect consumers," he said. "Preemption is not going to work because the federal agencies are not doing what they should be doing. It's going to backfire on the industry because it's going to be clear that the FDA is not doing it's job."

"This is a big blow to the national litigation strategy of the industry," Carlo said. "This federal preemption argument was emerging as one of the industry's standard responses to all the issues. It's a main line of defense."

Or, rather, it was a main line of defense. After their loss in court, industry lawyers said it's difficult to make an argument for preemption. The real fight, they said, would be when Allweiss tries to establish a link between cellphones and medical problems.

"He knows he's got a tough, tough battle on causation," Steen said of Allweiss. "Is this [ruling] a chink [in the armor]? I don't think so ... it's important because it would have nipped the case in the bud. But these are very difficult to win."

Allweiss said all he wants is a chance to get the cellphone companies into court so that he can try to pin them on what they knew and when they knew it. Among other things, the lawsuit says the companies "know, and have long known of scientific information which indicates ... cellphone users are exposed to the risk of injury and also exposed to potentially very significant long-term health problems."

"I think the industry is indeed vulnerable because what they are doing is not right." Allweiss said.

Also significant: several times, the judge brought up a word that the cellphone industry cannot like hearing: tobacco. The subject of tobacco litigation came up as Lemelle thought out loud about legal precedents, and while he did not say there are any real parallels, the lawyers gathered to defend the industry must have winced. Recalling the early days of the tobacco lawsuits, Lemelle noted that many of the actions were based on misrepresentation. "What evidence do you have of that?" he said to Allweiss.

"That's for another day," Allweiss replied. "The question of whether I can get there is different than the question of whether I will be allowed to get there."

Now, at least, he can give it a try.

The IDG News Service is a Network World affiliate.