Cell Phone Suit Will Get Its Day in Court
January 18, 2001, 3:44 PM PST
A Louisiana lawyer says companies such as Nokia and Motorola 
know that the devices are dangerous.  By G. Patrick Pawling.

 NEW ORLEANS, La. - In ruling that could shake the cell phone
industry, a federal judge let stand a lawsuit that says companies are
making and selling cell phones 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 cell phone 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 cell phones caused specific
health problems in his client. Rather, the lawsuit says that cell
phones 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 cell
phone users be reimbursed if they have already purchased headsets. If
they haven't, it asks that the cell phone 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 (NOK) and Motorola (MOT) , argued that
Congress gave the FDA the job of overseeing the safety of cell phones
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 cell phones, 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 cell phones. 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 cell phone 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."
******* (Highlights by guru...)

"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 cell phones 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 cell phone 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
... cell phone 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
cell phone 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.

G. Patrick Rawling is a freelance writer based in New Orleans.
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