United States: 29 Brain Tumor Lawsuits Move Toward Trial in Washington, DC

29 brain tumor lawsuits move toward trial in Washington, DC
Arthur Firstenberg, Cellular Phone Task Force, 11 August 2014

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 witness 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.”

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