United States: Motorola Gets Brain Cancer Cellphone Suit Slashed

Motorola Gets Brain Cancer Cellphone Suit Slashed
By Piper Hudspeth Blackburn, Law360, Apr 24, 2023

Law360 (April 24, 2023, 8:52 PM EDT) -- A Louisiana federal judge has slashed part of a suit against Motorola that alleged a man died from brain cancer caused by exposure to harmful amounts of radiation from his phones, finding that the dismissed claims were preempted by the Federal Communications Commission's authority to set standards for phones' radio frequency emissions.

In an April 21 order, U.S. District Judge James D. Cain Jr. said most of the claims brought by the deceased man's family were preempted because they were based on "general attacks" on the FCC's certifications and cellphone manufacturers' "alleged manipulation of testing results."

To succeed in the other surviving claims, Judge Cain continued, the family of Frank Aaron Walker will have to demonstrate how Motorola Mobility LLC made a defect in one or more of the phones that caused the devices to emit radio frequencies that exceeded the FCC's Specific Absorption Rate standards, which measure exposure to RF radiation emitted from a source like a cellphone.

"From the complaint, it is unclear how plaintiffs came to their belief that the phones at issue exceed the SAR standard or if they are even in possession of these phones," the opinion stated. "But the motion before the court is based on preemption rather than the adequacy of plaintiffs' allegations."

Judge Cain permanently dismissed the failure to warn, civil conspiracy and Louisiana Unfair Trade Practices violations from the suit. Two trade groups, CTIA — The Wireless Association and the Telecommunications Industry Association were also freed from the suit.

Walker's family first sued Motorola, along with ZTE Corp., Cricket Wireless LLC, AT&T Mobility LLC, and the trade groups in April 2021. Microsoft Mobile Inc. was added to the suit in June 2021. According to the complaint, Motorola, along with its affiliated manufacturers and trade groups, hid information about the harmful effects of radio frequency energy and radiation from consumers.

The suit alleges that Walker was unknowingly exposed to RF radiation from the phones he used from 1995 through 2020. Walker was diagnosed with brain cancer in January 2019, according to the amended complaint, and after a period of "extensive radiation and chemotherapy" as well as surgery, Walker died on Dec. 31, 2020.

The family claims the Motorola phones Walker used failed to comply with the FCC's SAR standards and would generate RF radiation that exceeded the levels listed in the certifications they obtained. Motorola, according to the family, "did not provide adequate warnings about them or instructions concerning the dangerous characteristics of cell phones."

In addition to punitive damages, the Walker family has asked the court to order Motorola to compensate them for funeral and healthcare costs, among other things.

FCC regulations have preempted other suits alleging harmful exposure to phone radiation. On March 13, the city of Berkeley, California, asked the U.S. Supreme Court to take up an appeal from a proposed class of iPhone users claiming Apple Inc.'s smartphones emit dangerous levels of radiation.

The users had their suit tossed after the Ninth Circuit determined that California's consumer protection law was preempted by FCC regulatory authority.

"Even if the agency has the power to preempt state law under the [Communications Act], this court should direct that it should only be held to have achieved that preemptive effect when it states its intent expressly," the city says in its brief.

Representatives for the Walker family and Motorola did not immediately respond to requests for comment.

The Walker family is represented by Hunter W. Lundy, Matthew E. Lundy and Rudie R. Soileau Jr. of Lundy Lundy Soileau & South LLP.

Motorola is represented by Deirdre C. McGlinchey of McGlinchey Stafford PLLC and Terrence J. Dee of Winston & Strawn LLP.

CTIA is represented by Russell J. Stutes Jr. and Russell J. Stutes III of Stutes & Lavergne LLC, and Vicki L. Dexter of the Law Office of Vicki Dexter.

The Telecommunications Industry Association is represented by Robert E. Landry and Brian M. Bradford of Scofield Gerard Pohorelsky Gallaugher & Landry LLC.

AT&T Mobility and Cricket Wireless are represented by Thomas C. Watson and Curtis S. Renner of Watson & Renner, and Gary J. Russo and Carmen M. Rodriguez of Jones Walker LLP.

Microsoft is represented by J. Michael Veron of Veron Bice LLC and Lauren Newman Smith, Lohr A. Beck and Steven M. Zager of King & Spalding LLP.

ZTE Corp. is represented by Daniel T. Plunkett and Andrew M. Albritton of McGlinchey Stafford PLLC.

--Additional reporting by Jonathan Capriel. Editing by Kristen Becker.

https://www.law360.com/articles/1600201/motorola-gets-brain-cancer-cellphone-suit-slashed