Source: Cindy Sage as posted on the CHE-EMF list:
Cellphone Waves May Bring A Litigation Wave
Stephen Riccardulli, Jennifer Kalnins Temple and Lisa Linsky, 06.20.11, 03:00 PM EDT
It will be a high burden to prove correlation between phone use and cancer.
On May 31, 2011, it was reported that the International Agency for Research on Cancer, a working group of the World Health Organization based in Lyon, France, reclassified radiation emitted by mobile devices as a possible carcinogen. It reportedly based its classification after a review of hundreds of articles published in scientific journals on health risks associated with exposure to radiofrequency (RF) electromagnetic fields, including a study–called the Interphone study–that showed a 40% increase in risk for glioma (a certain type of brain cancer) for people who used their cellphones for an average of 30 minutes per day over a 10-year period.
On the same day of IARC’s reclassification, the U.S. Supreme Court asked the U.S. Solicitor General to file a brief on whether the Supreme Court should review the Third Circuit’s dismissal of a class action brought by mobile device users who accused several companies in the cellphone market of conspiring to market cellphones without adequate warnings or headsets. On Oct. 25, 2010, the Third Circuit affirmed a holding from the Eastern District of Pennsylvania that the class action was preempted by federal law. The Third Circuit found that Congress had delegated to the Federal Communications Commission (FCC) regulation of human exposure to RF emissions, and that juries should not be permitted to create a patchwork of differing standards that would undermine the efficiency of the nationwide system.
Whether the Supreme Court reviews the case, and how it comes down, will determine whether this litigation has a future. However, if the Supreme Court reverses the Third Circuit’s decision, one should expect a flood of claims based on IARC’s reclassification of RF as a “possible carcinogen.” While the reclassification will be the basis for the filing of litigation, the big question is whether the reclassification will provide such claims with any real teeth. The legal questions raised by IARC’s announcement are numerous and include the identity of potential defendants (manufacturers, including of component parts, as well as service providers and network managers), what the IARC classification really means (the agency also lists coffee as a “possible carcinogen”), and whether the reclassification of RF emissions is enough to support cancer claims or “fear of cancer” claims. This article briefly explores the latter issue.
In New York, for example, a plaintiff can bring a claim for emotional distress due to “fear of cancer” if she can prove that her emotional distress is genuine. To do so, she must have proof of some physical manifestation of a problem resulting from exposure to a toxic substance. For example, in asbestos physical injury cases, plaintiffs often introduce evidence showing that their lungs have scarring due to exposure to asbestos fibers. Because the jury can see actual evidence that a plaintiff was genuinely exposed to asbestos, and that the exposure has manifested itself by way of a physical condition that may lead to illness (the scarring of the lungs), there is a reasonable basis to conclude that a plaintiff may be distressed. And that distress is compensable by the court system.
Proof of authenticity of emotional distress is required because emotional distress can be easily manufactured. The New York Court of Appeals first allowed recovery for “purely mental suffering” in a 1958 case called Ferrara v. Galluchio. Ferrara claimed that she feared she would develop cancer after negligently administered X-rays caused a burn on her shoulder. The court allowed Ferrara to recover damages because her dermatologist advised her to have her burn checked periodically for cancer cells and the burn itself provided objective proof that she’d been exposed to X-rays.
As more and more plaintiffs alleged fear based on exposure to industrial substances such as asbestos and PCBs, courts established a standard of physical evidence required to guarantee the genuineness of exposure claims: Plaintiffs must show evidence of the toxin in their bodies or symptoms of a “toxin-induced disease.”
While most plaintiffs are able to prove they were exposed to a toxin, their claims often fail because they cannot present the additional proof of genuine emotional distress by virtue of physical evidence. In RF emission cases plaintiffs will have to adequately present evidence of their exposure to RF emissions and proof of a physical manifestation of that exposure.
Reports on the Interphone study suggest the study began with people who already had cancer and researchers had asked them to recall how often they used their cellphones over the last decade. Such a study raises numerous evidentiary issues. For example, it is unlikely these individuals kept accurate, long-term records of their cellphone use. Future plaintiffs will likely have to rely on an expert to quantify their exposure history. But even then, a plaintiff will have to present evidence of a physical manifestation of that exposure. It is not enough for plaintiffs to cite to IARC’s reclassification of RF as a “possible carcinogen.” Whether the science relating to brain cancer, or glioma in particular, offers potential plaintiffs any ability to substantiate fear claims with physical evidence represents a significant hurdle for any plaintiff to overcome.
In sum, the standard for any plaintiff to support a claim for fear of cancer caused by cellphone exposure is a truly high burden to achieve, which may give some comfort to potential defendants given that WHO estimates the number of mobile phone subscriptions worldwide to be 5 billion. And while IARC’s reclassification will likely cause a wave of litigation, the reclassification itself will not be enough to support these claims. The future of this litigation, of course, depends on the Supreme Court’s decision.
Riccardulli, Temple, and Linsky are Partners at the law firm, McDermott Will & Emery.Leave a reply →