D.C. Ct. Apps. Decision re Cell-Phone Radio-Frequency-Hazard Litigation

I plan to read the opinion tomorrow with fresh eyes focusing especially on the court's handling of FCC federal preemption.

Randal P. Schumacher
Schumacher Partners International, LLC
1615 L Street, NW
Suite 650
Washington, DC 20036

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On Nov 5, 2009, at 6:36 PM, G. L. Carlo wrote:

http://www.dcappeals.gov/dccourts/appeals/pdf/07-CV-1074+_MTD.PDF.

The District of Columbia Court of Appeals has returned a partial procedural legal victory for those seeking claims against cell phone manufacturers for brain tumors.

The link above and the attached file contain the United States District of Columbia Court of Appeals decision regarding six plaintiff cases where brain cancer was allegedly caused by cell phone use. The cases have been referred from court to court since 2001, with many procedural victories achieved under the competent work of the Morganroth firm. Most recently, in 2007, these six cases were dismissed by the District of Columbia Superior Court on the basis of federal pre-emption (The notion that federal regulations administered through the Federal Communications Commission bar any state court claims against cell phone companies for health damages allegedly caused by the phones.) This District of Columbia appellate court has clarified where federal law does and does not preempt state actions. Overall this is good news for those who believe their suffering is caused by cell phones in that it provides a roadmap to potential recovery.

The Court of Appeals summary statement:

".... For the foregoing reasons, we conclude that plaintiffs’ claims that are premised upon
allegations that defendants’ FCC-certified cell phones are unreasonably “dangerous” because of
RF radiation are barred under the doctrine of conflict preemption. Plaintiffs’ claims with respect to their pre-1996 cell phones (or other allegedly non-FCC-compliant cell phones), and at least some of their claims under the CPPA that defendants have made affirmative misrepresentations or material omissions with respect to plaintiffs’ cell phones, are not preempted. Accordingly, the judgment of the Superior Court dismissing the complaints is affirmed in part and reversed in part, and the matter is remanded for further proceedings consistent with this opinion."

The practical meaning of this complex decision is that those suffering ill effects allegedly caused by cell phones that were purchased prior to 1996, and cell phones purchased after 1996 that can be proven to be in violation of the FCC SAR guideline, have potential pathways to recovery of money damages. In addition, the appellate court rejected the notion that federal law supersedes a state's right to require cell phone companies to make full disclosures regarding the potential dangers of cell phones. The court further decided that state regulatory actions with respect to cell phone emissions are not preempted, leaving open the door for state-based legislative actions regarding warnings and notifications.

The cases have been remanded back to D.C. Superior Court and the litigation will now move forward.

Dr. George L. Carlo

The Science and Public Policy Institute

Washington, D.C.
866-620-4459

http://www.dcappeals.gov/dccourts/appeals/pdf/07-CV-1074+_MTD.PDF