Posted on: 5/17/2012
Nicholas P. Panayotopoulos, Shubhra R. Mashelkar, P. Shane O’Neill
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There are more than 303 million cell phone subscribers in the United States. Globally, the number of cell phone subscribers is approximately five billion. Thus, a finding that cell phone use causes brain cancer or other harmful health effects would open the proverbial floodgates to claims against members of the cell phone industry and have huge ramifications for insurance companies. Not surprisingly, various parties all over the world are taking precautionary steps in light of the ongoing scientific inquiry. For example, the government of Delhi, India, recently announced a plan to require manufacturers to prominently display the level of radiation emitted by their handsets. And there is a movement gaining traction in the U.S. in Georgia that would prevent cell phone towers from being located close to schools. This article discusses the electromagnetic radiation emitted from cell phones, research regarding the relationship between cell phone electromagnetic radiation and cancer, and litigation regarding cell phone safety.
Cell phones emit a form of electromagnetic radiation called radiofrequency (RF). There are two types of RF—ionizing and non-ionizing. During cell phone use, the body tissues next to where the phone is held absorb RF energy. High doses of RF energy cause localized tissue heating, but RF exposure from cell phones does not cause an increase in body temperature. Heating is the only known biological effect of RF energy.
A cell phone user’s exposure to RF energy depends on several factors, including the model of the phone; the amount of time the user spends on the phone; whether the user is using a hands-free device; the amount of cell phone traffic in the area at the time of use; and the distance to the nearest cell phone tower (the farther away the user is from a cell phone tower, the more RF energy it takes to get a signal). The amount of RF energy absorbed from the phone is called the specific absorption rate (SAR). The Federal Communications Commission (FCC) regulates SAR levels, and cell phone manufacturers must report the SAR level of their products to the FCC. The current SAR limit is 1.6 watts per kilogram of body weight.
Scientific Studies: Cell Phones as Carcinogens
There are concerns that exposure to RF energy from cell phone use may affect the brain and other tissues in the head, leading to cancerous and noncancerous brain tumors. Current research focuses on whether RF energy from cell phones causes malignant (cancerous) brain tumors, such as gliomas, as well as benign tumors, such as acoustic neuromas (tumors in the cells of the nerve responsible for hearing), meningiomas (tumors in the meninges, membranes that cover and protect the brain and the spinal cord) and parotid gland tumors (tumors in the salivary glands). Scientists have not identified the mechanism through which RF energy may cause cancer.
The level of radiation emitted by cell phones is much lower than that emitted by x-rays, gamma rays, or even microwaves. Although scientists know that exposure to high levels of RF radiation can cause harmful health effects to exposed individuals, it is unclear whether the lower levels of RF radiation emitted by cell phones are similarly dangerous. The main reason for this uncertainty arises from the lengthy latency period between RF exposure and the onset of brain tumors. Additionally, the relatively recent introduction of cell phones into consumer culture means that conclusive long-term data about cell phone related RF exposure latency periods is not yet available.
As a result, much of the extensive research conducted on the human health effects of cell phone radiation is either inconclusive or conflicting, with scholars reaching divergent conclusions. For example, in 2011, Swedish researchers conducted a pooled analysis of case-control studies and found an increased risk for gliomas, a malignant brain tumor type, particularly as the latency time and cell phone hour usage increased. At the other end of the spectrum, in a study conducted solely on children and adolescents with brain tumors, European researchers found that those who were cell phone users were not statistically significantly more likely to develop brain cancer than nonusers.
Falling somewhere in between is the June 2010 Interphone Study. The Interphone Study was a decade long study that started in 2000 with participants from 13 countries. The Interphone Study evaluated the risk for gliomas, acoustic neuromas, meningiomas, and parotid gland tumors associated with cell phone use. Interphone researchers found, on the whole, no statistically significant correlation between cell phone usage and the increased incidence of certain brain tumors. However, the results signaled a possible link between the development of one type of brain tumor, gliomas, and heavy cell phone use. However, the Interphone Study Group reported that this finding may be a result of participation bias or other methodological limitations. Thus, bias and errors limited the strength of the study’s results, thus preventing a conclusion with regards to causation.
From May 24–31, 2011, 31 scientists from 14 countries convened at the International Agency for Research Center (IARC) of the World Health Organization (WHO) in Lyon, France, to review studies addressing the risk of cancer associated with RF energy emitted from cell phones. On May 31, 2011, the IARC classified RF electromagnetic fields as “possibly carcinogenic” to humans based on an increased risk for gliomas related to cell phone use. It reportedly based its classification on a review of hundreds of scientific journals articles regarding health risks associated with exposure to RF energy, including the Interphone study, which showed a 40 percent increase in risk for gliomas for people who used their cell phones for an average of 30 minutes per day over a 10 year period.
Finally, the United Kingdom’s Health Protection Agency (HPA) recently concluded that there is “no convincing evidence that RF fields cause genetic damage or increase the likelihood of cells becoming malignant.” The HPA cautioned, however, that monitoring is essential as the long-term effects of cell phone radiation are still unknown, as cell phones have only been in use since the 1990s—“[o]ne can’t know what the long-term consequences are of something that has been around for only a short period” said Anthony Swerdlow, who chaired the HPS review group. The HPA also stated that “excessive use of mobile phones by children should be discouraged.”
Cell Phone Litigation: Causation Issues Bar Plaintiffs’ Claims
To date, personal injury suits based on the health risks associated with cell phones have been, for the most part, unsuccessful because it is difficult for plaintiffs to establish causation, as the evidence has been held to be scientifically unreliable. As of now, the weakness in the scientific basis for claims based on use of cell phones presents viable defenses to the claims of causation.
The first tort suit in the United States to allege that cell phone radiation caused brain cancer was Reynard v. NEC, 887 F. Supp. 1500 (M.D. Fla. 1995). The plaintiffs’ claims were not successful; the court granted summary judgment to the defendants because the plaintiffs’ evidence did not satisfy their burden of showing an issue of material fact regarding causation and did not satisfy the evidentiary requirements under Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993).
Similarly, in Newman v. Motorola, Inc., 218 F. Supp. 2d 769 (D. Md. 2002), aff’d Newman v. Motorola, Inc., 78 Fed. Appx. 292 (4th Cir. 2003), the court granted summary judgment to the defendants because the plaintiffs had not submitted any reliable or relevant evidence to support either general or specific causation, leaving the plaintiffs no admissible evidence on causation. And, like Reynard, the court found that plaintiffs’ experts failed to meet the Daubert standard.
As these cases demonstrate, courts have struggled with accepting plaintiffs’ experts’ testimony under the stringent Daubert standards. Until generally accepted scientific research conclusively establishes the causal link between cell phone use and cancer, plaintiffs face an uphill evidentiary battle.
Cell Phone Litigation: Federal Preemption
Plaintiffs also face a procedural hurdle, as their claims may be preempted by federal law, which considers all cell phones that comply with the prescribed SAR standards to be safe. Accordingly, litigation has turned primarily on whether state law claims that directly or indirectly impose stricter emissions standards than those prescribed by federal regulations are preempted under the doctrine of conflict preemption. Three reported decisions are at the forefront of the conflict preemption issue: Farina v. Nokia, Inc., 625 F.3d 97 (3d Cir. 2010); Murray v. Motorola, Inc., 982 A.2d 764 (D.C. 2009); and Pinney v. Nokia, Inc., 402 F.3d 430 (4th Cir. 2005). The U.S. Court of Appeals for the Third Circuit (Farina) and District of Columbia Court of Appeals (Murray) have held that state law claims are preempted, while the U.S. Court of Appeals for the Fourth Circuit (Pinney) allowed the claims to proceed.
Following a petition to the Supreme Court in Farina, it appeared that the Supreme Court was interested in hearing the case. Last May 2011, on the same day that the IARC of the WHO announced that it was classifying cell phones as possibly carcinogenic, the Supreme Court invited the Solicitor General to file a brief on the issue. However, with the denial of certiorari in early October 2011, the recent challenge to the federal preemption defense ended, and so it remains a lead defense for defendants today.
In the absence of a definitive scientific research establishing a causal link between long term cell phone use and cancer, plaintiffs’ burden of showing a causal relationship between their alleged injuries and cell phone use has been, to date, almost impossible to prove. However, with the IARC’s recent classification of RF electromagnetic fields as “possibly carcinogenic” to humans, plaintiffs will have a better chance in prevailing against cell phone manufacturers and suppliers on personal injury and product liability claims. Whether the IARC’s classification has real teeth is yet to be seen; however, it is apparent that this will only be the beginning of a wave of new cell phone lawsuits.
Nicholas P. Panayotopoulos
Shubhra R. Mashelkar
P. Shane O’Neill
Weinberg Wheeler Hudgins Gunn & Dial