While studies have generally concluded that current evidence does not support any causal link between cell phone radiofrequency emissions and brain tumors or other cancers, it is wise to heed the recommendations of the various studies to date and monitor developments in scientific research in preparation for possible future claims.
The Italian Case
On October 12, 2012, Italy’s highest civil court, the Supreme Court of Cassation, upheld a lower court ruling that an Italian man’s cranial nerve tumor was causally linked to his cell phone use.
The plaintiff is 60-year-old Innocente Marcolini, who claimed that he developed a brain tumor near his left ear as a consequence of speaking on his cellular and cordless telephones in connection with his work for up to six hours a day for twelve years. Although it was benign, the tumor posed a severe threat to the plaintiff’s life and was successfully removed, leaving him with a partially paralyzed face and severe pain for which he takes daily doses of morphine.
When the tumor was first detected, the plaintiff filed a claim for workers’ compensation from the Italian workers’ compensation authority (Istituto Nazionale Infortuni sul Lavoro, or INAIL), which was denied on the grounds that that there was no evidence his tumor had been caused at work and that there is not enough evidence linking cell phone use to brain tumors. INAIL relied on conclusions from the Interphone study, based on research conducted by the World Health Organization’s International Agency for Research on Cancer (IARC). The organization offers insight about the safety of mobile phone use, but states that “to date, no adverse health effects have been established as being caused by mobile phone use.”
The plaintiff then filed a civil suit against INAIL’s decision in the Tribunal of Brescia, which found that there was a causal link between the use of cellular and cordless telephones and tumors. Oncologist and professor of environmental mutagenesis Angelo Gino Levis and neurosurgeon Dr. Giuseppe Grasso testified on the plaintiff’s behalf. According to their studies, the electromagnetic radiation emitted from the handsets of cell phones can damage cells in the brain, leaving them more susceptible to tumors. In reaching its decision, the lower court also relied on independent research conducted by Lennart Hardell’s group at the University of Örebro in Sweden between 2005 and 2009, which showed evidence of increased brain tumor risk associated with long-term cell phone use. INAIL appealed the decision.
The appellate court placed more weight on research done by Lennart Hardell’s group that suggested the use of cell phones for more than ten years leads to increased risk for acoustic neuroma and glioma. The appellate court considered this work more “reliable” and more “independent” than studies such as the Interphone study, conducted by the IARC and funded jointly by the cell phone industry and the European Commission. The Interphone study, published in 2010, did not produce solid evidence that cell phones increase the risk of brain tumors, although it hinted at a slightly higher risk for “heavy” users.
A further appeal from INAIL brought the case before the Supreme Court of Cassation. In its decision, the Labor Law section of the court held that the lower court’s decision was justified and that scientific evidence advanced in support of the claim was reliable.
The Italian Ruling and Current Scientific Research
The Italian Supreme Court’s decision is strongly at odds with current scientific opinion. Studies to date have generally concluded that evidence does not support any causal link between cell phone radiofrequency (RF) emissions and brain tumors or other cancers.
In fact, the WHO’s Interphone study classifies cell phones as “possible” carcinogens, in the same category as pesticides and coffee. The Italian Supreme Court’s suggestion that the Interphone study had been influenced by the cell phone industry has also been criticized. Michael Repacholi, former coordinator of the WHO’s Electromagnetic Fields Project, stressed that the Interphone study was in fact independent and was the largest study ever conducted on the topic. He said that funds for the Interphone study were provided to a committee that acted as a firewall between the funders and sponsors so that the researchers had no contact with any of the sponsors.
However, findings from various studies have been consistently qualified by exposure of 15 years or less, and because cell phones have only been in use since the 1990s, studies to date recommend continued monitoring of cell phone RF exposure rates, as their long-term effects are still unknown. For example, the Centers for Disease Control and Prevention (CDC) and the National Institute of Environmental Health Sciences (NIEHS) say while there is no distinct proof yet, studies are being conducted to find a link to cancer. Nevertheless, by and large, health experts acknowledge it may be difficult to definitively determine whether cell phones pose a carcinogenic risk.
The Italian Ruling and U.S. Cell Phone Litigation
The Italian Supreme Court of Cassation appears to be the highest court in the world to have addressed the carcinogenic effect of cell phone radiation. The court’s recognition of a “causal” link between Mr. Marcolini’s brain tumor and his heavy cell phone usage has the potential to open the door to further claims for personal-injury and class-action lawsuits against cell phone companies around the world. Thus far, such lawsuits have been unsuccessful in the United States.
U.S. federal law considers all cell phones that comply with the specific absorption rate (SAR, a unit of measure of the amount of RF energy absorbed by the body when using a cell phone) standards prescribed by the Federal Communications Commission (FCC) to be safe. Cell phone radiation lawsuits to date have centered on the adequacy of those standards and on whether state law claims that impose stricter emissions standards are preempted under the doctrine of conflict preemption, which has led to a circuit split on the issue. See 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, 402 F.3d 430, 458 (4th Cir. 2005).
In the Farina case, the plaintiffs (putative class action members) brought suit against various cell phone manufacturers and retailers of wireless handheld devices on behalf of Pennsylvania purchasers and lessees of cell phones. The petitioner alleged that the cell phone manufacturers and retailers had improperly warranted and marketed their cell phones as safe to operate, and had suppressed information regarding the health risks of RF radiation, namely that respondents’ phones, absent headsets, were unsafe due to RF radiation emitted during a phone’s customary use. The U.S. District Court for the Eastern District of Pennsylvania ruled that federal law preempted the claims. On appeal, the U.S. Court of Appeals for the Third Circuit affirmed.
The plaintiffs then petitioned the U.S. Supreme Court for a writ of certiorari. Upon receiving the writ of certiorari, and on the same day that the WHO announced that it was classifying mobile phones as “possibly” carcinogenic as a result of its Interphone study, the Supreme Court invited the Solicitor General to file a brief in the case expressing the view of the United States. In his invitation brief, the Solicitor General recommended that the Supreme Court deny certiorari. Upon considering the brief, the Supreme Court denied certiorari in early October 2011, thereby ending the challenge to the federal preemption defense.
In March 2005, the Fourth Circuit Court of Appeals held in the Pinney case that the Federal Communications Act of 1996 (FCA) did not preempt multidistrict litigation, claiming Nokia Corp. and others had hidden the dangers of cell phone radiation from consumers. The court also found no evidence of any congressional objective to ensure uniform national RF radiation standards for cell phones. See Pinney, 402 F.3d 430 at 458.
The Murray case was a consolidation of six lawsuits filed in 2001 and 2002 that targeted Verizon, Motorola, AT&T, Sprint and Nokia, among others. The plaintiffs alleged that they suffered illnesses and injuries, including brain cancer, due to radiation from their cell phones, and that the wireless companies’ marketing misled them into believing their products were completely safe. They also claimed that their cell phones failed to meet FCC regulations limiting the amount of RF radiation they can emit. In 2007, the Superior Court of the District of Columbia dismissed the suits, holding that the claims, based on DC law, were preempted by the FCA.
The DC Circuit Court of Appeals agreed, but only in part. It held that the plaintiffs’ claims that they were injured by phones that met the FCC’s emissions standards were preempted and could not be pursued. However, the court held that claims under the DC Consumer Protection Act alleging the companies had lied or omitted information about potential safety issues were not preempted. The court also held that personal injury claims were not preempted if they were based on phones that either were built before 1996 (when the FCC began applying its radiation limits to mobile phones) or failed to meet the FCC emissions standards. See Murray v. Motorola, Inc., 982 A.2d 764 (D.C. 2009).
The next step for the surviving claims pending before the DC Superior Court is a hearing on general causation, expected to take place in 2013. There, the plaintiffs will seek to convince the court they have reasonable scientific evidence to support their claims that cell phone radiation can cause the injuries they allege. If the plaintiffs prevail at the hearing, the case would advance to full discovery.
In the absence of 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. And despite the hope the Italian Supreme Court ruling on the causal link between cell phone use and cancer may have raised for U.S. plaintiffs, the circumstances of the Italian case may prevent it from becoming an exemplar. The length of exposure in that case is at the extreme outer limit. Furthermore, the Italian case targeted a workers’ compensation authority, not telephone manufacturers and service providers that plaintiffs have targeted in the U.S. lawsuits. And even if plaintiffs in the United States can overcome the issue of preemption, it is extremely unlikely that they could prevail on the causation question, given the current state of scientific research.
Nevertheless, the increased exposure of people to cell phone radiation with the passage of time may yet affect scientific studies and their findings relative to the carcinogenic effects of cell phone radiation. It is therefore wise to heed the recommendations of the various studies to date and monitor developments in scientific research in preparation for possible future claims, as the long-term effects of cell phone RF exposure are still unknown.