Research linking cell phones, brain cancer gets court hearing

Judge must decide what scientific evidence may be admitted at trial

March 03, 2002|By Gail Gibson | Gail Gibson,SUN STAFF

At first, he had trouble walking. Then, while working out one morning in 1997, Jarrettsville physician Christopher J. Newman suddenly lost sight in one eye. A year later, he was told he had a malignant brain tumor and began questioning whether the cellular phone he had depended on for much of the 1990s was to blame.

Newman was not the first to raise the issue. But after years of conflicting research and lawsuits that went nowhere, it is his $800 million case against the wireless industry that is providing the first detailed public probe of the persistent question of whether cell phones cause cancer.

During a five-day hearing last week in Baltimore's federal courthouse, attorneys for Newman sought to persuade U.S. District Judge Catherine C. Blake of the legitimacy of research that could link one of the country's most popular consumer items to brain cancer. Industry lawyers countered with a lineup of crisp, well-credentialed experts who dismissed the studies as flawed.

FOR THE RECORD - An article that appeared Sunday in The Sun about a local physician's lawsuit against the cellular phone industry incorrectly identified one of the plaintiff's attorneys. John C.M. Angelos is a nephew of Peter G. Angelos, not his son. The Sun regrets the errors.

"If cell phone use were a real carcinogen, you'd be seeing it show up in other studies, like other carcinogens," said Thomas C. Watson, a Washington attorney who led a team of about a dozen lawyers for the wireless industry last week.

The players in the case are big - Newman is represented by the law firm of Peter G. Angelos, who earned his fortune in watershed cases against the asbestos and tobacco industries - and the stakes are high for the $45 billion-a-year wireless phone industry.

Cell phone manufacturers have won all of the handful of lawsuits filed against them over the past decade. But none of the earlier cases reached the stage Newman's is at now: where a judge must decide what scientific evidence, if any, should be admitted if the case goes to trial.

The mobile phone industry has a strong hand. A tentative consensus has emerged among scientists and federal regulators that cell phones are safe, although many researchers have called for more studies. One of the industry's witnesses last week was a researcher for the American Cancer Society who flatly rejected the idea that the radiation emitted by cell phones can lead to brain cancer.

"There is no association, given the way cell phones have been used to date and given the way they were used by Dr. Newman," said Eugenia Calle, director of analytic epidemiology for the cancer society, who reviewed published studies and scientific panel reports at the request of industry lawyers.

The Angelos team, which included his son, John C.M. Angelos, and a longtime deputy, John A. Pica Jr., built its case last week around research showing DNA damage in lab rats exposed to concentrated doses of radiation and a Swedish researcher's unpublished findings that tumors in brain cancer patients were more likely to be found on the side of the head where a wireless phone was used.

The two researchers, as well as other witnesses for Newman, acknowledge that their view that cell phone radiation can lead to cancer is not widely held. But they insist that it is only a matter of time before other studies reach the same conclusions, putting cell phones in the same category as faulty truck tires or tobacco.

Plaintiff witness Jerry L. Phillips, a biochemist from Colorado, was pressed last week by an industry lawyer to acknowledge he could not pinpoint what level of cell phone exposure would lead to health problems. He shot back: "No more than I know how many cigarettes it takes to produce lung cancer."

Exploring potential health risks and proving a direct connection in court, though, are two very different things. A 1993 Supreme Court decision requires trial judges to serve as critical gatekeepers in determining what scientific testimony is admitted at trial. Under so-called Daubert guidelines, named for the 1993 case, judges must scrutinize whether scientific evidence and expert testimony are generally accepted by a scientific community and are considered reliable and relevant.

The strict standards apply not only to questions about new science and technology. A federal judge in Philadelphia this year limited how fingerprint evidence, one of the oldest forensic techniques, could be used in a pending drug conspiracy case.

Newman's case against industry giant Motorola Inc. and wireless carrier Cellular One turns entirely on the questions surrounding the scientific evidence. A ruling that sharply restricts what science his attorneys can present at trial could effectively end the case and would likely affect future litigation.

Similar cases are pending across the country; a new batch of lawsuits was filed last week in Washington by lawyer Joanne L. Suder, who has worked closely with Angelos. Additionally, Angelos has brought a group of class-action lawsuits against the wireless industry that would force cell phone manufacturers to provide headsets to mobile phone users as a way to protect against alleged health risks.

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