Evidence denied in cell phone lawsuit

Blow dealt to campaign to link device to cancer

Doctor suing for $800 million

October 01, 2002|By Gail Gibson | Gail Gibson,SUN STAFF

A federal judge in Baltimore dealt a critical blow yesterday to the growing legal campaign to link wireless telephones to cancer, rejecting the scientific evidence offered by attorneys for a Jarrettsville physician who said the mobile phone he had depended on for much of the 1990s caused his brain tumor.

The ruling by U.S. District Judge Catherine C. Blake is likely to sink Dr. Christopher J. Newman's $800 million lawsuit against the wireless industry, a case that had received national attention because it was the first in the country where a judge had agreed to hold a detailed evidence hearing.

In her ruling, Blake said the expert testimony offered by Newman's attorneys on the question of whether the gadgets - used by some 100 million Americans - cause brain cancer was too flawed or too weak to be admitted at a trial.

One central question before Blake was whether the evidence was "generally accepted" by a scientific community. "The short answer is that no such general acceptance has been shown," Blake wrote.

The wireless companies are expected to ask the judge to dismiss the case entirely. The ruling also could jeopardize a related class action lawsuit, also before Blake, in which Baltimore lawyer Peter G. Angelos sought to force the industry to pay for headsets that could protect cellular phone users from possible radiation hazards.

"It should send a fairly strong message in that some pretty powerful lawyers, with significant resources, were able to go out and look all over the world for experts to testify, and they failed to meet the minimum standards for expertise and reliability," said Norman D. Sandler, director of global strategic issues for Motorola Inc., a lead defendant in the case.

Attorneys for Newman, a 42-year-old neurologist who has undergone five surgeries on his brain tumor, said they would closely review the 21-page decision before deciding what to do next. Newman was found to have brain cancer in 1998, and his lawyers had tried to link the disease to Newman's use of an analog phone in the mid-1990s.

"We're disappointed in the decision," said John C.M. Angelos, a nephew of Peter Angelos and one of the lead lawyers in Newman's case. "We were hopeful that we would have been successful, but clearly the court has ruled against us on this matter."

Baltimore attorney Joanne Suder said the decision was a significant setback for Newman's lawsuit, but she compared it to the early rounds of other large-scale plaintiff injury cases where early industry wins gradually collapsed.

"You have to look at it in the total scheme of things - it does closely echo early decisions in tobacco and asbestos cases," Suder said. "The decision is not a good one for Dr. Newman, but it is not binding on the large number of brain cancer victims around the world."

Cell phone manufacturers have won all of the handful of lawsuits brought against them in U.S. courts during the past decade. Until Newman's lawsuit, however, none of the cases reached the stage where a judge was asked to decide what scientific evidence, if any, should be admitted at a trial.

A 1993 Supreme Court decision requires trial-level judges to serve as gatekeepers in determining what scientific testimony can be presented to jurors. Under the Daubert guidelines, named for the 1993 case, federal judges are required to determine whether potential scientific evidence and expert testimony are generally accepted by the scientific community and are considered "reliable and relevant."

During a five-day evidence hearing in late February, Newman's lawyers built their case around a Swedish researcher's then-unpublished findings that tumors in brain cancer patients were more likely to be found on the same side of the head where a wireless phone was used. They also pointed to research showing DNA damage in lab rats exposed to concentrated doses of radiation.

In her decision, Blake sharply questioned the validity of the studies by Lennart Hardell, the Swedish oncologist who was at the center of Newman's case. Among the problems noted by the judge was the issue of "recall bias" - meaning that patients with brain tumors on the right side of their head, for instance, were more likely to report that they had used their wireless phone on that side.

Blake also noted that stacked against Hardell's findings were the numerous published studies all showing no "causal association between the use of cell phones and the development of brain cancer."

"Also significant are the national incidence data for brain tumors," Blake wrote. "Tumors of the type diagnosed in Dr. Newman have been recognized to be in existence for close to a hundred years, with most having no known cause. There have been variations, but no significant overall change in the incidence of such tumors despite the increasing use of cell phones among the American population."

In a written statement, officials with the Washington-based Cellular Telecommunications & Internet Association said they were "gratified" by the ruling.

"Today's decision is consistent with the overall judgment of the international scientific community that the use of mobile phones does not play any role in brain cancer or any other known health disease," the statement said.

At issue in the cell phone lawsuits across the country is whether the electromagnetic radiation that the phones give off through their antennas poses significant health risks.

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