Cell Phones on Trial

by Tom DiNome

Consumer concerns about cell phones causing cancer may have been put on hold by recent medical studies that show no hard link between the two. But that’s not stopping a steady stream of lawsuits that claim brain tumors were the result of cell phone use. Do these lawsuits stand a chance in the face of weighty, and respected, medical data to the contrary? Yes, according to many in the legal industry.

“The studies don’t rule out a low-level effect or an effect that will emerge, statistically and clearly, over more time,” says Michael L. Williams, managing partner with Williams, Dailey, and O’Leary in Portland, Ore., and an attorney who specializes in class action and mass tort cases.

Even the medical community, which is confident in its findings, agrees that more tests need to be conducted. A study recently published by the National Cancer Institute (NCI) found no increased risk of brain tumors among cell phone users. “There was no evidence of an increased risk, but it’s not equivalent to proving that they are safe,” says NCI’s Dr. Peter Inskip, one of the study’s authors. “One could argue that perhaps it’s too soon to know for sure, so that’s why it’s important that additional studies be done.”

The NCI completed its data collection in 1998, after studying 800 adult brain tumor cases and 800 people without brain tumors. Participants were asked questions about the frequency and level of their cell phone use. “Our data did not provide any indication of risk among people who started using their phones relatively recently,” Inskip adds. “It did not answer the question of what the level of risk is among people who have used them for a longer period of time, or at extremely high levels of use.” More long-term data is being collected through studies like the one being coordinated by the International Agency for Research on Cancer, which involves 6,000 participants.

With most signs pointing to a fairly high level of safety, plaintiffs will likely plead their case by questioning the studies’ methodology and bringing in medical experts to refute the findings. “They just have to prove that there is a 51 percent chance that the cell phone caused the cancer,” says Tom Harrison, publisher of Lawyers Weekly USA, a Boston-based national newspaper for small law firms. “They don’t have to prove that cell phones cause cancer to millions of people. They just have to prove that it’s more likely than not that it caused one person’s cancer.”

The Cellular Telecommunications Industry Association released a statement that “after a substantial amount of research, scientists, and governments around the world continue to reaffirm that there is no public health threat from the use of wireless phones.” The Federal Communications Commission (FCC) has also issued safety guidelines and acceptable levels for radio frequency emitting devices, including cell phones. “But the fact that the FCC regulates cell phones certainly does not prevent people from suing in court to claim they are still harmful,” says Jim Speta, an assistant professor of law at Northwestern University. For the plaintiffs, proving their point could still be an uphill battle, but not an impossible task.