Cellphone Radiation Judge Seeks More Briefing on Preemption Motion

U.S. District Judge James Cain for Western Louisiana in Lake Charles ordered parties in a cellphone RF radiation lawsuit Friday to file briefs by Dec. 5 on the plaintiffs’ request for leave to conduct discovery as they prepare to defend against the defendants’ motion to dismiss on grounds that the case is preempted by federal law.

The April 2021 complaint argues the cellphone industry worked to suppress information showing many cellphones don’t comply with the FCC’s specific absorption rate (SAR) limitations for how much RF radiation is absorbed by phone users, and says this led to Frank Walker’s death from brain cancer. Walker’s wife and two sons are the plaintiffs in the case.

Defendants AT&T, Cricket, CTIA and Motorola filed their preemption dismissal motions last month (see 2210180078). TIA and ZTE filed separate motions to dismiss for lack of personal jurisdiction, and ZTE later joined the preemption motion. Cain decided briefing on the personal jurisdiction motion should be stayed until the preemption motion is resolved, said his order (docket 2:21-cv-00923[).

The plaintiffs believe that “under the current jurisprudence,” the phones that Walker used before the Telecommunications Act took effect in August 1996 “did not comply with the SAR standard, and we believe we’re entitled to prove that factually,” attorney Hunter Lundy told a telephone status conference Thursday. “Anything after 1996, if the plaintiffs can prove they didn’t comply with the SAR standard, it’s free game,” he said.

“Here we have a plaintiff who used Motorola phones before the Act was even in place and then continued to use Motorola phones,” said Lundy. “I think that we’re entitled to conduct discovery in this case and develop the facts as to what was known and was not compliant.”

The plaintiffs want the judge to treat the defendants’ preemption motion just as he would treat “a summary judgment motion,” said Lundy. When the court sets a hearing on the preemption motion, “then we put forth our evidence why it’s not preempted,” he said. “We want to move forward with discovery as fast as we can.” Lundy thinks “the law will support what we’re arguing,” he said.

The defendants’ position is that “no discovery is necessary” on the preemption motion, countered Motorola attorney Terry Dee with Winston & Strawn in Chicago. “The plaintiffs’ claims are all based on the core allegation that the cellphones Mr. Walker used did not comply with the FCC regulations for radio-frequency emissions, and the claim is those are the emissions that caused Mr. Walker’s injuries,” he said.

The preemption motion says that, under federal law, “the plaintiffs can’t pursue those claims of noncompliance in this court until they’ve first gotten a determination from the FCC that the phones are not compliant,” said Dee. “That motion, that legal issue, is not dependent on any finding by this court that the phones are compliant or not compliant,” he said. “The very point of our motion is that the determination of whether a phone that the FCC certifies as compliant with the FCC’s regulation is the FCC’s to make, not for the courts around the country in various tort actions.” Dee added that this “isn’t a novel preemption argument.”

Cain expressed concern that even if he were to grant discovery and permit the plaintiffs to develop their facts, “that preemption would still apply,” cautioning that “maybe I’m wrong.” Perhaps “some cases out there” show preemption would not apply, he said. “I need a little more briefing and a little more case law on all this.”