Looking Back to Move Forward in Cell Phone Litigation: Agent Orange and Bendectin Still Have a Grasp on Today’s Toxic Tort Litigation

By: Jacob Born

I. Introduction

Recently, Time magazine published an article titled “Cell-Phone Safety. Your mobile

emits a tiny amount of radiation. Is that safe in the long run?”1 The article is a brief and

informative summary of current research and the recent developments of public anxiety

pertaining to the long term effects of cell phone radiation on the human body.2 Although Time’s

article is directed towards American consumers, the piece accurately identifies the opponents and

sets the stage of turmoil that is representative of the battle that is currently playing out in cell

phone litigation within our judiciary system.3 On one side, you have the cell phone industry

claiming that cell phone radiation has yet to be proven harmful.4 On the other side, there are cell

phone users who have been diagnosed with life threatening conditions and who blame cell phone

radiation,5 which consequently leaves other consumers worried about the long term effects of the

technology.6

As Time’s article mentions, brain tumors and cancer are the most prominent long term

public health care concerns related to cell phone radiation.7 Currently, no clear or uncontested

scientific conclusions have been made linking long term cell phone use and brain tumors, but

1 Bryan Walsh, Cell Phone Safety. Your mobile emits a tiny amount of radiation. Is that safe in the long run?, TIME, March 15, 2010, at 47. 2 Id. at 48.3 Id.4 Id.5 Id.6 E.g. Id.7 Id.

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medical authorities recommend that Americans should avoid unnecessary risks.8 Governmental

studies, conducted in conjunction with the cell phone industry, claim that cell phone radiation is

safe.9 However, scientific and legal scholars question the studies’ results and conclusions

because the conclusions could be biased and self serving.10 Time’s conclusion of its article leaves

us, as American consumers, squarely with the issue that the judiciary faces in cell phone

litigation: Is there a causal link between long term cell phone use and cancer?11

Between 1989 and 1992, Susan Reynard, Richard Ward, and Christopher Newman were

all diagnosed with brain tumors.12 All three were cell phone users.13 Further, all three of their

brain tumors were located near areas of the head relatively close to where most Americans hold a

cell phone when they make a call.14 The similarities between the three cases are astounding, and

beyond mere coincidence.15 After diagnosis, Susan Reynard, Richard Ward, and Christopher

Newman all turned to the judicial system alleging that cell phone radiation caused the

development and acceleration of their brain tumors.16 Reynard’s and Ward’s cases were

dismissed at summary judgment,17 and Newman’s case failed after the court granted the

defendant’s motion to exclude the plaintiff’s causation expert.18 Reynard, Ward, and Newman’s

cases were all dismissed because of a lack of admissible causation evidence.19

8 Id.9 Federal Communications Commission, Radio Frequency Safety, http://www.fcc.gov/oet/rfsafety/rf-faqs.html (last visited Apr. 19, 2010).10 Laura Grasso, Cellular Telephones and the Potential Hazards for RF Radiation: Responses to the Fear and Controversy, 3 VA. J.L. & TECH. 2, 12-28 (1998) discussing the FCC, FDA, and Industry Responses to research.11 Walsh, supra note 1, at 48.12 Reynard v. NEC Corp., 887 F.Supp. 1500, 1502 (M.D. Fla. 1995); Newman v. Motorola, Inc., 218 F.Supp.2d 769, 772 (D. Md. 2002); Motorola v.Ward, 478 S.E.2d 465, 466 (Ga.Ct. App. 1997). 13 Reynard,887 F.Supp. at 1502; Newman, 218 F.Supp.2d. at 772; Ward, 478 S.E.2d at 466.14 887 F.Supp. at 1502-03; 218 F.Supp.2d. at 772; 478 S.E.2d at 466.15 See generally 887 F.Supp. at 1502; 218 F.Supp.2d. at 772; 478 S.E.2d at 466.16 887 F.Supp. at 1502; 218 F.Supp.2d. at 772; 478 S.E.2d at 466.17 887 F.Supp. at 1501; 478 S.E.2d at 466.18 218 F.Supp.2d. at 783.19 887 F.Supp. at 1502; 218 F.Supp.2d. at 772; 478 S.E.2d at 466.

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During the development of cell phone litigation, plaintiffs have met a multitude of

barriers during litigation that have prevented their cases from proceeding to trial.20 Numerous

causes of action have been filed based on the harmful effects of cell phone radiation. 21 However,

only Reynard, Ward, and Newman have reached the causation stage of cell phone litigation.22

Once a cell phone plaintiff’s case reaches the causation portion of litigation, the development of

causation and evidentiary standards have proven to be substantial, and thus far insurmountable,

barriers that have prevented plaintiffs from reaching trial.23

This paper addresses the causation and evidentiary issues that have precluded plaintiffs

from trial in cell phone litigation. Part II of this paper addresses the current scientific background

and causation issues surrounding cell phone litigation. Part III addresses the evidentiary

background and current trends preventing plaintiffs from trial. Part IV argues that independent

research is the most pressing need in cell phone litigation. Part IV also suggests that judicial

reform in cell phone litigation is warranted by examining the Agent Orange and Bendectin

litigations. Part V concludes that independent research will be the most beneficial to cell phone

plaintiffs, but until adequate research is produced judicial reform is proper.

II. Causation in Cell Phone Litigation

20 See generally Pinney v. Nokia, Inc., 402 F.3d 430,430 (4th Cir. 2005). The class plaintiffs in Pinney overcame preemption issues, but failed on removal. See generally Schiffner v. Motorola, Inc., 672 N.E.2d 868, 874 (Ill. App. Ct. 1998); Verb v. Motorola, Inc., 672 N.E.2d 1287, 1243 (Ill. App. Ct. 1996). The Federal Electronic Product Control Act preempted the plaintiffs’ state consumer fraud actions in Schiffner and Verb. See generally Newman v. Motorola, Inc., F.Supp.2d 717, 719 (D. Md. 2000). The plaintiff in Newman named numerous defendants, however the district court stated that the Maryland’s long-arm statute did not sufficiently reach the parent holding companies for personal jurisdiction. See generally Wolf, infra note 53 at 289, 278. Scholarly commentary identifies that plaintiffs in cell phone litigation have confronted jurisdictional issues and naming the proper defendants.21 See generally Pinney, 402 F.3d at 430 (4th Cir. 2005); Reynard v. NEC Corp., 887 F.Supp. 1500, 1502 (M.D. Fla. 1995); Newman v. Motorola, Inc., 218 F.Supp.2d 769, 772 (D. Md. 2002); Motorola Inc. v. Ward, 478 S.E.2d 465, 465 (Ga. Ct. App. 1997); Schiffner, 672 N.E.2d at 874; Verb, 672 N.E.2d at 1243; Indiana Michigan Power Co. v. Runge, 717 N.E.2d 216 (Ind. Ct. App. 1999).22 Reynard, 887 F.Supp. at 1508; Newman v. Motorola, Inc., 218 F.Supp.2d 769, 783 (D. Md. 2002); Ward, 478 S.E.2d at 466. The plaintiffs in Reynard, Newman, and Ward have all failed to establish causation during summary judgment or in pretrial motions. 23 See 887 F.Supp. at 1500; 218 F.Supp.2d at 769; 478 S.E.2d at 465.

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This portion of the paper discusses the current scientific background surrounding cell

phone radiation and the development of brain tumors. Part A discusses the how cell phones

operate, cell phone radiation, and cell phone saturation in the American population. Part B

discusses the legal causation theories and burdens currently imposed upon parties in toxic tort

cases and evidentiary tools that are commonly used to prove causation. Part C discusses the most

recent epidemiological studies relevant to causation in cell phone litigation.

A. How Cell Phones Function and Cell Phone Saturation in the American Population

Cell phones are wireless handheld telephones that function by emitting a form of

radiation called radio frequency radiation.24 Radio frequency radiation, or RFR, is a type of

electromagnetic radiation that can be found in two forms, (1) non-ionizing radiation or (2)

ionizing radiation. 25 Microwaves, radios, and cell phones use non-ionizing radio frequency

radiation.26 By comparison, gamma rays, X-rays, and other types of nuclear radiation are forms

of ionizing radiation.27 The difference between ionizing and non-ionizing radiation is that

ionizing radiation can cause thermal damage to atomic matter by dislodging electrons from the

atoms.28 Generally, non-ionizing radio frequency radiation is claimed to be harmless to humans.

With rise of litigation by cell phone users diagnosed with malignant and benign brain tumors, the

harmlessness of cell phone’s non-ionizing radio frequency radiation has become suspect.29

Although the causal link has not been clearly established, numerous theories exist

concerning the negative effects of cell phone radiation.30 Research suggests that cell phone 24 218 F.Supp. at 773. 25 Grasso, supra note 10 at 6.26 Dr. Sachdev A. Kohli, Cell Phones and Tumors: Still in No Man’s Land, 46 INDIAN J. CANCER 5, 6 (2009).27 Grasso, supra note 10 at 6. 28 Id. 29 Id. 30 Suzanne Capriotti, Is there a future for cell phone litigation?, 18 J. CONTEMP. HEALTH L. & POL’Y 489, 493 (2002). Although research has not established a definite health risk, scientists note that cell phone radiation could

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radiation could have a number of adverse effects on human brain activity.31 Scientists have

questioned whether cell phone radiation could adversely affect the blood pressure,32 cell

membranes33, and calcium levels in the human brain.34

The recent development of brain tumors in a small number of cell phone users has raised

an enormous amount of public anxiety because of the potential pervasive impact on the

American population.35 In the last fifteen years, the number of cell phone users in the United

States has grown exponentially.36 As of June 2005, the Cellular Telephone Industries

Association, or CTIA,37 estimated that 194.4 million Americans were regular cell phone users.38

CTIA’s estimation of users indicates that, at that time, sixty-six percent of the United States

citizens were cell phone subscribers.39 By June 2009, CTIA estimated that 276.6 million

Americans were cell phone subscribers, which indicates that ninety percent of the American

population use cell phones.40

B. Causation in Toxic Tort Litigation

change blood pressure inside the brain, affect the way the brain metabolizes calcium, and allow blood into the brain through the brain’s blood barrier. 31 Id. at 493-94.32 Walsh, supra note 1 at 48.33 Id.34 Id.35 See Walsh, supra note 1 at 47.36See generally Vini G. Khurana et al., Cell Phones and Brain Tumors: a Review Including the Long-term Epidemiologic Data, 72 SURGICAL NEUROLOGY 205, 06 (2009).37 Cellular Telephone Industries Association, About us, http://www.ctia.org/aboutCTIA/ (last visited Apr. 19, 2010).The Cellular Telephone Industries Association is an international nonprofit membership organization that represents the wireless communications industry. CTIA works in conjunction with the federal government and wireless communications industry to conduct research and advocate for the wireless communications industry.38 Cellular Telephone Industries Association, Wireless Quick Facts, http://www.ctia.org/media/industry_info/index. cfm/AID/10323 (last visited Apr. 19, 2010).39 Id.40 Id.

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Plaintiffs in any toxic tort are required to show two types of causation.41 First, plaintiffs

must show general causation.42 General causation requires the plaintiff to show that the substance

is capable of causing the injury in question.43 Second, the plaintiff must prove specific

causation.44 Specific causation requires the plaintiff to demonstrate that the particular substance

caused the particular plaintiff’s injury.45 Specific causation has two parts.46 The plaintiff first

must show that the level of exposure was capable of causing the injury, and then the plaintiff

must prove that the level of exposure doubled the plaintiff’s risk of developing the injury. 47 The

doubling effect is usually shown by an odds rate or odds ratio.48 Odds ratios compare whether the

probability of a certain event is the same for two groups.49 An odds ratio of one means that the

probability, or risk, is equal in both groups.50If the odds ratio is more than one, then the

probability or risk for the occurrence is more likely for the test group.51 In a toxic tort, specific

causation necessarily requires the proof of general causation; therefore, the plaintiffs’ ultimate

causation hurdle involves satisfying the specific causation burden.52

A plethora of studies involving the effects of cell phone radiation on the human body

have been conducted.53 Since the 1980’s, scientists have conducted two types of studies relevant 41 David E. Bernstein, Getting to Causation in Toxic Tort Cases, 74 BROOK. L. REV. 51, 52-53 (2008). 42 Id.43 Id. at 52.44 Id.45 Id.46 Id. at 53.47 Id. at 54.48 See generally Khurana supra note 36 at 205-13. See generally Hardell infra note 97 at 114-18. The statistical methods in the Hardell and Interphone studies expressed statistical significance using odds ratios.49 Children’s Mercy Hospitals & Clinics’ Stats Repository, http://www.cmh.edu/stats/definition/or.htm (last visited Apr. 4, 2010).50 Id.51 Id. An odds ratio less than one implies that the probability or risk for the first group is less likely. 52 Bernstein supra note 41 at 53.53 E.g., Benjamin J. Wolf, Can You Hear Me Now?: Cellular Phones and Mass Tort Litigation After Newman v. Motorola, Inc., 14 ALB. L.J. SCI. & TECH. 267, 282-86 (2003). This author set out and described the numerous studies and their competing views. Those studies include: CTIA and FDA joint studies, American Medical Association studies, New England Journal of Medicine Studies, Canadian Bioelectromagnetic Society studies, United States Department of Health and Human Services Environmental Health Perspective studies, British Mobile

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to cell phone litigation: animal and epidemiological studies.54 Animal studies are experimental

studies where scientists expose animals to agents or chemicals and measure the development of

certain factors or conditions in the animal population.55 Epidemiological studies are

observational studies where scientists measure exposure rates in humans that are expressed in

statistical ratios.56 Both types of studies have their advantages and disadvantages.57

1. Animal Studies

Animal studies are advantageous because they allow scientists a significant level of

control during testing.58 One of the prime advantages in animal studies is that the tests are

generally experimental, as compared to observational.59 Experimental tests allow scientists to

actually expose animals to possibly harmful agents at high doses that would not be possible in

humans.60 Thus, animal studies do not trigger the same ethical considerations as human

studies.61 Animals’ incubation period, development, and onset of conditions may be hastened

because animals generally have shorter life spans.62 Finally, animals can be exterminated and

dissected directly after studies for research purposes. 63

Telecommunications Health Research studies, Japanese private industry studies, and studies conducted at the Swedish University of Orebro. The author’s conclusion was that the studies do not offer conclusive proof, but no one will rule out the causal link between cell phone radiation and health hazards. Walsh supra note 1 at 47-48. 54 E.g., Michael D. Green, Expert Witnesses and Sufficiency of Evidence in Toxic Substances Litigation: The Legacy of Agent Orange and Bendectin Litigation, 86 NW. U. L. REV. 643, 646, 54 (1992).55 Id.at 654.56 Id.at 647.57 E.g,. Id. at 647, 54.58 Id. at 654.59 Id.60 Id.61 Id. Scientists can expose animals to higher levels and doses of experimental agents in an attempt to generate a positive correlation between the exposure and desired effect without raising ethical issues that would be involved in human epidemiological tests. Also, Scientists can kill and dissect the animals after the exposure or treatment has been completed to discover the effects of the exposure on the body of the animals. These options are unavailable in human epidemiological studies. 62 Id.63 Id.

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Although animal studies have scientific advantages, external validity is the largest and

essentially fatal disadvantage to animal studies.64 The scientific community and, more

importantly, the legal community are hesitant to apply the results from experimental animal

studies to humans.65 In Reynard v. NEC Corporation, the plaintiffs’ causation expert attempted

to base his conclusions on strong inferential data from peer reviewed animal studies, human

brain studies, and a congressional subcommittee report.66 The court reasoned that without

epidemiological support the animal studies were not admissible, because the studies were too

speculative to show causation. 67 Although the plaintiff’s causation expert did not include the

statistical analysis or results of the animal studies, the court stated that such uncertainty in mass

torts calls for judges to screen more thoroughly for speculative scientific evidence.68 Similarly in

Newman v. Motorola, Inc., the plaintiffs attempted to support their epidemiological evidence

with animal studies that indicated a causal connection between cell phone radiation and the

development of malignant tumors.69 Notably, experts on both sides agreed that animal studies by

themselves would not be sufficient to establish a causal link.70 The studies relied upon by the

plaintiff’s causation expert analyzed the growth of malignant tissue and damage to DNA in rats

that were exposed to a type of radiation similar to cell phone radiation.71 The court found the

evidence inadmissible because it was not relevant.72 The Newman court concluded that the

64 Id. at 654-55. External validity is the ability to generalize the results of one group to another group. 65 See generally, Newman v. Motorola, Inc., 218 F.Supp.2d 769, 781 (D. Md. 2002). Animal studies were found to be inadmissible in Newman. Green, supra note 54 at 654. Professor Michal Green supports this weakness of extrapolation, which he terms interspecies variation. 66 Reynard v. NEC Corp., 887 F.Supp. 1500, 1506-07 (M.D. Fla. 1995). The congressional subcommittee admitted that no research had been completed on long term human exposure to low levels of radiation specifically from cell phones. 67 Id.68 Id.69 Newman, 218 F.Supp.2d 769, 781 (D. Md. 2002). Dr. Jerry Phillips relied on three animal studies, conducted by Dr. Henry Lai, where rats were exposed to radiation level similar to level used in cell phones. 70 Id. at 775.71 Id. 72 Id. at 781.

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animal studies translated poorly to the plaintiffs’ case, because of low population numbers in the

studies and the levels of radiation were not sufficiently similar.73 In other words, the Newman

court determined that the animal studies were too speculative.74

2. Epidemiologic Studies

“Epidemiology is the study of diseases in populations of humans or other animals,

specifically how, when and where they occur.”75 Epidemiologists research specific variables to

determine factors of risk associated with disease.76 Epidemiological studies are expressed in

statistical ratios.77 The higher the ratio expressed the higher the correlation between exposure and

incidence.78

Epidemiological studies can never prove causation.79 Epidemiological tests can only

show the correlation between exposure and the incidence of the disease.80 The higher the

correlation the more certain the association, but it cannot prove the causation. 81

“Epidemiological studies can be divided into two basic types depending on (a) whether the

events have already happened (retrospective) or (b) whether the event may happen in the future

(prospective).”82 The strength of an epidemiological study is dependent upon the number of

73 Id.74 Id. at 783.75 Extoxnet, Toxicology Information Brief, Epidemiology, http://pmep.cce.cornell.edu/profiles/extoxnet/TIB/ epidemiology.html (last visited Apr. 19, 2010).76 Id.77 Id.78 Green, supra note 54, at 647. 79 Id.80 Id.81 Id.82 Extoxnet, supra note 82 at Toxicology Information Brief, Epidemiology.

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participants.83 The larger the population that is included in the study, the more likely a reliable

correlation will be found between the variables measured.84

Nevertheless, the strength of the epidemiological study can be limited by biases and

errors committed or omitted by the researcher in the sampling, selection, or evaluation.85

Examples of errors and biases are selection bias, diagnostic bias, recall bias, confounders, and

random sampling errors, which all could possibly affect the validity of the research.86 Further,

epidemiological studies have ethical limitations because researchers cannot expose participants

to toxic agents.87 Despite the possibility for errors and ethical limitations, Professor Michael

Green asserts that epidemiological studies, in general, are at the pinnacle of indirect evidence

hierarchy in toxic torts.88

The available long term epidemiological causation evidence in cell phone litigation is

scarce.89 Of the three cases that have reached the causation stage of litigation, only Newman

presented epidemiological causation evidence.90 Reynard and Ward illustrate the current weak

epidemiological record.91 In Motorola v. Ward, the plaintiff’s causation experts concluded that 83 Id.84 Id.85 Id. at 649-52.There are numerous possible systematic errors involved in epidemiological studies, which include: selection bias, diagnostic bias, measurement exposure, recall bias, unaccounted confounders, and random sampling errors. Selection bias is an error that involves the scientist overlooking a variable that could make a participant in the population more or less susceptible to the desired result. Diagnostic bias occurs when the disease measured has not been accurately identified or defined. Measurement exposure is an error related to the study failing to adequately measure the onset time of the disease, which could result in an understatement of the effect. Recall bias involves the population having difficulties being able to accurately recall a factor relevant to the study. An unaccounted confounder is an extraneous variable unaccounted for by the study that influences the result of the test. Random sampling errors are errors of chance, such as choice, that occur within multiple studies of the same population that may affect the end result.86Id. at 648. It is ethically wrong for scientist to expose or subject human participants to agents that could injure or harm them. 87 Id.88 Id. at 658.89 See Wolf, supra note 53, at 282.90 See Newman v. Motorola, Inc., 218 F.Supp.2d 769, 776 (D.Md. 2002).91Reynard v. NEC, Corp., 887 F.Supp. 1500, 1505 (M.D. Fla. 1995); Motorola v. Ward, 478 S.E.2d 465, 466 (Ga. Ct. App. 1997).Both plaintiffs in Reynard and Ward failed to present any epidemiological support for establishing causation.

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cell phone radiation caused or accelerated the plaintiff’s cancer.92 The Ward court granted

summary judgment to the defendants because the plaintiff’s causation experts failed to support

their conclusions with epidemiological evidence.93 The court explained that a jury would have to

speculate about whether a causal connection exists between the cell phone radiation and the

development of the cancer.94 Similarly in Reynard v. NEC Corporation, the court granted

summary judgment for the defendants because the plaintiff’s primary causation expert failed to

support his conclusions with epidemiological evidence.95 The court explained that “theoretical

speculations, unsupported assumptions, and conclusory allegations advanced by an expert” are

not sufficient to establish a material issue of fact without support of specific facts or data.96

Only two long term epidemiological studies have been conducted researching the link

between cell phone radiation and brain tumors.97 The results of the studies have been subject for

much controversy, but the Hardell and Interphone studies are the only long term epidemiological

studies that currently exist in this area of research.98 As of today, only Dr. Hardell’s

epidemiological evidence has been used in litigation.99

Dr. Lenart Hardell100 began his epidemiological studies of cell phone users and brain

cancer in Sweden during the late 1990’s.101 Dr. Hardell’s studies analyzed the causal link

92 Ward, 478 S.E.2d at 466.93 Id.94 Id.95 Reynard, 887 F.Supp. at 1506. The court determined that the defendants were entitled to a judgment as a matter of law because the unsupported conclusions did not meet Florida’s “but for” standard for wrongful death claims. 96 Reynard, 887 F.Supp. at 1506.(citing Bell v. Swift Adhesives, Inc., 804 F.Supp. 1577, 1579(S.D.Ga. 1992)).97 See Lennart Hardell et al., Epidemiological Evidence for an Association Between Use of Wireless Phones and Tumor Diseases, 16 PATHOPHYSIOLOGY 113, 113 (2009). See Khurana, supra note 36 at 208-09.98 See Hardell, supra note 96 at 113; Khurana supra note 36 at 208-09.99 See Newman v. Motorola, Inc., 218 F.Supp.2d 769, 776 (D. Md. 2002).100 Dr. Hardell is a professor of oncology at the University Hospital in Orebro, Sweden. Newman v. Motorola, 218 F.Supp.2d 769, 776 (D.Md. 2002).101 Kurana, supra note 36 at 208.

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between long term cell phone use and the development of brain tumors.102 Dr. Hardell’s

epidemiological studies were the first of their kind because the studies accounted for a longer

latency periods as a variable during research.103 Dr. Hardell apparently conducted his research in

two waves of research where he compiled data from participant responses given during

telephone interviews and mailed questionnaires.104

Dr. Hardell’s most recent epidemiological studies were conducted in 2006.105 In 2006,

utilizing questionnaires and telephone interviews, Dr. Hardell measured the occurrence rates of

three different types of brain tumors: Glioma,106 acoustic neuroma,107 meningioma.108 The 2006

Hardell study consisted of 136 cases and 297 controls. 109 Dr. Hardell pooled a group of

participants that had been cell phone users for a period longer than ten years under each of the

three subgroups of brain tumors.110 Additionally, Dr. Hardell analyzed whether the tumor

developed on the side of the participant’s brain where he or she primarily held the phone.111 If the

tumor developed on the same side of brain where the participant primarily held the phone during

calls, the participant was termed and analyzed under the ipsalateral category.112 If the tumor

developed on the opposite side of the brain, the participant was group and analyzed under the

contralateral category.113

102 Newman, 218 F.Supp.2d at 776.103 Kurana, supra note 36 at 209.104 218 F.Supp.2d at 776-77.105 Kurana, supra note 36 at .106Hardell supra note at 115. Glioma is a malignant type of brain tumor and comprises about 60% of all central nervous system tumors. 107 Id. at 116. Acoustic neuromas are benign and cannot become cancerous, however they grow on and around the auditory nerves in the auditory canal and can grow into the brain stem. 108 Id. Meningioma arises from the outer layer of the brain or the covering layers of the central nervous system. The majority are benign tumors that are encapsulated and well demarked from surrounding tissue. 109 See Id.110 Id. at 114, 115, 117. 111 Id 113.112 Id. 113 Id.

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The results from the 2006 Hardell study show strong support of a link between long term

cell phone exposure and the development of brain tumors.114 In the ipsalateral group, the

participants were twice as likely to develop a tumor on the side of their brain where they

primarily held their phones during use.115 The long term ipsalateral gioma group had an odds rate

of 4.4 and contralateral odds rate of 2.8.116 The long term ispalateral acoustic neuroma group had

an odds ratio of 3.5 and a contralateral odds ratio of 2.4.117 However, the long term ipsalateral

meningioma group had an odds ratio of just 2.0 and a contralateral odd ratio of 1.6, which is

below the legal causation standard of 2.0.118 Despite the lower rates in the meningioma groups,

the odds rates for gioma and acoustic neuroma were quite high.119

The second long term epidemiological study was the European multinational World

Health Organization Interphone study conducted between 2004 and 2008.120 The goal of the

Interphone study was to determine the risks associated between long term cell phone use and the

development of malignant brain tumors occurring in thirteen European countries.121 The

Interphone study used an interview based system to assess the risks of the same three types of

tumors measured in the Hardell studies.122

Despite low participation rates in this massive epidemiological study, the overall trends

showed lower odds ratios compared to the Hardell studies for both ipsalateral and contralateral

groups, which were all between 2.0 and 1.0.123 The highest odds ratios in the Interphone study

114 Id. at 114, 115, 117. The results for two out of the three types of brain tumors were significantly higher than a 2.0 correlation. 115 See Id. 116 See Id. at 114.117 Id. at 115.118 Id. at 117.119 See Id. 114, 115, 117.120 Khurana, supra note 36 at 208.121 Id. at 209.122 Id. at 208. The Interphone study measure the occurrence rates of glioma, acoustic neuroma, and meningioma. 123See Id.

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existed in the acoustic neuroma groups for both ipsalateral and contralateral.124 The lowest odds

ratios were in meningioma groups.125 Although the odds ratios were lower in the Interphone

study, the groups for all three of the different types of brain tumors show continuity in the

measurements compared to the Hardell studies.126

Due to the limited data and studies, epidemiological experts studying the long term

effects of cell phone radiation have started a meta-analysis127 trend towards recalculating the

odds rates of the limited long term epidemiological record to further extrapolate the data from

the previous studies.128 Dr. Hardell has been particularly active in extrapolating the data from his

previous 2006 studies and the Interphone studies.129 Two recent articles have been published in

medical journals asserting a causal link exists between long term cell phone use and brain

tumors.130 In January 2009, Dr. Hardell and Dr. Vini G. Khurana Ph.D. published an article titled

“Cell phones and brain tumors: a review including the long term epidemiologic data” in the

journal Surgical Neurology.131 The article concluded that the epidemiological data represents a

need for reassessment of radiation by governments, and neurosurgeon will begin to see an

increase in the numbers of brain tumors in their patients in the near future.132 Additionally, Dr.

Hardell published “Epidemiological evidence for an association between use of wireless phones

124 Id. 125 Id. 126 Compare, Id., with Hardell, supra note at 114, 115, 117.127Merriam Webster, Meta-analysis, http://www.websters-online-dictionary.org/Me/Meta-Analysis.html (last visited Apr. 19, 2010). Meta-analysis is a statistical procedure to combine a number of existing studies. Through such a procedure, effect which are hard or impossible to discern in the original studies because of a too small sample size can be made visible, as the meta-analysis is equivalent to a single study with the combined size of all original studies. A weakness of the method is that problems with any of the studies will affect the result of the meta-analysis, so a good meta-analysis of bad studies will still result in bad data. 128 See generally, Khurana, supra note 36 at 207.129 See generally Hardell, supra note 97 at 113; Khurana, supra note 36 at 205. Dr. Hardell was the author and co-author of two recent meta-analysis studies. 130 See generally Hardell, supra note 97 at 113; Khuarna supra note 36 at 205.131 See generally Khurana supra note 36 at 205.132 Id. at 213.

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and tumor diseases” in the journal Pathophysiology in January 2009.133 Dr. Hardell’s concluded

that due to a consistent pattern of increased risk for acoustic neuroma and glioma for groups of

consumers using cell phones for a period longer than ten years, cell phone regulations are not

safe for long term exposure and needs to be revised.134

III. Daubert and its Effect on Causation Evidence in Cell Phone Litigation

This portion of the paper discusses the development of the current standards of

admissible expert evidence in the American civil judicial system and its effects on causation

evidence in cell phone litigation. Part A addresses the development of the Daubert standard of

admissibility. Part B discusses the effect that Daubert has had on causation evidence in cell

phone litigation. Part B also identifies three common evidentiary trends that have developed in

cell phone litigation.

A. Daubert and Standards of Admissibility

Beginning in 1923, the case of Frye v. United States set the dominant standard for the

admissibility of expert testimony.135 In Frye, the trial court convicted the defendant of murder in

the second degree.136 During trial, the judge excluded the results of a systolic deception test,137 an

early simple form of the polygraph, offered by Frye’s expert witness.138 Frye’s attorney argued 133 See Hardell, supra note 97 at 113.134 Id. at 121.135See generally Frye v. United States, 293 F. 1013, 1013 (D.C. Cir. 1923).136 Id.137 Id. at 1014. The systolic pressure test offered by Frye’s expert witness attempted to link an increase in the participant’s heart rate to the conscious ability to lie. The expert claimed that when the subject consciously lied the participants blood pressure would noticeably increase as compared to when the participant told the truth. 138 Id. at 1013.

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that testimony of expert opinions should be admissible if the subject of the opinion was not of

common knowledge and would assist the jury in making an informed decision.139 On appeal, the

United States Court of Appeals for the District of Columbia ruled that Frye’s expert testimony

concerning the results of a deception test were inadmissible because the methods were not well

recognized scientific principle.140 The court in Frye found that in order to be admissible, the basis

of an expert’s testimony must be “sufficiently established to have gained general acceptance in

the particular field in which it belongs.”141

The “general acceptance test” from Frye was widely used from 1923 until the landmark

case of Daubert v. Merrell Dow Pharmaceuticals, Inc. in 1993.142 In Daubert, two minor

children brought suit against Merrell Dow Pharmaceuticals alleging that its drug Bendectin, an

anti nausea medication, caused birth defects after their mothers ingested the medication during

pregnancy.143 At the district court level, Merrell Dow moved for summary judgment maintaining

that Bendectin did not cause birth defects and the plaintiffs would not be able to produce any

evidence to prove causation.144 In support of its motion for summary judgment, Merrell Dow

offered the expert testimony of Dr. Steven H. Lamm, a physician and epidemiologist.145 Dr.

Lamm’s expert testimony asserted that, after an extensive study of published reviews and over

130,000 case reviews, none of the studies had found Bendectin capable of causing malformations

in fetuses.146 The plaintiffs did not attempt to disprove Dr. Lamm’s expert testimony.147 Instead,

139 Id.140 Id.141 Id.142 See generally, Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993); Frye v. United States, 293 F. 1013 (D.C. 1923).143 Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 583 (1993).144 Id. at 582.145 Id.146 Id.147 Id.

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the plaintiffs offered causation evidence based upon animal studies that found a link between

Bendectin and fetal malformations, studies that compared the chemical composition of Bendectin

and other drugs known to cause fetal malformations, and recalculations of previous

epidemiological studies.148

The district court concluded that the petitioner’s expert testimony did not meet the

“generally accepted” standard as set forth in Frye.149 The district court stated that the animal cell

studies, live animal studies, and chemical structure analyses “could not raise by themselves a

reasonably disputable jury issue regarding causation.”150 The district court held that “[plaintiffs’]

epidemiological analyses, based as they were on recalculations of data previously published

studies that had found no causal link between the drug and birth defects, are ruled to be

inadmissible because they had not been published or subjected to peer review.”151 The district

court placed significant weight on the fact that the plaintiffs’ expert evidence was not a

“generally accepted” technique and not subjected to peer review.152 Having excluded the

plaintiffs’ causation expert, the district court granted Merrell Dow’s summary judgment

motion.153

The plaintiffs appealed to the United States Court of Appeals for the Ninth Circuit.154 On

appeal, the Ninth Circuit applied Frye’s “general acceptance test.”155 The Ninth Circuit found

that the plaintiffs’ animal and chemical studies were insufficient to establish a causal link

148 Id. at 583.149 Id. at 584. 150 Id. 151 Id. 152 Id.153 Id. at 583.154 Daubert v. Merrell Dow Pharm., Inc., 951 F.2d 1128, 1128 (9th Cir. 1991), vacated, Daubert v. Merrell Dow Pharm., 509 U.S. 579, 597-98 (1993).155 Id. at 1129.

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between birth defects and Bendectin.156 The Ninth Circuit relied on opinions from the First,

Third, and Fifth Circuit Courts of Appeal that required epidemiological evidence in Bendectin

cases to establish the causal connection. 157 Further, the Ninth Circuit found that the reanalyzed

epidemiological evidence inadmissible because the plaintiffs’ epidemiological evidence had

undergone serious criticism by the scientific community and Merrell Dow presented massive

weight in opposition to the plaintiffs’ epidemiological record.158 Further, the Ninth Circuit

maintained that the recalculation of epidemiological evidence, as presented by the plaintiffs, was

only accepted and reliable when it has undergone verification by others in the field.159 Thus, the

Ninth Circuit found the plaintiffs’ causation evidence inadmissible and affirming the district

court’s ruling in favor of Merrell Dow.160

Following the Ninth Circuit’s ruling, the United States Supreme Court granted certiorari

to clarify the proper standards for the admission of expert testimony.161 The Court held that

Frye’s “general acceptance test” was not the proper standard for the admissibility of expert

opinion testimony.162 First, the Supreme Court reasoned that Federal Rule of Evidence 702

invalidated Frye’s “general acceptance” requirement.163 The Court stated that the drafting history

does not mention Frye’s “general acceptance test”, and it would conflict with the liberal and

flexible opinion testimony standards of the Federal Rules of Evidence.164 Thus, the Court rejected

the Frye test.165

156 Id. at 1130.157 Id.158 Id. at 1130. 159 Id. at 1131.160 Id.161 Daubert v. Merrell Dow Pharm., 509 U.S. 579, 585 (1993).162 Id. at 598. 163 Id. at 588.164 Id. (quoting, Beech Aircraft Corp. v. Rainey, 488 U.S. 153, 169 (1988) (citing FED. R. EVID. 701-705))). 165 Id. at 589.

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Second, the Court clarified that, although the Federal Rules of Evidence may have

superseded Frye, Rule 702 does suggest regulations and standards to be applied to the subject

matter and concepts which experts may testify.166 The Court continued that “[i]f scientific,

technical, or other specialized knowledge will assist the trier of fact to understand the evidence

or to determine a fact in issue an expert “may testify thereto.”167 In sum, the Court stipulated that

requiring the “expert’s testimony pertain to ‘scientific knowledge’ establishes a standard of

evidentiary reliability,”168 and further requiring that the evidence assist the trier of fact to

understand the evidence or to determine a fact at issue ensures a standard of relevance.169 The

Daubert Court established that the trial judge is the primary gate keeper, which is to conduct the

two prong test for the admissibility of expert witness evidence.170 As the gatekeeper of

admissible evidence, the trial judge must first determine whether the expert’s testimony is related

to scientific knowledge.171 Then, the trial judge must determine whether the expert’s testimony

will aid the jury in determining a relevant issue of fact.172 This entails a preliminary assessment

of whether the methodology is valid and applicable to the facts and issues before the court.173

Therefore, the Court established that the preliminary inquiry demands that the trial judge find

that the methods and theories are relevant and reliable.174

166 Id.167 Id.168 Id. at 590.169 Id. at 591.170 Id.171 Id. at 592.172 Id.173 Id. 174 Id.

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Finally, the Court set forth a list of considerations that are relevant for the trial judge to

contemplate during his or her test for admissibility.175 The non-exhaustive and non-dispositive

list includes:

(1) whether the theory or technique can be or has been tested; (2) whether it has been subjected to peer review and publication; (3) whether a technique has a high known or potential rate of error and whether there are standards controlling its operation; and (4) whether the theory or technique enjoys general acceptance with a relevant scientific community.176

Applying the new standard on remand, the Ninth Circuit Court of Appeals found that the

Daubert factors noted above were “illustrative rather than exhaustive.”177

Under the first prong of the new test, the Ninth Circuit interpreted the Supreme Court’s

decision to mean that it was the trial judge’s duty to determine whether the expert’s testimony

amounted to “scientific knowledge,” constituted “good science,” and was “derived by the

scientific method.”178 The court explained that the trial judge was required to ascertain the basis

of the expert’s testimony, which demands the expert to show the opinion is valid or grounded in

sound science.179 The expert must present objective and independent validation of his or her

methods to show that the opinion is based in sound science.180 The Ninth Circuit mentioned, in

conjunction with the factors included in the Supreme Court’s opinion, two additional

considerations of objectivity and validity.181 The court stated that studies conducted 175 Id.176 Newman v. Motorola, Inc., 218 F. Supp.2d 769, 773 (D. Md. 2002) (quoting, Daubert v. Merrell Dow, Inc., 509 U.S. 592-594 (1993)).177See Daubert v. Merrell Dow Pharm., Inc., 43 F.3d 1311, 1317 (9th Cir. 1995)(on remand). The Ninth Circuit began with a procedural matter by stating that it was proper for the appellate court, rather than the trial court, to adjudicate Daubert on remand, because the appellate court was familiar with the evidentiary issues and they wanted to offer guidance on the application of the new Daubert standard. Also, the Ninth Circuit recognized that trial judges are largely untrained in science and trial judges are not match for experts that offer testimony in their courts. 178Id. at 1316.179Id. 180Id.181Id. at 1317.

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independently of litigation have higher objectivity and reliability. Also, peer review and

publication assist in identifying substantive flaws and testing the soundness of methodology.182

The Ninth Circuit ruled the plaintiffs’ evidence inadmissible under the first prong of the

new Daubert standard because the plaintiffs failed to support their expert’s testimony with

objective evidence.183 The Ninth Circuit stated that the plaintiffs failed to show that the research

supporting their expert’s testimony was conducted independent of litigation or that it was peer

reviewed and published, which both would have tended to show objectivity and reliability of the

research and the experts’ conclusions.184 Further, the court found that the plaintiffs’ experts

offered no objective evidence supporting their methods, such as treatises or scientific journals.185

Thus, the court rejected the plaintiffs’ experts’ testimony because the experts’ testimony

consisted of unsupported conclusions.186

Under the second prong, the Ninth Circuit applied the Supreme Court’s relevancy or “fit”

test in finding the plaintiffs’ expert witness testimony inadmissible.187 The Ninth Circuit did not

expand the Supreme Court’s second prong when it applied it to Daubert on remand.188 The court

found that the type of evidence presented by the plaintiffs’ experts was not of the nature that

would assist the trier of fact in determining a fact at issue.189 The Ninth Circuit stated that the

plaintiffs’ epidemiological record was not statistically significant and that the comparative

chemical studies were speculative.190 Also, the court rejected the plaintiffs’ animal studies and

182Id. at 1318.183Id. at 1319.184Id.185Id.186Id.187Id. at 1321.188Id. at 1320.189Id. 190Id.

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chemical comparison studies, finding that the evidence showed possibility and not probability.191

Further, the court scrutinized the plaintiffs’ statistical interpretation of their evidence, stating that

the plaintiffs’ causation evidence was not sufficient unless they could prove that Bendectin

doubled the risk of the birth defects.192

B. Daubert’s effect on cell phone litigation

In the application of the Daubert standard to cell phone litigation, three common trends

have developed, which have excluded all of the plaintiff’s expert causation evidence.193 First, the

current case law shows that trial judges in cell phone litigation have endorsed epidemiological

studies as the only viable causation evidence that will be admissible in court.194 Second, trial

judges routinely have dissected the statistical support for plaintiffs’ causation experts’

conclusions, finding defense expert testimony more persuasive.195 Third, if cell phone plaintiffs

can present epidemiological evidence showing a causal connection, the court likely will find it

inadmissible by resurrecting the “general acceptance” rule from Frye.196

First, courts have concluded that the only admissible causation evidence under Daubert

in cell phone litigation is reliable epidemiological evidence.197 Consequently, trial judges’ per se

requirement of epidemiological causation evidence excludes the use of other forms of

evidence.198 Other forms of evidence, such as animal studies, have been found inadmissible

under both the reliability and relevancy prongs of Daubert.199 Thus, courts have endorsed

191 Id. at 1322.192 Id. at 1321-1322.193 E.g., Reynard v. NEC Corp., 887 F.Supp. 1500, 1508 (M.D. Fla. 1995); Newman v. Motorola, Inc., 218 F.Supp.2d 769, 783 (D. Md. 2002); Motorola Inc. v. Ward, 478 S.E.2d 465, 466 (Ga. Ct. App. 1997).194 E.g., Reynard, 887 F.Supp. at 1508; Newman, 218 F.Supp.2d at 783; Ward, 478 S.E.2d at 466.195 E.g., 218 F.Supp.2d at 778-79 (D. Md. 2002).196 E.g., Id.197 E.g , 887 F.Supp. at 1508; 218 F.Supp.2d at 783; 478 S.E.2d at 466.198 E.g., 887 F.Supp. at 1508; 218 F.Supp.2d at 783; 478 S.E.2d at 466.199 E.g., 218 F.Supp.2d at 781.

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epidemiological evidence as the only sufficient form of causation evidence in cell phone

litigation.200

Reynard and Ward illustrate that a cell phone plaintiffs’ case will fail if it is not supported

by epidemiological evidence.201 In Reynard v. NEC Corp., the court granted the defendants’

motion for summary judgment after finding the plaintiff’s causation experts’ testimony

inadmissible.202 The plaintiff’s expert relied on a congressional subcommittee report,203 animal

studies,204 and human brain studies to support his conclusion.205 During the Daubert analysis, the

Reynard court excluded the plaintiff’s expert opinion under Daubert’s reliability prong.206 The

Reynard court held that the expert’s opinion was unreliable because it was not supported by peer

reviewed independent research.207 In Reynard, the court stated that the plaintiff did not satisfy her

causation burden because the plaintiff’s expert failed to support his conclusions with specific

facts and data.208 Similarly in Motorola v. Ward, the plaintiff’s causation expert’s conclusion was

found inadmissible because it failed to set out a statistical link between the cell phone radiation

exposure and the plaintiff’s cancer.209 Reynard and Ward illustrate that reliable epidemiological

causation evidence is vital to satisfying the plaintiff’s causation burden.210

200 E.g , 887 F.Supp. at 1508; 218 F.Supp.2d at 783; 478 S.E.2d at 466.201 E.g., 887 F.Supp. at 1508; 478 S.E.2d at 466.202 887 F.Supp. at 1508.203 Id. The congressional subcommittee report stated that little research had been conducted on the long term effects of cell phone radiation and more research should be conducted. 204 Id. at 1505. The plaintiff’s expert did not provide any specific animal study results to the court. The plaintiff’s expert stated that strong inferential data existed that tended to show the causal link between cell phone radiation and cancer cell development. 205 Id. at 1508.206 Id.207 Id.208 Id. at 1508.209 Motorola, Inc. v. Ward, 478 S.E.2d 465, 466 (Ga. Ct. App. 1997).210 E.g., Reynard v. Motorola, Inc., 887 F.Supp. 1500, 1505 (M.D. Fla. 1995); Motorola, Inc. v. Ward, 478 S.E.2d 465, 466 (Ga. Ct. App. 1997).

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Newman v. Motorola, Inc. demonstrates that the epidemiological evidence supporting a

plaintiff’s causation theory must be reliable under Daubert and animal studies are inadmissible

in cell phone litigation.211 In contrast to Reynard and Ward, the plaintiffs in Newman supported

their causation theory with specific epidemiological and animal studies.212 In Newman, the court

granted the defendant’s motion to exclude the plaintiffs’ causation experts because the court

found the plaintiffs’ epidemiological evidence unreliable. Although the plaintiffs’

epidemiological evidence was peer reviewed and published, the Newman court found the

plaintiff’s epidemiological evidence inadmissible because the expert’s methods had not been

replicated.213 Further, the court excluded the plaintiffs’ animal studies as irrelevant and unreliable

under Daubert.214 The court in Newman questioned the relevance or “fitness” of the animal

studies by distinguishing the level of radiation that was used in the studies as compared to the

level of radiation used in the plaintiff’s cell phone.215 The court also found the animal studies

unreliable because the methodology had not been replicated216 and the statistical results of the

studies were inconsistent.217 Thus, Newman shows that reliable epidemiological evidence is

required to establish causation, and supports the argument that animal studies are generally

inadmissible in cell phone litigation.218

Second, trial judges appear more willing to dissect the plaintiff’s epidemiological record

and be persuaded by defense expert rebuttal witnesses when examining reliability issues under

211 See Newman v. Motorola, Inc., 218 F.Supp.2d 769, 783 (D. Md. 2002)212 Compare, Id. with Reynard, 887 F.Supp. at 1505; Ward, 478 S.E.2d at 466. The plaintiffs in Reynard and Ward failed to support their causation theories with actual data. Whereas, the plaintiffs in Newman presented animal studies and epidemiological data to support their causation theories.213 Id. at 777-79.214 Newman, 218 F.Supp.2d at 783.215 Id. at 782.216 Id. at 781.217 Id. at 782.218 See Id. at 783.

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Daubert.219 In Newman v. Motorola, the court rejected early epidemiological research conducted

by Dr. Hardell.220 The plaintiffs submitted the results from two of Dr. Hardell’s epidemiological

studies to support their conclusion that cell phone radiation caused the development and

acceleration of the plaintiff’s brain tumor.221 In response to the plaintiffs’ epidemiologic

evidence, the defendants offered testimony from three epidemiological experts.222 The

defendants’ experts testified that Dr. Hardell’s studies and analysis were subject to numerous

errors and directly opposed Dr. Hardell’s conclusions.223 The court found the defendants’

experts’ criticisms of Dr. Hardell’s methodology and statistical analysis more persuasive than Dr.

Hardell’s results and conclusions.224 First, the court found that there was no significant statistical

correlation between cell phone radiation and cancer cell development.225 Second, the court

mentioned that Dr. Hardell’s study was vulnerable to recall bias.226 Third, the court noted that Dr.

Hardell’s studies lacked any examination of a dose-response relationship, which Dr. Hardell

agreed was paramount.227 Fourth, the court attacked Dr. Hardell’s theory of ispilaterality.228 Fifth,

the court agreed with a defense expert that Dr. Hardell had overly emphasized certain

219 See Id. at 775-80.220 Id. at 783.221 Id. at 776-77.222 Id. at 778-80.223 Id. The defense experts testified that Dr. Hardell’s work was subject to numerous flaws, including: recall bias, lack of dose response relationship, his ispalateral theory was irrelevant, and certain subgroups were manipulated to serve a post hoc hypothesis. 224 Id. 225 Id. at 778.226 Id. Recall bias is when the results of the test rely on the participants’ memory and their ability to recall a particular event. In Dr. Hardell’s second study, the questionnaires asked the participants to recall which side of their head they normally would use their cell phone. The Newman court took issue with the fact that participants in Dr. Hardell’s studies may not have responded accurately due to prolonged periods of time between reporting and cell phone use. Thus, the court discredited Dr. Hardell’s study based on the methodology. 227 Id. Dose response relationship interprets the amount of exposure as compared to the amount of reaction, so if a patient receives more of an agent or a higher exposure, under a positive dose response relationship, the reaction or response should be higher.228 Id. The court found significant problems with relying on an ipsilateral association as evidence of causation when there is no underlying evidence of an association between cell phone use and development of malignant brain tumors.

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subgroups,229 particularly the effected brain tumor group, within the study before asserting a

hypothesis to test.230 Finally, the court stated that Dr. Hardell’s studies had not been replicated

and were subject to a substantial amount of criticism and opposition.231 The Newman court

granted the defendants’ motion to exclude Dr. Hardell’s studies because there were numerous

flaws in his methodology and statistical analysis.232

Third, even if plaintiffs are able to find peer reviewed and published epidemiological

causation evidence, the trial court will resurrect Frye’s “general acceptance” test to find the

epidemiological evidence inadmissible.233 In Newman v. Motorola, Dr. Hardell’s epidemiological

evidence was peer reviewed and published in four medical journals.234 The court acknowledged

that peer review is a quality control measure that assists in identifying and curing errors in

methodology and calculation.235 Nevertheless, the court disregarded Dr. Hardell’s peer reviewed

publications because the methods used had not been replicated and were not generally accepted

within the scientific community.236 Although Dr. Hardell’s work had not been replicated, Dr.

Hardell’s research was groundbreaking at the time of litigation and, even today, additional long

term epidemiological causation evidence does not exist in cell phone litigation.237 Thus, the trial

judge found Dr. Hardell’s work inadmissible by resurrecting Frye’s “general acceptance” test,238

which is contrary to the Supreme Court’s holding in Daubert.239

229 Id. at 779. A defense expert stated that it is not good methodology to highlight certain raised subgroups without first formulating a hypothesis. 230 Id.231 Id.232 Id at 783.233 See Id. at 783. 234 Id. Dr. Hardell articles were published in the International Journal of Oncology in 1999, the European Journal of Cancer Prevention in 2001 and 2002, and the International Journal of Radiation Biology in 2001. 235 Id. at 778236 Id. at 783.237 Wolf, supra note 53 at 281.238 E.g., Newman v. Motorola, Inc, 218 F. Supp.2d 769, 783 (D. Md. 2002). 239 Daubert v. Merrell Dow, Inc., 509 U.S. 579, 597 (1993).

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Using Daubert, the courts have developed a pro-defendant court that has effectively

screened out all causation experts and evidence brought forth by plaintiffs alleging that cell

phone radiation caused or accelerated the development of their brain tumors.240 Scholarly

commentary on the shift to a pro-defendant court in cell phone litigation asserts that it could be

the judiciary attempting to control litigation in this area.241 One author believes that the

development of the pro-defendant shift represents the fear of opening the floodgates of litigation

and the courts inability to adequately address causation issues in the absence of sufficient long

term research.242 As of today, the pro-defendant court has utilized Daubert to effectively stall cell

phone litigation.243

IV. Looking Back to Move Forward in Cell phone Litigation

This portion of the paper discusses the possible benefits of additional long term

epidemiological evidence and judicial reform in cell phone litigation. Part A addresses the

universal call and possible benefits of future long term epidemiological research in cell phone

litigation. Part B examines and compares the similarities between the Agent Orange, Bendectin,

cell phone litigations. Part B also accesses scholarly criticism of the Agent Orange and

Bendectin litigations and discusses their applicability to cell phone litigation. Part C discusses

the benefits of the adoption of a preponderance of the available evidence standard in cell phone

litigation.240 E.g., Reynard v. NEC Corp., 887 F.Supp. 1500, 1509 (M.D. Fla. 1995); Newman v. Motorola, Inc., 218 F.Supp.2d 769, 783 (D. Md. 2002); Motorola Inc. v. Ward, 478 S.E.2d 465, 466 (Ga. Ct. App. 1997).241 Grasso supra note 10 at 30.242 Id.243 See E.g., Reynard, 887 F.Supp. at 1509; Newman, 218 F.Supp.2d at 783; Ward at 466.

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A. The Need for More Long Term Epidemiological Studies in Cell Phone Litigation

The judiciary,244 government,245 and scientific community246 all agree that more research

needs to be conducted on the long term effects of cell phone radiation.247 The Federal

Communication Commission, or FCC, in association with other private and governmental

bodies,248 is the federal agency that develops and adopts radiofrequency radiation regulations in

the United States.249 The FCC is also responsible for monitoring developments and identifying

research that is necessary in the area of cell phone radiation.250

Currently, the Federal Communication Commission website addresses the issue of cell

phone radiation.251 The website asserts that the evidence of cell phone radiation producing

harmful biological effects is unproven and further experimental research has been unable to

reproduce the effects.252 The website also mentions that further research is needed to determine

the generality of such effects and their possible relevance.253 Importantly, the FCC website

admits that most of the non-military research on biological effects of the cell phone radiation in

the United States is being funded by the cell phone industry.254

244 See generally 887 F.Supp.1500 at 1509; 218 F.Supp.2d at 783; 478 S.E.2d at 466.245 See generally FCC, supra note 9. The FCC and FDA state that there is no causal link between cell phone radiation and brain cancer. However, both bodies are still state that they are conducting research.246 See generally Khurana, supra note 36 at 213; Hardell, supra note 97 at 121. Dr. Khurana and Hardell both concede that participation number are low and larger populations could benefit the strength and reliability of the statistical analysis in the long term effects of cell phone radiation. 247 See generally 887 F.Supp. 1500 at 1509; 218 F.Supp.2d at 783; 478 S.E.2d at 466. See generally Khurana, supra note 36 at 213; Hardell, supra note 97 at 121. See generally FCC, supra note 9 at Radio Frequency Safety.248FCC, supra note 9. The FCC works in association with the Environmental Protection Agency, the United States Food and Drug Administration, the National Institute for Occupational Safety and Health to develop and research cell phone radiation regulations. 249 FCC, supra note 9.250 Id.251 Id.252 Id.253 Id.254 Id.

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Similarly, the case law in this area of litigation recognizes the call for additional long

term epidemiological evidence.255 Reynard, Ward, and Newman demonstrate a call for more

research.256 In Reynard v. NEC Corp., the plaintiff’s causation expert attempted to support his

causation theory on a congressional subcommittee report that expressed concern for risks

associated with cell phone radiation under the current regulatory scheme.257 Although the

Reynard court stated that the subcommittee report did not establish an issue of material fact, the

report and the court’s opinion is demonstrative of the need for further research on the long term

effects of cell phone radiation.258 In Newman v. Motorola, Inc., plaintiff and defense experts

both agreed that additional research is needed on the long term effects of cell phone radiation. A

defense expert testified that the risk of cancer is not associated with the use of cell phones, but

more research need to be conducted for longer latency periods.259 Additionally, the plaintiff’s

expert that conducted the animal studies admitted that there was insufficient research data to

conclude that there is a link existed between cell phone radiation and cancer.260 Lastly, the court

discounted the Dr. Hardell’s studies because the methods had not been replicated, which implies

a call for subsequent research.261

Finally, legal scholars also agree additional epidemiological research in this area would

be most beneficial to the cell phone industry, Americans in general, and to the judiciary.262

255 See Reynard v. NEC Corp., 887 F.Supp. 1500, 1505 (M.D. Fla. 1995); Newman v. Motorola, Inc., 218 F.Supp.2d 769, (D. Md. 2002); Motorola Inc. v. Ward, 478 S.E.2d 465, 466 (Ga. Ct. App. 1997). In Reynard, the plaintiff’s causation expert offered a congressional subcommittee report that was a call for research. The Reynard court recognized the lack of evidence and ruled in favor of the defendants. In Newman, the court scrutinized the Dr. Hardell’s first and second study because it had not been replicated. In Ward, the plaintiff failed to offer any epidemiological evidence. 256 Reynard, 887 F.Supp. at 1505.257 Id.258 Id.259 Newman, 218 F.Supp.2d at 774 n. 5.260 Id. at 782.261 Id.262 Wolf, supra note 53 at 281; Capriotti, supra note 30 at 507; Grasso supra note 10 at 39. See Walsh supra note 1 at 47.

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Between 2002 and 2008, three scholarly articles all identified the call for research by the

judiciary and claim that more research is the best solution.263 One article noted that the issue

becomes more pressing as time passes because more Americans are using cell phones and for

longer periods of time.264 Another article emphasized that if there is going to be a future in cell

phone litigation more research is necessary.265 This author asserts that enough inconsistent

evidence exists to warrant further research and until then Americans should take precautions.266

Thus, legal scholars are all in agreement that more research is the clearest answer to the current

issues arising in cell phone litigation.267

However, the call for additional epidemiological research needs to be qualified. The

current message conveyed by the FCC, which is also supported by the cell phone industry, is that

the current research is inconclusive and does not establish a link between cell phone radiation

and the development of malignant tumors under the current regulations.268 The current FCC

reports have been conducted in conjunction with the cell phone industry, which creates a

presumption of bias.269 These concerns lead to one inevitable conclusion. The next wave of

epidemiological tests conducted needs to be undertaken by a disinterested and independent party

that does not have any temptation or motivation to produce any particular results.

B. Looking to the Agent Orange and Bendectin Litigations for Judicial Reform

The largest issue facing cell phone plaintiffs, with no fault to their own, is the limited

amount of long term epidemiological evidence.270 Given the limited available information and 263 See generally Wolf, supra note 53 at 281; Capriotti, supra note 30 at 507; Grasso supra note 10 at 39.264 Wolf, supra note 53 at 287.265 Capriotti, supra note 30 at 496.266 Id.267 See Wolf, supra note 53 at 281; Capriotti, supra note 30 at 507; Grasso supra note 10 at 39.268 FCC supra note 37 at Radio Frequency Safety.269 Capriotti, supra note 30 at 507. 270 See Wolf, supra note 53 at 281; Capriotti, supra note 30 at 507; Grasso supra note 10 at 39.

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the public, scientific, and judicial outcry for further investigation, courts should reassess their

application of expert admissibility standards. The current pro-defendant court has effectively

stalled cell phone litigation by utilizing Daubert to exclude all causation evidence supporting a

link between cell phone radiation and cancer.271 Similar trends developed in the Agent Orange

and Bendectin litigations where little epidemiological evidence was available.272

1. Comparing the Agent Orange, Bendectin, and Cell Phone Litigations

Plaintiffs in cell phone litigation are facing a similar situation that plaintiffs did in Agent

Orange .273 In the Agent Orange litigation, Judge Weinstein dismissed the plaintiffs’ causation

evidence, which included epidemiological, animal, and industrial studies.274 Judge Weinstein

declared that epidemiological studies were “the only useful studies having any bearing on

causation.”275 Judge Weinstein’s endorsement of epidemiological studies consequently rendered

the plaintiffs’ animal and industry studies inadmissible.276 Judge Weinstein asserted that the

animal studies were not helpful to the plaintiffs because the studies involved different biological

species and the concentration levels of exposure were much higher in the studies.277 Due to the

limited available epidemiological evidence supporting the plaintiffs’ causation theories, Judge

Weinstein’s evidentiary ruling dealt a lethal blow to the plaintiffs’ cases in the Agent Orange

271 E.g., Reynard v. NEC Corp., 887 F.Supp. 1500, 1502 (M.D. Fla. 1995); Newman v. Motorola, Inc., 218 F.Supp.2d 769, 772 (D. Md. 2002); Motorola Inc. v. Ward, 478 S.E.2d 465, 465 (Ga. Ct. App. 1997).272 See Lynch v. Merrell-National Laboratories, Division of Richardson-Merrell, Inc., 830 F.2d 1190 (1st Cir. 1987); Richardson v. Richardson-Merrell, Inc., 649 F.Supp. 799 (D.C. Cir. 1986); In re “Agent Orange” Product Liability Litigation, 611 F.Supp. 1223, 1231 (1985). Professor Michael Green identifies that the epidemiological record did not fully develop until after the Agent Orange and Bendectin Litigations had concluded. Therefore, the plaintiffs faced substantial, and in many cases fatal, barriers in proving causation. 273 Compare Reynard, 887 F.Supp. at 1509; Newman, 218 F.Supp.2d at 783; Ward, 478 S.E.2d at 466, with Lynch, 830 F.2d at 1197; Richardson, 649 F.Supp. at 803; In re “Agent Orange” Product Liability Litigation, 611 F.Supp. at 1231. Plaintiffs in the Agent Orange, Bendectin, and cell phone litigation have not been able to establish causation either at summary judgment or in pretrial motions.274 611 F.Supp. at 1231.275 Id. 276 Id. Green, supra note 54 at 660.277 Id. at 1241.

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litigation.278 Judge Weinstein granted the defendant’s motion for summary judgment finding the

defendants’ substantially larger epidemiological record admissible.279 Following Agent Orange,

Judge Weinstein’s influence eventually spread to the Bendectin litigation.280

Similarly, the Benedectin litigation presented substantial causation and evidentiary

barriers to plaintiffs.281 In Oxendine v. Merrell Dow Pharmaceuticals, Inc., the trial court granted

the defendants’ motion for judgment notwithstanding the verdict and a new trial.282 On appeal,

the District of Columbia Court of Appeals reversed both of the trial court’s motions and

remanded the case to the trial court for reinstatement of the jury verdict in favor of the

plaintiffs.283 The Oxendine court found that the plaintiffs’ causation expert testimony was

admissible.284 The plaintiff’s expert’s conclusion was supported by structure activity

information,285 in vivo studies,286 in vitro studies,287 and epidemiological studies.288 The court in

Oxendine found that the plaintiff’s epidemiological evidence was admissible because his

methodology was generally accepted in its area and the defendants’ epidemiological evidence

was subject to numerous errors.289

278 Id. at 1265.279 Id. 280 Green, supra note 54 at 662. Professor Green claims that Judge Jackson’s evidentiary ruling in the Bendectin litigation was directly influenced by Judge Weinstein’s Agent Orange opinion. 281 E.g.,Lynch v. Merrell-National Laboratories, Division of Richardson-Merrell, Inc., 830 F.2d 1190, 1197 (1st Cir. 1987); Richardson v. Richardson-Merrell, Inc., 649 F.Supp. 799, 803 (D.C. Cir. 1986).282 Oxendine v. Merrell Dow Pharmaceuticals, Inc. 506 A.2d 1100, 1103 (D.C. 1986). 283 Id. at 1115.284 Id. at 1108.285 Id. at 1104. Structure activity information looks at the chemical structure of drugs in comparison to other drugs with similar structures to determine what effect they will have in the body. 286 Id. at 1105. In vivo studies involve exposing animal fetuses to agents to measure the effects. The plaintiff’s expert in Oxendine relied on in vivo rabbit studies.287 Id. at 1107. In vitro studies are studies that expose human cells to agents. In vitro studies are frequently called test tube studies. 288 Id. at 1104.289 Id. at 1111-13. The Oxendine court reversed the trial court’s finding by viewing the evidence as a whole and reinstated the jury verdict.

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Although Oxendine ruled in favor of the plaintiff, subsequent case law in the Bendectin

litigation rejects following Oxendine demonstrating Judge Weinstein’s influence and a shift to a

pro-defendant court.290 In Richardson v. Richardson-Merrell, Inc., District Judge Jackson granted

the defendant’s motion for judgment n.o.v. or a new trial following a jury verdict in the

plaintiff’s favor.291 Judge Jackson relied heavily on epidemiological evidence.292 Judge Jackson

found that the plaintiff’s epidemiological studies could not establish causation in isolation or in

the aggregate.293 Further, Judge Jackson stated that the defendants’ epidemiological evidence,

which was supported by numerous governmental studies, demonstrated that Bendectin had been

reduced to a mere superstition.294 Following Judge Jackson’s opinion in Richardson, the United

States Court of Appeals for the First Circuit, in Lynch v. Merrell-National Laboratories, affirmed

the district court’s finding that the plaintiff’s in vivo and in vitro studies were insufficient to

establish causation during summary judgment.295 The First Circuit established that the in vivo

and in vitro studies were insufficient to establish causation without conclusive epidemiological

evidence.296 Thus, the courts adopted Judge Weinstein’s epidemiological causation evidence

requirement in Bendectin litigation.297

The trends that developed in the Agent Orange and Bendectin litigations appear to be

developing in the current cell phone litigation.298 In Reynard, the United States District Court for

290 See Lynch v. Merrell-National Laboratories, Division of Richardson-Merrell, Inc., 830 F.2d 1190, 1194 (1st Cir. 1987); Richardson v. Richardson-Merrell, Inc., 649 F.Supp. 799, 802-03 (D.C. Cir. 1986).291 Richardson, 649 F.Supp. at 804.292 Id. at 801-03.293 Id. at 802.294 Id. at 803.295 Lynch, 830 F.2d at 1194. 296 Id.297 See Lynch v. Merrell-National Laboratories, Division of Richardson-Merrell, Inc., 830 F.2d 1190, 1194 (1st Cir. 1987); Richardson v. Richardson-Merrell, Inc., 649 F.Supp. 799 (D.C. Cir. 1986).298 Compare Reynard v. NEC Corp., 887 F.Supp. 1500, 1507 (M.D. Fla. 1995); Newman v. Motorola, Inc., 218 F.Supp.2d 769, 774-82 (D. Md. 2002); Motorola Inc. v. Ward, 478 S.E.2d 465, 466 (Ga. Ct. App. 1997), with Lynch, 830 F.2d at 1194; Richardson, 649 F.Supp. at 799; In re “Agent Orange” Product Liability Litigation, 611 F.Supp. 1223, 1231 (1985).

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the Middle District of Florida held that “strong inferential data” based on a congressional

subcommittee report, animal, and human brain studies were insufficient to establish causation in

the absence of reliable epidemiological evidence.299 Similarly in Motorola v. Ward, the plaintiff

failed to provide any statistical correlation between cell phone radiation and cancer during

summary judgment.300 Finally in Newman v. Motorola, the court excluded all of the plaintiff’s

animal studies because the causation evidence was not supported by reliable epidemiological

evidence.301 Just as Judge Weinstein raised the skepticism to plaintiff’s causation experts in the

Agent Orange trials to exclude all causation epidemiological evidence, judges in the cell phone

litigation have adopted similar practices.302

2. Agent Orange and Bendectin May Offer Insight into the Cell Phone Litigation Stalemate

Given the limited available causation evidence, judicial reform may help curtail the

effects of the substantial evidentiary and causation barriers that plaintiffs currently face in cell

phone litigation. Scholarly commentary suggesting judicial reform in the Agent Orange and

Bendectin litigations is relevant and applicable to cell phone litigation because courts require

analogous epidemiological evidence to establish causation.303Additionally, Agent Orange and

Bendectin plaintiffs dealt with similar problems finding sufficient causation evidence, since the

epidemiological record in Agent Orange and Bendectin did not develop until after the majority of

litigation had been completed.304 Thus, cell phone, Agent Orange, and Bendectin plaintiffs were

299 Reynard, 887 F.Supp. at 1507.300 Ward, 478 S.E.2d at 466.301 Newman, 218 F.Supp.2d at 774-82. 302 Compare 887 F.Supp. at 1507; 218 F.Supp.2d at 774-82; 478 S.E.2d at 466; with 830 F.2d at 1194; 649 F.Supp. at 803; In re “Agent Orange” Product Liability Litigation, 611 F.Supp. at 1231.303 E.g., Compare 887 F.Supp. at 1507; 218 F.Supp.2d at 774-82; 478 S.E.2d at 466, with 830 F.2d at 1194; 649 F.Supp. at 803; 611 F.Supp. at 1231.304 Green supra note 54 at 677.

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all confronted with similar tasks of proving causation with inadequate epidemiological causation

evidence.305

First, courts appear to be utilizing similar evidentiary screening methods that were used

in the Agent Orange and Bendectin litigations in cell phone litigation.306 Similar to the effects

seen in cell phone litigation,307 the screening methods adopted in Agent Orange and Bendectin

effectively excluded the vast majority of the plaintiffs’ causation evidence.308 Professor Michael

Green 309 disagrees with the methods used by Judge Weinstein and the Bendectin courts and

suggests that future toxic tort cases should avoid following the Agent Orange and Bendectin

courts.310 Professor Green warns courts that they should avoid following the Agent Orange and

Bendectin litigations because they were sui generis311 and there are numerous negative

implications on future toxic tort cases.312 However, cell phone plaintiffs are still confronted the

same screening devices that were instituted by the Agent Orange and Bendectin courts.313

305 Compare 887 F.Supp. at 1507; 218 F.Supp.2d at 774-82; 478 S.E.2d at 466, with 830 F.2d at 1194; 649 F.Supp. at 799; 611 F.Supp. at 1231.306 Green, supra note at 680.307 Compare Reynard v. NEC Corp., 887 F.Supp. 1500, 1507 (M.D. Fla. 1995); Newman v. Motorola, Inc., 218 F.Supp.2d 769, 774-82 (D. Md. 2002); Motorola Inc. v. Ward, 478 S.E.2d 465, 466 (Ga. Ct. App. 1997).The plaintiffs animal and epidemiological studies were found inadmissible in Reynard and Newman.308 Lynch v. Merrell-National Laboratories, Division of Richardson-Merrell, Inc., 830 F.2d 1190, 1194 (1st Cir. 1987); Richardson v. Richardson-Merrell, Inc., 649 F.Supp. 799, 799 (D.C. Cir. 1986); In re “Agent Orange” Product Liability Litigation, 611 F.Supp. 1223, 1231 (1985).309 Green, supra note 54 at 674. 310 Id.311Id. Professor Green states that both the Agent Orange and Bendectin litigations were unique. Green argues that Judge Weinstein’s methods in his Agent Orange opinion should not be followed because he disposed of the opt out plaintiffs’ cases to uphold his previous settlement ruling as fair. Professor Green asserts that Judge Weinstein’s opt out ruling was self serving and the plaintiffs were doomed to fail before the litigation began. As to Bendectin, Professor Green notes that the methods used were inadequate because the epidemiological record did not become rich until a decade after the litigation and the Bendectin latency periods were substantially shorter than most toxic tort injuries, which made epidemiological studies more feasible. 312 Id. at 674-681. Professor Green states that numerous cases will be screened out because of insufficient causation evidence. Further, the epidemiological requirement will reduce the amount of research conducted in the area of chemical comparison and animal studies. 313E.g., Reynard v. NEC Corp., 887 F.Supp. 1500, 1508; Newman v. Motorola, Inc., 218 F.Supp.2d 769, 772 (D. Md. 2002); Motorola Inc. v. Ward, 478 S.E.2d 465, 465 (Ga. Ct. App. 1997). Plaintiffs are still facing a per se epidemiological requirement and alternative forms of evidence are inadmissible.

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The impact of Judge Weinstein’s endorsement of epidemiological evidence as being the

only valid causation evidence is still apparent in the current cell phone litigation.314 Professor

Green stated that the effect of Judge Weinstein’s epidemiologic evidence requirement could have

adverse impacts on future toxic tort plaintiffs.315 Professor Green asserted that an epidemiological

requirement makes it inherently more difficult on plaintiffs because epidemiological research has

not been conducted on the vast majority of toxic substances.316 Therefore, imposing an

epidemiological requirement will effectively screen out an abundant amount of cases.317

Reynard, Ward, and Newman all failed to establish causation because sufficient long term

epidemiological evidence on cell phone radiation did no exist.318 Thus, Reynard, Ward, and

Newman were subsequently screened out by an epidemiological requirement.319

Professor Green suggests that trial judges adopt a standard that requires plaintiffs to

prove causation by the preponderance of the available evidence.320 Professor Green explains that

this standard will allow plaintiffs to establish causation with a wider variety of causation

evidence in the absence of strong epidemiological evidence.321 The advantages to Professor

Green’s standard are its broad scope and flexibility.322 Therefore, if a toxic tort does not have a

solid epidemiological record, then the plaintiff has a limitless amount of evidence to consider for

establishing causation.323 The disadvantage to Professor Green’s standard is that it could open up

the court to plaintiffs relying on speculative and attenuated evidence, which would waste judicial

314 See Reynard, 887 F.Supp. at 1508; Newman, 218 F.Supp.2d at 783; Ward, 478 S.E.2d at 466.315 Green, supra note 54 at 681.316 Id. at 680.317 Id.318 E.g., Reynard v. NEC Corp., 887 F.Supp. 1500, 1508; Newman v. Motorola, Inc., 218 F.Supp.2d 769, 772 (D. Md. 2002); Motorola Inc. v. Ward, 478 S.E.2d 465, 465 (Ga. Ct. App. 1997).319 E.g., Reynard, 887 F.Supp. at 1508; Newman, 218 F.Supp.2d at 772; Ward, 478 S.E.2d at 466.320 Green, supra note 54 at 680.321 Id. at 680.322 Id. at 681.323 Id.

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resources.324 However, Professor Green’s rationale is that the unavailability of epidemiological

evidence in toxic tort cases is no parties’ fault and the preponderance of the available evidence

standard seems in line with the traditional notions of the American civil justice system.325

Second, courts and legal scholars have questioned trial judges’ abilities to fully

comprehend complex expert evidence.326 In Daubert v. Merrell Dow, the Supreme Court

appointed federal judges to be the primary evidentiary gate keeper in trials.327 Although the

Daubert Court stated that they were confident that trial judges were capable undertaking the gate

keeping role,328 the Court also noted that it was inevitable that trial judges will on occasion

“prevent the jury from learning of authentic insights and innovations.”329 In Daubert on remand,

the United States Court of Appeals for the Ninth Circuit commented that they had the heady task

determining what evidence amounted to “good science” when they are largely untrained in those

disciplines and are certainly no match for the expert offering the evidence.330 As a consequence,

the Supreme Court and the Ninth Circuit’s reservations in Daubert raise the issue of whether trial

judges can accurately screen complex evidence.331

Legal scholars also question the ability of trial judges to adequately address complex

evidentiary issues.332 Professor Michael Green questioned trial judges’ ability to accurately

comprehend complex statistical analysis in the Agent Orange and Bendectin litigations.333

Professor Green examined Judge Weinstein’s assessment of the plaintiffs’ epidemiological

324 Id.325 Id. at 681.326 Daubert v. Merrell Dow, Inc., 509 U.S. 579, 596 (1993), Green, supra note 54 at 681. 327 Daubert, 509 U.S. at 592.328 Id. at 593.329 Id. at 597.330 Daubert v. Merrell Dow, Inc., 43 F.3d 1311, 1316 (9th Cir. 1995)(on remand).331 E.g. 509 U.S. at 592; Id. at 1316(on remand); Green, supra note 54 at 681.332 E.g., Green, supra note 54 at 681.333 Id.

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record in the Agent Orange litigation.334 Professor Green found that the judicial scrutiny applied

by Judge Weinstein would require him to fully understand the validity of the methodology, the

errors associated with the methods, and its relation to the biological factors that were being

tested.335 Further, Professor Green asserts that Judge Weinstein would also need to be able to

translate the statistical analysis to the preponderance of the evidence standard.336 Professor Green

concluded that it is doubtful to assume that a routine trial judge would have the expertise or

familiarity with those statistical concepts to be able to make an adequate finding.337

In addition, scholarly commentary indicates that issues of judge competency are

compounded when cases are disposed during pre trial motions.338 The Agent Orange, Bendectin,

and cell phone cases were all disposed of during summary judgment or pretrial motions because

the plaintiffs were unable to establish causation.339 Professor Green remarked that toxic tort

judges’ tasks are made more difficult when they are asked to digest complex statistical analysis

before trial.340 He contends trial judges are being asked to make findings on complicated issues

without the benefit of having a full hearing to explain the issues.341 As a result, many legal

scholars suggest curtailing the trial judge’s gate keeping role and letting juries determine

complex evidentiary issues by the preponderance of the evidence standard.342

334 Id.335 Id.336 Id.337 Id. at 681. 338 Id. at 681. Wolf, supra note 53 at 281.339 See Reynard v. NEC Corp., 887 F.Supp. 1500 (M.D. Fla. 1995); Newman v. Motorola, Inc., 218 F.Supp.2d 769 (D. Md. 2002); Motorola Inc. v. Ward, 478 S.E.2d 465 (Ga. Ct. App. 1997); Lynch v. Merrell-National Laboratories, Division of Richardson-Merrell, Inc., 830 F.2d 1190 (1st Cir. 1987); Richardson v. Richardson-Merrell, Inc., 649 F.Supp. 799 (D.C. Cir. 1986); In re “Agent Orange” Product Liability Litigation, 611 F.Supp. 1223, 1231 (E.D.N.Y. 1985).340 Green, supra note 54 at 681.341 Green, supra 54 at 681.342 See Id. at 681; Wolf, supra note 53 at 280.

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Third, courts disposing cell phone litigation cases at summary judgment and pre trial

strips the jury’s role of being the ultimate finders of fact.343 The Agent Orange and Bendectin

litigations demonstrate that trial judges’ evidentiary rulings during pretrial motions and summary

judgment were ultimately dispositive to the vast majority of plaintiffs’ cases.344 Professor

Michael Green contends that the role of the jury is undermined when trial judges reject a

plaintiff’s causation evidence without the benefit of a trial.345 Due to the complex and limited

nature of evidence in certain toxic torts, Professor Green maintains that trial judges should

refrain from rejecting plaintiffs’ causation evidence at pretrial and let the case proceed to trial

where the evidence will be judged under the preponderance of the evidence standard.346 Thus,

allowing toxic tort plaintiffs to advance to trial will allow the jury to perform its role as the trier

of fact.347

Scholarly commentary in area of cell phone litigation shows support for Professor

Green’s suggestion that plaintiffs should have the opportunity to reach trial.348 One author asserts

that Daubert’s liberalization of the standards effectively transformed trial judges from

gatekeepers to arbitrators.349 This author argues that the sole discretion to exclude scientific

evidence should not be given to the trial judge.350 Rather, the ability to exclude disputed scientific

evidence should be given to the jury.351 Once given to the jury, they will measure the validity of

the evidence “based on its weight and not its admissibility.” 352 His rationale is that the lack of

343 See Green, supra note 54 at 681; Wolf, supra note 53 at 279.344 See Lynch, 830 F.2d at 1197; Richardson, 649 F.Supp. at 803; In re “Agent Orange” Product Liability Litigation, 611 F.Supp. at 1231.345 Green, supra note 54 at 674.346 Id. at 698.347 Id. at 674, 698.348 Wolf, supra note 53 at 280.349 Id. at 280.350 Id.351 Wolf, supra note 53 at 280.352 Id.

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conclusive and adequate long term epidemiological evidence heightens these issues in cell phone

litigation.353 Thus, legal scholars support cell phone plaintiffs advancing to trial to have their

evidence judged under the preponderance of the evidence standard.354

3. Application of the Preponderance of Available Evidence Standard

Although it may be overly presumptuous to assume that courts will reform their standards

for cell phone litigation, the observations and theories suggested by legal scholars in the

Benedectin, Agent Orange, and cell phone areas should help balance the effects of the current

pro-defendant court. Thus far in cell phone litigation, plaintiffs have been unsuccessful proving

causation and advancing to trial.355 In addition, the current long term epidemiological record on

cell phone radiation is inadequate at best.356 The current stalemate merits judicial reform.

Trial judges should allow cell phone plaintiffs to proceed to trial where disputed

causation evidence will be examined by the jury under a preponderance of the available evidence

standard. The new standard will directly offset the development of the epidemiological evidence

requirement, heightened statistical scrutiny placed on cell phone plaintiffs, and the courts’

resurrection of the general acceptance test. In application, the preponderance of the available

evidence standard should balance the effects of the current pro-defendant court by tailoring

inapplicable portions of the Daubert standard and giving plaintiffs wider latitude to introduce

expert causation evidence. The lack of epidemiological evidence and the uncertainty of whether

trial judges are able to properly understand complex statistical analysis are two justifications for

adopting this flexible standard. Until sufficient reliable independent epidemiological studies are

353 Id. at 283.354 Id. at 280-81.355 E.g., Reynard v. NEC Corp., 887 F.Supp. 1500 (M.D. Fla. 1995); Newman v. Motorola, Inc., 218 F.Supp.2d 769 (D. Md. 2002); Motorola Inc. v. Ward, 478 S.E.2d 465 (Ga. Ct. App. 1997).356

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produced, the preponderance of the available evidence standard should be utilized in cell phone

litigation.

First, the application of the preponderance of the available evidence standard will

invalidate the per se epidemiological evidence requirement. The preponderance of the evidence

standard nullifies the epidemiological evidence requirement by broadening the scope of

admissibility for plaintiffs. This standard provides plaintiffs with wider evidentiary latitude to

support their causation theories since reliable epidemiological causation evidence is currently

unavailable. Under the preponderance of the available evidence standard, trial judges are to

consider evidence that is currently available to both parties, rather than a concrete preexisting set

of rules that requires non-existent evidence. The new standard will expose juries to a wider

variety of epidemiological, animal, in vitro, and in vivo studies. Further, the admission of

alternative forms of causation evidence may encourage additional epidemiological research.

Thus, the preponderance of the available evidence standard will allow plaintiffs to support their

causation theories with previously inadmissible evidence, which will hopefully encourage

additional epidemiological research.

Opponents to the adoption of the preponderance of the available evidence standard might

argue that using Bendectin as a model for judicial reform is inappropriate since the anti-nausea

medicine has been proven to be safe.357 However, it is important to emphasize that the methods

adopted during the Bendectin litigation would have screened out the plaintiffs’ cases regardless

of the outcome of after the fact research. A key limitation of the preponderance of the available

evidence standard is that its application is to be utilized only in the absence of strong

357 Lynch v. Merrell-National Laboratories, Division of Richardson-Merrell, Inc., 830 F.2d 1190 (1st Cir. 1987); Richardson v. Richardson-Merrell, Inc., 649 F.Supp. 799 (D.C. Cir. 1986). Both Lynch and Richardson reduced Bendectin claims to mere superstitions.

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epidemiological evidence. The purpose of the new standard is to balance the inadequacies that

have developed during a period of scientific uncertainty. The intent of this standard is self

serving. The preponderance of the available evidence standard should encourage additional

research in the area of the long term effects of cell phone radiation. Once the necessary evidence

is produced, the preponderance of the available evidence standard will render itself dormant.

Second, the preponderance of the available evidence standard precludes trial judges from

overly scrutinizing the statistical analysis of the plaintiff’s causation evidence until after trial.

The preponderance of the available evidence standard is not to be understood to completely strip

judges of their gate keeping role. Rather, the judge is required to act as the evidentiary

gatekeeper during and after trial. Delaying the evidentiary gate keeping role of judges until trial,

ensures that judges will be fully informed of the plaintiffs’ causation theories. One might

question whether attenuated or speculative evidence under the preponderance of the available

evidence standard will inappropriately influence juries. However, trial judges, cross examination,

and juries guarantee evidentiary validity under the preponderance of the available standard.

During trial, judges will be able to fully examine the validity of the causation evidence during

direct and cross examination. Defendants will have the opportunity to test the experts’

methodology in front of the judge and jury through cross examination. If the trial judge finds that

attenuated or speculative evidence wrongly influenced the jury, the judge is not without redress.

After the jury verdict, the judge still has the power to grant a judgment as a matter of law358 or

order a new trial in the alternative.359 Hence, the proper evidentiary safeguards are in place to

support the adoption of the preponderance of the available evidence standard.

358 See generally FED. R. CIV. P. 50.359 See generally FED. R. CIV. P. 59.

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Third, the preponderance of the available evidence standard balances the inadequacies of

the current pro-defendant court by tailoring the inapplicable portions of the Daubert standard.

The nature of the causation evidence currently required to establish causation leaves certain

portions of the Daubert inapplicable. The most recent long term epidemiological evidence in cell

phone litigation has only been attempted by two groups. Further, epidemiological evidence

sought in cell phone litigation is tedious, time consuming, and slow to develop.360 Given the

limited amount of epidemiological evidence and time, the Daubert standards of testing the

methodology, peer review, replication, and general acceptance are largely limited and may be

wholly inapplicable to cell phone epidemiological evidence.361 Also, the epidemiological

evidence in cell phone litigation is relatively new. The amount of time needed to review and

replicate the available epidemiological evidence in cell phone litigation might not be feasible

before trial and especially during pretial. Thus, the standard of preponderance of the available

evidence balances the effects of inapplicable Daubert standards by allowing the jury to test the

validity of the evidence by its weight, rather than judging its admissibility under the

predetermined Daubert standards.

V. Conclusion

As of today, cell phone plaintiffs are at the mercy of scientists and the pro-defendant

court. Long term epidemiological evidence linking cell phone radiation to the development of

malignant tissue would be most beneficial to plaintiffs. Until this research is produced, judicial

reform will balance the effects of the pro-defendant trends, encourage further research, and give

plaintiffs an avenue for redress. Although cell phone plaintiffs need to be realistic, the proposals

360 See Green, supra note 54 at 674. 361 See generally Newman v. Motorola, Inc., 218 F. Supp.2d 769, 773 (D. Md. 2002) (quoting, Daubert v. Merrell Dow, Inc., 509 U.S. 592-594 (1993)).

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set forth in this article should loosen the 25 year grip that Agent Orange and Bendectin have on

today’s causation theories in our toxic tort system.

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