For The Defense, December 2011 - DRI Today

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Product LiabiLity the two types of cancer allegedly associated with cell phone use. Baan, supra, at 625; Press Release No. 208, IARC Classifies, supra, at 2. Further, each study selected by the IARC working group had flaws. One study had a case- control participant bias; another relied on suspect data on cell phone usage. Multiple members of the IARC working With only contradictory, flawed studies on which plaintiffs can rely, plaintiffs’ attorneys probably could not defeat defense motions for summary judgment. group noted these flaws and inconsistencies between studies in declining to endorse the group’s overall finding. For these reasons, neither the IARC working group report nor the studies cited in the report will likely assist plaintiffs to prove causation if they allege that they suffer from the effects of cell phone radiation. With only contradictory, flawed studies on which plaintiffs can rely, plaintiffs’ attorneys probably could not defeat defense motions for summary judgment. Scientists Have Not Identified a Cell Phone Radiation Signature Disease Another factor weighing against cell phone radiation becoming cottage litigation similar to asbestos is that it is not associated with a “signature disease.” A “signature disease” is a specific adverse health effect associated with exposure to a particular toxin and few, if any, other potential causes. Many experts consider pleural mesothelioma, for example, a signature asbestos- related disease. The two cancers most commonly associated with radiofrequency electromagnetic field exposure, glioma and acoustic neuroma, fall well short of meeting the standard for “signature diseases,” as evidenced by the fact that the IARC working group report did not list those condi- 30 ■ For The Defense ■ December 2011 tions specifically as among the diseases that may be linked to radiofrequency electromagnetic field exposure, and the press release simply stated that the evidence of an association between the two diseases and cell phone use was “limited.” Press Release No. 208, IARC Classifies, supra, at 2. The lack of a signature disease will likely prove an impediment to cell phone radiation litigation. Once a toxin is associated with a signature disease, plaintiffs’ attorneys can conduct screenings for that disease to find new clients more easily. Plaintiffs’ counsel also can invest heavily in developing the science of causation for just a single disease, rather than many, and could encounter difficulty finding appropriate experts to establish causation for the particular disease at issue in a case. Without a signature disease, plaintiffs’ attorneys will have difficulty identifying potential clients suitable for pursuing cell phone radiation claims. These attorneys will also need to find and demonstrate that experts qualify as experts to establish causation for whatever diseases plaintiffs allege that they developed in their cases, which will increase the attorneys’ expenses. These impediments promise to reduce the number of cell phone radiation- related lawsuits. FCC Standards Probably Preempt Cell Phone Radiation Litigation Under federal law, the FCC is charged with, among other things, promulgating standards for emissions from cell phones. Most, but not all, courts addressing the issue have ruled that this federal law conflicts with lawsuits that seek to impose liability for emissions from cell phones in compliance with all applicable FCC standards, and the federal law preempts such lawsuits. Courts adjudicating cell phone radiation claims henceforth likely will adopt this position as well. Cell phone radiation lawsuits to date have not alleged that the cell phones at issue failed to comply with FCC standards for radiation, but, rather, that such standards are inadequate. See Farina v. Nokia, Inc., 625 F.3d. 97, 122 (3d Cir 2010); Murray v. Motorola, Inc., 982 A.2d 764, 775 (D.C. 2009). The circuits have split, therefore, on whether federal law preempts these lawsuits. The Farina case illustrates the view that federal law preempts cell phone radiation litigation. There, a putative class consisting of Pennsylvania cell phone purchasers and lessees alleged that cell phones expose users to unsafe levels of radiofrequency electromagnetic fields when they hold their phones to their heads and that phones should not have been sold or leased without headsets. The putative class further alleged that this fact rendered untrue statements that cell phone manufacturers and others in the mobile phone industry made in advertisements, and, in that respect, those advertisements were deceptive. The U.S. District Court for the Eastern District of Pennsylvania ruled that federal law preempted the plaintiffs’ claims. On appeal, the United States Court of Appeals for the Third Circuit affirmed. The plaintiffs’ claims would “erect an obstacle to the accomplishment of the objectives of Congress[,]” specifically “protecting the health and safety of the public, [and] ensuring the rapid development of an efficient and uniform network, one that provides effective and widely accessible service at a reasonable cost.” Farina, 625 F.3d. at 105–107, 124–127; accord Bennett v. T- Mobile USA, Inc., 597 F. Supp. 2d 1050, 1053 (C.D. Cal. 2008) (“a jury verdict finding cell phones unsafe because of the [radiofrequency electromagnetic fields that] they emit would “unquestionably trample upon the FCC’s authority to determine the maximum standard for RF emissions[.]”). The plaintiffs have petitioned the Supreme Court of the United States for a writ of certiorari. The Court, however, seems unlikely to grant the writ, judging by the fact that it requested the view of the United States on the writ petition, and the United States opposes granting the writ. Those courts that ruled that federal law did not preempt cell phone radiation litigation would likely reach a different outcome today. In Pinney v. Nokia, Inc., the Fourth Circuit held that a conflict did not exist between this litigation and federal law, and the litigation, therefore, was not preempted. See Pinney v. Nokia, Inc., 402 F.3d 430 (4th Cir. 2005). This opinion, and the others that reached that conclusion, predated public FCC statements that such litigation conflicts with FCC regulations. A 2009 amicus curiae brief submitted jointly by the FCC and the United States in a cell Cell Phone, continued on page 81
Product LiabiLity One Size Doesn’t Fit All By Diane Flannery and Jason Burnette in search of a better way to resolve the mismatch between the factors that the Supreme Court has identified for assessing reprehensibility in economic tort cases with the typical facts at issue in product liability cases. Analyzing Punitive Damages Reprehensibility In a pair of decisions, BMW of North America v. Gore, 517 U.S. 559 (1996), and State Farm Mutual Auto. Ins. Co. v. Campbell, 538 U.S. 408 (2003), the Supreme Court held that due process forbids imposing “excessive” punitive damages, and that courts and juries should determine excessiveness by comparing a punitive damages award’s ratio to the amount of compensatory damages, comparing the available civil penalties to the available criminal penalties, and applying so-called “reprehensibility” factors. As the Court noted in State Farm, reprehensibility is “the most important indicium” in assessing a punitive damages award’s excessiveness. The Court identified five factors to guide lower courts and juries assessing the reprehensibility of defendants’ conduct: (1) whether the harm caused was physical, as opposed to merely economic; (2) whether the conduct showed an indifference to or reckless disregard for the health or safety of others; (3) whether the target of the conduct was financially vulnerable; (4) whether the conduct was repetitive or was an isolated incident; and (5) whether the harm resulted from a defendant’s intentional misconduct. State Farm, 538 U.S. at 419. The Court set forth these five factors, however, in the context of cases involv- ing economic torts. As a group, the factors provide a relatively poor framework for assisting juries and courts with assessing reprehensibility in product liability cases because these factors are typically found in many product liability actions and consequently fail to distinguish between degrees of reprehensibility. Indeed, depending on how you define the terms, three of the five State Farm factors are inherent in every product liability case, thus they don’t assess relative reprehensibility. See Table 1 on page 32. First, product liability cases almost always involve physical injuries rather than economic harm. Second, some courts have interpreted financial vulnerability not as Gore indicated, as meaning a defendant targeted a financially vulnerable plaintiff, but instead as meaning that the defendant had a greater net worth than the injured plaintiff or that the plaintiff’s injuries left him or her in a financially vulnerable position. See, e.g., Century Surety Co. v. Polisso, 139 Cal. App. 4th 922, 965 n.21 (Cal. Ct. App. 2006). Under this expan- ■ Diane Flannery is a partner and Jason Burnette is an associate in the Atlanta office of Jones Day. Ms. Flannery specializes in product liability litigation, and is a member of DRI. Mr. Burnette is part of the issues and appeal team at Jones Day. For The Defense ■ December 2011 ■ 31
Page 2 and 3: Complex Claims Require Expert Knowl
Page 4 and 5: DRI—The Voice of the Defense Bar
Page 6 and 7: DRI Services 55 West Monroe Street
Page 8 and 9: DRI ToDay— The NexT 50 yeaRs 2011
Page 10 and 11: Embracing Our Common Humanity— Pr
Page 12 and 13: Scalia and Garner: Making Your Case
Page 14 and 15: Transportation Security— Its Evol
Page 16 and 17: The Awards This year during the DRI
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Page 22 and 23: Over Criminalization of Business Co
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Page 26 and 27: pRoFessIonAl lIAbIlITy Sidestepping
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