WEBINAR: Cell Phone Brain Tumor Litigation — Legislation, Barriers and Opportunities
The following is a transcript of this video. Also see related article.
– We can start. Hi, everyone and sorry for the little delay. Thank you for joining us for this webinar. My name is Dafna Tachover and I am the Children’s Health Defense Director of its 5g and Wireless Home Project. Recently, there have been a few important developments regarding the cell phone brain tumor litigation in the United States. We thought that it would be important to offer a webinar to explain this complex litigation and clarify the legal issues involved. Some of the cases which are currently in the court have been there for two decades now. And the litigation has been very complex. And the telecommunication industry and the FCC, it’s captured agency have made it increasingly difficult to bring health effects related lawsuits. We will try and cover as many issues as possible in the next couple of hours. However, I have no doubt that we will not get to address all of the issues. We will take questions. However, I doubt that we will have time to answer those questions. However, I will read the questions throughout the interview and I’ll try to incorporate them into my questions to Hunter Lundy. The most significant recent development is a new case that was filed in April by a family of a pastor Frank Walker from Louisiana. Who died from a glioblastoma brain tumor. The family claims that Mr. Walker exposure to cell phone radiation caused his cancer and death. Attorney Hunter Lundy in collaboration with our Kennedy Jr., the Children’s Health Defense Chairman filed the case on behalf of the family. Because of his involvement in the new case and his involvement in a cell phone brain tumor litigation in other cases for the past couple of decades, I thought that Hunter Lundy is probably the best person to explain the various issues concerning this litigation. Hunter Lundy is one of the leading personal injury attorneys in the country. He founded Lundy Lundy Soileau & South, a law firm located in Lake Charles, Louisiana in 1986 35 years ago. I met Hunter a year and a half ago when he invited me to be interviewed for his Roku’s TV show, “Standing for Justice.” He also invited me to present with him in the American Justice Association conference. I say it with all my heart that I’m truly honored to have met Hunter. And he’s not only an excellent attorney, he’s also motivated by the pursuit of justice. He’s leading complicated litigation against the biggest companies in the country and world. Leading such litigation is like running a marathon and require investments of immense resources, financials and otherwise. So I’m personally grateful for his work and dedication to this issue. Hi Hunter.
– Hi Dafna, how you doing?
– I’m doing okay considering everything I guess. So Hunter, can you please just tell us briefly how you got involved with the cell phone and the wireless harms issue?
– Well, back in the late 2000s, 2008, 2009 I was looking at devices that could reduce exposure to radiation. And I started studying the issue. And then in 2010, I received a phone call from Erin Brockovich. Who asked me if I would consider helping this family in California, a gentleman named Alan Marks who had gotten a brain tumor.
– And it was a real a lot of exposure. And so I joined forces with another firm and we filed a suit for Alan and Ellen Marks. And it was filed in the District of Columbia, the Superior District Court. And the reason why is the nonprofits involved in the lobby and efforts for the wireless industry are located there. And there were some other suits already pending. So we filed the Alan Marks suit there. And then it’s been an ongoing process for the last decade. And as much as we’ve been through five judges now and we’re still trying to get our day in court. And so it led us to go ahead and file a suit in Louisiana for a gentleman… We had venue in D.C. for cases anywhere in the country. So we were able to bring those lawsuits from various states into the D.C. Superior Court. Now, I know the docket is heavy and there’s a large volume but I think we need to move forward. With the science evolving the way it has and with the issues involving the wireless community, we can no longer wait on a result or the hope of getting a trial date in D.C. So we filed the Walker suit in Louisiana in federal court. And I suspect there’ll be other suits filed too. So we wanna push this issue as fast as we can to, a jury. So we can have a jury of our peers make a decision on who’s right and who’s wrong. ‘Cause there’s been an argument made over the years that this cell phone radiation is is harmless which we know not to be the truth. And so we want a jury to hear the case. I lost the volume. I lost the sound.
– Sorry it’s me. Sorry, I unmuted myself. One of the reason we are conducting this webinar is because they’re a lot of complex issues. And many people do not understand really how the legal system works. And I wanna clarify, you mentioned that you filed Alan Mark case and you filed it in the D.C. Court, which is State Court. While the current case that you filed, the new case you filed was filed in a federal court. And I just wanna clarify that in the United States there’s essentially two separate legal systems. There is the state State Court system and there is the federal court system. There are certain cases that have to be filed in a State Court system. Certain cases have to be filed in federal courts and some cases can be filed in both. The way the federal court system is structured is that they are numerous district courts around the country. However, when it’s come to appealing a case there are only 13 of appellate court around the country. And we refer them as a circuit court. And they’re numbered. They are numbered from one to 12. And there’s an additional court which is in D.C. which is not numbered. Which is called U.S. Court of Appeals for the D.C. Circuit. So essentially the current cases, those 70 cases that are currently in the court they are in the D.C. State Court, right?
– That’s correct.
– And the case you filed, the new case you filed is in a federal court in Louisiana.
– That’s right.
– And so you mentioned that when you filed your case, the Alan Mark’s case in D.C., at the time there were about I guess around 13 cases, correct?
– Yes, and there’s been many more since that date.
– Right, and so right now they’re, I guess around 70 cases in that same court. However, the court decided that in order to make the litigation more efficient it consolidated some of the cases for the purpose of evidentiary hearing. And then until there is a decision in those evidentiary hearing, the rest of the cases are not going to move forward.
– That’s correct. You wanna hear the process of how that came about?
– The District of Columbia had a standard that was different than many of the other states on the examination of expert witnesses. Before an expert can testify in front of a jury the parties have a right to check out their credentials and look at their methodology informing their opinions. And then the court makes a ruling on those experts. And then the ruling is yes, they can testify in front of a jury or no, they can not. And the cell phone litigation in D.C., there was a standard, was applied for years called the Frye standard. Now the Frye standard is a little different than the other standard that’s applied in all of the states and all of the federal courts called the Daubert standard. In Louisiana, they like to say Daubert for French but I I call it the Daubert standard. And so the Frye was the existing law in D.C. And the court ordered a Frye hearing that we held back in 2013. And the Frye standard was whether or not the opinion of the expert was the generally accepted in the scientific community. That was generally all that you had to prove, that the expert’s testimony and his opinion was generally accepted. You weren’t really challenging his opinion that much as you were his methodology. The Daubert standard is one that allows you to examine the reliability of the experts opinion. Which is a little different standard a little bit. You still have to prove that it meets the general acceptance of its scientific community. But you gotta prove that the opinion itself is reliable. And there’s several steps that you take in proving reliability or not. And so we tried the Frye hearing back in 2013 and the 1st of 2014. And we had like seven or eight experts where the court approved the majority of our experts under Frye. He said their methodology was accepted in the scientific community. But then he certified the request of the defendants to appeal that decision to the D.C. Court of Appeals. So we ended up more than a year later. Of course it took months before we got a decision. So at the end of 2014, we got a decision. At the end of 2015, we were probably in front of the D.C. Court of Appeals. And then they reversed and got rid of the Frye standard. They chose our case to change the law. And so they reversed and they sent it back to the State Court to say, you have to redo your evaluation under Daubert. We’ve now been waiting on a date for a Daubert hearing. We had to change the reports of our experts. And we went through a motion practice where they tried to exclude parts of their testimony. And the court tried to limit our science and these opinions to only be a new science. And there’s been a lot of argument over what should be allowed and what not should be allowed in the Daubert hearing. We had a Daubert hearing set for last summer and then the COVID crisis happened in the United States. And so the court postpone the hearing because all of our experts except for one are from out of the country. And so getting them to come into the States to testify on a Daubert hearing was very difficult if not impossible at the time. And some of these experts, their third language is English. Some speak Swedish and Russian before they speak English. Some speak Greek, some are Austrians. So that’s a complication. The European seemed to have been way ahead on the Americans on the science with respect to cell phone radiation. That’s why these gentlemen were experts. So now we’re faced with another hearing date for this summer for Daubert. We don’t know how it’s gonna proceed yet. It may proceed just like we’re doing right now in Zoom hearing overrule webinar. Which would be extremely difficult when you have language barriers and you have distances. We would be much better served to have a live hearing where the witnesses take the stand just like in the Frye hearing. Where the court can judge credibility by looking at them and listening to them. Which is is a much better position than having to do this by Zoom or some other form or fashion. So that’s been the procedure. So we’re now looking at a July hearing date for Daubert on the D.C. cases. And you pointed out that the number of the cases were consolidated for purposes of the Frye and the Daubert hearing. So a ruling as to one may be a ruling as to many. So that’s kinda where we are in D.C. Alan is probably the longest living glioma, which is the generic name for the brain tumors. The glial tissues get cancer. Depending on the stage of the glioma is the name that it draws for the type of cancer. Like if it’s a glioblastoma, that’s stage four. If it’s astrocytoma, that could be a stage two or three. And so depending on the stage of the cancer is what it’s called but they’re all gliomas and they’re all glial tissue cancers. He is one of the longest survivors in the country from the type of cancer that he was diagnosed with over 10 years ago. And so he recently had another surgery. But that’s kind of where we are procedurally in D.C.
– Thanks Hunter for that. So I’m just going to quickly summarize. So essentially in order to decide which of the plaintiffs experts will be allowed to testify in trial in front of the jury, we’ve been waiting now for over seven years. While you did have an evidentiary hearing in which the court approved five out of your eight experts and they approved it in 2013. Now again, we’re going to go through the same process but based on a different kind of standard as to, which experts qualify to testify. And this time it’s going to be run under the Daubert standard, is that correct?
– That’s correct.
– And so I have a question. So in 2013, when Judge Weisberg decided that five of the expert will be allowed to testify, he made a statement. He said, “The plaintiff expert would almost certainly be excluded under Daubert.” So basically what the court said that while he could qualify them under the Frye standard he doesn’t think that they meet the Daubert standards. So that kind of like a bit scary for those of us who were following the litigation. Do you think that those experts can qualify under Daubert?
– Well, yes or we wouldn’t be proceeding. And of course at the time that the statement was made, they didn’t even have the Daubert standard in D.C. And they hadn’t even tried any Daubert cases. And so depending on what judge it is is to what ruling you’ll get under the Daubert hearing. It’s discretionary with the court in deciding on whether or not to allow. You go through the test but I can say this. The science has evolved favorably for the brain tumor victims since 2013. And so there’s much more science today than there was when we tried the Frye hearing. That supports the position that these brain tumors can be caused by cell phone radiation. In my observation that’s beneficiary to the plaintiffs. And I hope the court will consider-
– I guess for that reason, recently in March, 2021 you filed a motion for the court to allow Dr. Christopher Portier to testify in the case. And he filed a 176 page report regarding the evidence of brain tumor, cell phone brain tumor. Portier could be an amazing expert. He was the director of the National Center for Environmental Health at the CDC. He used to work for the NTP, the National Toxicology Program. He was also part of the World Health Organization decision in 2011 to classify cell phone radiation to be possible carcinogen. Unfortunately on April 21st, the court ruled that he would not be allowed to testify. Can you explain the court decision?
– It’s a timing issue. Dr. Portier agreed to serve as an expert in this case and in this past year. And his report was prepared and we submitted it with the motion. The court previously sought of allowed the disclosure of experts and the parties deposed each other’s experts. And it’s basically just not wanting us to add a witness. They don’t want us to add any witnesses. They objected to it. They don’t wanna add a witness. I’m not gonna comment on… And when I say they, the defendants and their lawyers opposed adding the witness. And so he may not be a witness in the D.C. case. But I suspect nobody will be successful in keeping from being a witness in the new filed case. Because they won’t have an argument that it’s untimely. Or we’re limited in scope to the previous witnesses that were listed and deposed. So that’s all. I’m only gonna discuss what was publicly listed in the court’s opinion. And basically it’s a timing issue over the defendant’s objection. He didn’t have anything negative to say it was all positive about Dr. Portier. It was just a timing factor. We want all the truth to come out, that’s all I can say. As a plaintiff’s lawyer representing these victims of cell phone tumors, we want all the evidence to go into the record. The court has the discretion. He has the discretion to make the ruling that he made and he made the ruling. We’ll live with it and we’ll keep fighting the fight. At some point all of the truth will come out at some point.
– Thank you. You mentioned earlier that, basically the delay with the evidentiary hearing played to our favor. Because since 2013, a lot of new evidence came that support causal connection between exposure to cell phone radiation and brain tumors. I guess mainly, you’re referring to the evidence in the National Toxicology Program study and the Ramazzini study. Can you explain the importance of this studies to the litigation?
– Yes, and I’m gonna discuss what’s public knowledge. I’m not gonna discuss any particular issue in any of these lawsuits or litigation. But what’s public knowledge is that the federal government funded an animal study. And it’s the longest animal study that’s been performed on cell phone radiation to this date. And they started releasing the results of those animal studies in 2016. And they were studies performed on rats and mice. And generally, the government wants to see the effect of toxicology results on animals. To use that science in relationship to how they should treat the issue with humans. So they did the animal study and the animal study came back. And they reflected a positive association between cell phone radiation and brain tumors and schwannomas. Which is a cell that’s very similar to the acoustic neuroma cell in the human. And of course, we’ve made the argument that those studies show exactly what we are contending in this case. And what was missing in 2011 when the International Association Research on Cancer came back and they found a possible association between cell phone radiation and brain tumors. Particularly, gliomas and acoustic neuromas were animal studies. They said there was a gap in the animal studies. And so therefore they were only gonna give it a 2b, which means possible. A 2a to means probable. A one means known carcinogen. So a possible carcinogen is a 2b. A probable carcinogen is a 2a. And a known carcinogen as a one under the World Health Organization called International Association Research on Cancer. That result came out in 2011. And these animal studies started coming forward in 2016, ’17 and ’18. And many scientists have said that had those animal studies been available back then, this would be a probable carcinogen not a possible carcinogen. So I think that’s been said publicly in many different places by many different scientists. So we wanna use the animal science now. We believe that it’s very relevant to this litigation. An expert’s evaluated whether under Frye or under Daubert. But now under Daubert. If you’re more comfortable with me saying Daubert. I’ll say Daubert. I don’t care. There has to be a Bradford Hill analogy. Sir Bradford Hill was a great scientist, a British scientist. Who created a nine point observation or evaluation in determining whether or not a certain chemical or product or element, would cause a disease. So looking at animal studies along with epidemiology. Which in 2011, IRAC said there was sufficient epidemiology to call it a carcinogen. But there wasn’t enough animal science. So they look at things as animal science. They look at epidemiology, they look at dose. They look at, I should be able to recite as many times if I had the argue Bradford Hill analogy. But analogy is one of them, dose is one of them. Gradient, epidemiology, mechanism of injury, all of these are the different things that a scientist looks at. To make a determination whether cell phone radiation can cause gliomas or acoustic neuromas. So this animal science is a big helping factor. And plus there’s many other mechanistic studies now and toxicology studies that didn’t exist seven years ago that that are out there. There’s been a thousand studies done around the world that are relevant to this issue. And so, we just want the full opportunity to put on all of the evidence that the court will allow at the hearings.
– It sounds like you’re quite optimistic in terms of the science between those thousand studies that were published after 2013. A lot of which, as you mentioned show that there is a causal connection between exposure to this radiation and adverse effects. For example, the oxidative stress mechanism. And also the study that showed that this radiation indeed can cause cancer in animals. However, I just want to clarify that if I understand the decision of the court from April 21st, only evidence that was published up to 2017 will be able to be used in the litigation, is that correct?
– I think it’s evidence that was published after the court’s ruling in the Frye hearing. Which was earlier than 2017. It’s in that timeframe but it’s a little bit earlier than 2017. I don’t have the opinion in front of me. If you’re reading from the opinion then that’s what the law is. Whatever the judge says-
– Yeah, I think because what the court says that it was up to 2017, the experts could file an update expert opinion. And therefore the evidence that can use is 2017. Which means I think that you will be able to use the findings of the NTP study but you would not be able to use the findings of the Ramazzini study.
– That’s correct. The NTP study started coming out in 2016. So if the cutoff date was 2017, yes, you’re right, we’ll use that. And if Rammazini was after that, the court’s gonna exclude it. Again, that’s the court’s discretion to do that. I’m not gonna argue one way or another on basis whether he’s right or wrong.
– So we’re going to go backwards a little bit about the issues surrounding the litigation and who can sue and who cannot sue. So basically what we’re going to discuss a little bit is the issue of preemption. So I wanna give a little bit of a background. So in order to understand the litigation it is important to understand the legislative framework that control this area of law. The telecommunication field is regulated by two main laws. One of them is the Federal Communications Act of 1934. Which gave the FCC wide authority to regulate telecommunications in the United States. And the second law is the Telecommunication Act of 1996. For the most part, it is the Telecommunication Act of 1996 that has enabled the uncontrolled proliferation of wireless technology. And directly and indirectly has taken away our rights to sue based on health effects. The most notorious section is what is known as Section 704. And I wanna clarify that this is the section number in the Bill. However, in the codified law it is referred to Section 332 C7. This section does a few things. It first gave the rights to regulate health effects to the FCC even though the FCC is not a health agency. And it also took the power from the state to regulate the location of cell towers based on environmental consideration. And environmental considerations later on was interpreted to mean health. This is why for example, we cannot object 5G antennas near people’s home even though they are causing widespread sickness and sometimes even probably death. The third thing that Section 704 did is to instruct the FCC to adopt what’s referred to as effective health guidelines. These guidelines have become the main tool by which the harms and our rights including our rights to sue have been denied. And generally speaking, the current accepted paradigm is that as long as cell towers, cell phones and wireless devices comply with the FCC guidelines, lawsuits are preempted. I think that understanding the guidelines is essential to understanding the various issues surrounding litigation. So Hunter, can you please just quickly explain the scientific premise behind the FCC 1996 guidelines. And how they affect cell phone brain tumor litigation.
– Let me just discuss what I know from an opinion standpoint that’s public knowledge. And I really don’t wanna argue a preemption or not or discuss the guidelines. I know that there were three court of appeals decisions. One called the Farina, one called the Pinney and one called Murray versus Motorola. One said there was absolute preemption. One said there was no preemption. The Pinney said no preemption. And the Murray versus Motorola was like somewhat of a hybrid decision. The hybrid decision was that it said that phones manufactured before the Telephone Communications Act in 1996, there’s no preemption. Phones manufactured after the Telecommunications Act in 1996 there’s preemption unless you can prove that the phone does not meet the SAR standard. And the SAR stands for the Specific Absorption Rate. There was a formula to calculate it at 1.6, I’m trying to think per per-
– Watt per kilogram.
– Watt per kilogram of tissue, body tissue. Per one gram of kilogram per body tissue. And it was a general standard that was created. And it was really for the body. It wasn’t a standard that was looking at brain tissue but it was a standard. And so the Murray court of appeals, and that’s the name of the case that we’re moving forward in D.C., it’s Murray versus Motorola. And it was remanded back to State Court. And we’ve been getting prepared to try a case under that ruling. And so the cases, phones we know. Some do but most don’t meet the SAR standard. Now, whether or not the SAR standard is just relevant to cell phone radiation and what’s causing the brain tumors. That’s a different question. And I don’t believe it is. But it doesn’t matter if the standard is in existence. And it gives people the ability to make an argument as to whether it’s preempted or not. Preemption means that if a federal agency or a governmental agency regulate something, and that regulation is one in which if you’re trying to attack it, which we’re not. But if you try to bring a State Court action that somehow conflicts or involves the very same issue in which the government has already taken control of then you can’t go forward in a State Court case. And in some cases you can’t go hard in a federal court case too. So preemption is a complicated doctrine. I don’t wanna get into arguing it because it’s not over with these cases. I know recently, there was a class action filed in California. And it was because the Chicago tribune had bought a bunch of Apple and Samsung phone and they tested them. And none of them passed the SAR according to their FCC certified lab. It said they didn’t pass the SAR. So they filed a class action for consumers around America who bought phones that were represented to meet the SAR when they weren’t meeting the SAR. And that ended up in some discovery. And the federal judge in and the Northern District California ultimately said, “Well, I believe that’s preempted.” And he granted a summary judgment of the case. I have some real differences with some of the findings that he made in his summary judgment which I think are inaccurate. But it’s on appeal to the Ninth Circuit Court of Appeals now, that issue. I really don’t wanna get into details on this. I don’t wanna go forward with my client’s cases. And we’ll make the appropriate arguments at the right time on whether preemption applies or doesn’t apply. Right now in the Murray versus Motorola case where all these cases are filed, it’s not applicable. Because we’re going under the presumption that we’ll show that these phones do not meet SAR. So I don’t know if that helps you or not. Dafna, I know that the issues that the Children’s Health Defense and Environmental Health Trust that they fought in front of the FCC. Y’all are waiting on an opinion from a D.C. Court of Appeals on that case. You’ve argued in front of the panel. I don’t wanna affect any court’s decision one way or another on this issue. I have some strong opinions and strong arguments-
– Have no doubt.
– But I have said enough. I hate to divert your question but I think I’ve said as much as I should say.
– So let me just say a couple of things. So right now under the Murray cases. According to the court’s decision in Murray case in 2009 as to who can and who cannot file a lawsuit from cell phone harm. The court decided that you can file a lawsuit if you can show that your phone exceeded the exposure levels allowed by the FCC guidelines. Is that correct?
– That’s correct. Or you can file the lawsuit and you can reserve the right to prove that when you get into the specific causation.
– Right. I guess you can also file a lawsuit if we started to use cell phones before 1996. Meaning, before the FCC passed it’s alleged health guidelines. Even if the phones were in levels of radiation lower than FCC guidelines, as long as you can show that the actual damage was caused to you from this phones. Is that correct?
– That’s correct.
– Okay, and I just wanna clarify a few issue for preemption. So essentially Article VI of the United States Constitution include what’s called the Supremacy Clause, right? Which states that the federal law is a supreme law of the country. And therefore in cases where there is a clash between federal and state law, federal law will prevail. However, the constitution says that you can still, like the three types of preemptions. One will be expressed preemption when the federal specifically said that state law is preempted. However, courts can also find what you call implied preemptions. All right, then there are two types of implied preemption. One is conflict preemption and the other one is field preemption. Implied conflict preemption means that, even if a federal court does not say that state law is preempted, you can find implied preemption if complying with both federal and state law at the same time is impossible. And this is really what was found when it comes to cell phone and why we cannot sue for cell phone harm. Because the court says, even though the Telecommunication Act of 1996 and Federal Communication Act of 1934 do not say that you can not sue for damages from injuries from this technology. The court ruled that if you will be allowed to sue for damages from cell phone that will interfere with the objective of the federal government. To provide widespread a nationwide network of wireless telecommunication. And this is really why the court says that even though for example, the Telecommunication Act does not specifically preempt personal injury lawsuits, the court decided that there is an implied preemption. Because allowing this lawsuit will interfere with the objective of having nationwide wireless network. Is that correct?
– Well, I think you’re making a good observation from the opinion. Again, I disagree.
– I disagree as well. and there’s a lot of good arguments.
– I don’t wanna argue it. You can come up with any kind of rational basis you want to try to preempt something. The truth is, what’s causing the brain tumors is not even related to the standards. Without getting into details, I know what’s causing this disease and it’s only gonna get worse. This is the example I gave earlier was that, we have children, we know that the brains and the skull of children really do not mature into to that of an adult until they’re in their 20s. And so we know that for instance, the testing mannequin that they use to even look at the SAR is a 6’2 190 pound man. That they used and have used from the beginning of time to simulate the use of a cell phone. And we know that children got on these cell phones when they were young. Some of them, the statistics show that 30% of the kids are still sleeping with them next to their pillows at night. And so the exposure 20 years ago by a 10 or 12 year old child that got on the cell phone. And then years later they’re 22, 23 they’re getting married. And the married couples today are not even having landlines. They’re strictly going wireless. So the exposure is great. And so now we’re seeing young adults in their 30s getting brain tumors, getting glioblastomas and astrocytomas. ‘Cause they got on the phones when they were 10 years. ‘Cause we know research shows that 20 years or 10 years of use more than a half hour a day will increase your risk twofold of getting a brain tumor. So we’ve exposed our young people to something that really increase their risk to getting a brain tumor at an early age. Now, I’m an older gentlemen and a lot of people of my age, so in my profession, lawyers and doctors and realtors and law enforcement people and all. In the 1980s, late 80s, early 90s, they got on the cellphone. 10, 15 years ago, you saw more people in their 50s and their late 40s and their 50s getting brain tumors from using cell phones. ‘Cause they didn’t get on it until they were adults. Now we’re gonna see it trend differently. And we’re seeing that trend differently with young people now getting these tumors. And that’s because they got on the phone as a child. Now, the European countries, we talked about the Europeans being involved as witnesses. The Europeans are ahead of the Americans or else they have a weaker lobby than we have over here with the wireless community. You’re an Israeli I believe, am I correct?
– You’ve got dual citizenship. So in Israel, I think they forbid the use of a cell phone for a teenager and under 16 years of age. I think in India and I think in Russia even and another countries around the world, they take a better precautionary measure for young people than we do here in the United States. And I think we’re gonna see a trend that’s gonna really open some eyes. And so are we gonna sit around and dodge and use some arguable legal precedent to disallow the truth and to not protect our society is a question yet to be seen. But I know from my experience of being in environmental litigation it takes a lot of times, it takes a jury. It took three juries and roundup. We’ve seen one jury trial result and another case, the Johnson and Johnson case involving talcum powder. And how many juries did it take in tobacco? How many juries did it take in other things to change the habits of Americans to protect the health and safety of Americans? And so I do have a passion about seeing the truth come out. As a trial lawyer, we’re supposed to be truth seekers. Not hiders, truth seekers. And so, I just believe we’re gonna get our day in court somewhere on this issue.
– So if indeed the, let’s say you’re going to have the evidentiary hearing in July of 2021. So in a few months. And let’s say the court will find that the experts qualify under Daubert. Can you take us through the next step in the litigation process? What will happen after.
– I don’t know what the judge, Judge Erving will do. He’s the fifth judge on the case now. And, if he will ask the parties to select trials. And then we will move into the next phase of the case. Which we have not been allowed any liability discovery. In this case, we’ve only exchanged the evidence on the science. Now, we tried to go back and argue for the liability discovery because I think that tells a lot. We already know a lot about information that’s come through the public forum. About insurance companies not wanting to write insurance for this wireless industry, the cell phone industry anymore. We know that Swiss Re, one of the re-insurers of London many years ago said they wouldn’t write. We wanna see the correspondence between the wireless industry and the insurance industry. We wanna see the discussions behind the screen. We wanna know why these things took place. We wanna know what they discussed internally about their risk and what it is. Now, we’ve seen what’s in the public venue on the signs. But we wanna see what documents that haven’t been produced, that haven’t been disclosed. We wanna take those depositions of their in-house people that were evaluating the risks. We haven’t been allowed to do that. So until we get our discovery, until we get the liability documents, then the truth won’t be known. And so the complete truth. Now, we know enough to know that cell phone radiation is causing disease. But as to the liability of what they knew that’s relevant to proving whether or not they should have done something. And this case is no different than any other cases. We want the American people to be informed. We’ve had free will since the beginning of time. And we don’t have free will when we’re not told what the dangers of a product. Or we’re not told what the consequences of exposure will be. We’re not told that little warning label that got put on the cigarette packs because of litigation. That says this may cause, the surgeon general says this may cause lung cancer. For years, they had doctors doing their TV commercials for cigarette packs. Now tell me what changed all that. And that was a jury chaired the changing when the truth got out. And we want the truth out in this litigation. And we don’t wanna be bootstrapped and we don’t wanna be prevented. And we don’t want our hands tied. We just wanna go forward in this case just like any other case if that makes sense to you.
– Yes, and actually, it may be a good time to add that in addition to the claims in the Murray lawsuits basically that the cell phone cause the brain tumors and for some people the death. There’s also separate claims in the lawsuit regarding to fraud on the part of the wireless industry and some of them based on consumer protection laws. In that case specifically, it’s the D.C. Consumer Protection Procedures Act, is that correct?
– That’s correct. So that’s asserted in the D.C. litigation. And of course we asserted the Louisiana-
– Right, in the new case. We have deceptive trade practices that each state generally has their own deceptive trade practice. So he pledged that. When you mislead the consumer or you don’t make full disclosures, that’s deception. Once again, how do you have the right to choose when you don’t know?
– I think that the industry tried to get to court to decide that those fraud claims also will be preempted. However, in Murray the court decided that this claims, the fraud claims will be allowed to proceed regardless of the preemption issues. And that is by the way, unlike Apple. In Apple the court did say that the fraud claims are preempted which is pretty disturbing decision. So what it means is, tell me if I understand correctly. That even if a jury will decide that there’s not enough evidence for causal connection between brain tumors to cell phones. If you will be able to show that the industry has deceived in regards to the science for example, there could be still the decision against the wireless industry on those causes of actions. Is that correct?
– That’s my understanding of the opinion on Murray verses Motorola opinion. Like I said, there’s three court of appeals decisions and they’re all different. Then you have an opinion out of federal court in California. At some point we’ll have a Ninth Circuit opinion on that issue. And I believe in all three cases, Murray, Farina and,
– Pinney. I think the Supreme Court are not hearing any one of them, so the U.S. Supreme Court. So right now we’re believing we’re gonna get a trial date of some kind. It may just be under consumer fraud but I think it’s gonna be more than that. I think we’re gonna get a chance to try to the health issues.
– So basically what you’re saying is that while the Fourth Circuit in Pinney said that there’s no preemption. The Third Circuit in Farina did say that there is a preemption. And also the D.C. Court in Murray said there is preemption. After Farina, there was a request from the Supreme Court to hear the case to decide. Because it’s like a split opinion between the different circuit. And they wanted the Supreme Court to clarify whether or not there is preemption. But the Supreme Court refused to hear the case. That’s the case. And so this split continues. And which in a way is a good thing for us. Because we can still bring cases and argue that there’s no preemption. And I actually think after reading all the court’s opinions that if the Children’s Health Defense and the environmental health case will be successful. That, will significantly help to counter the preemption arguments. Because if we will be successful, it would mean that FCC did not do its job properly in deciding the guidelines. And therefore they cannot be trusted. And that there is going to be this balance that FCC is supposed to strike between the health effects or protecting the public health to promoting wireless. Their decision as were the the balance stands is going to be incorrect as well as their guidelines. So that probably would be a positive impact to the preemption issue. I guess it would be also helpful for the new case that you filed, right?
– I believe it would be.
– So can you tell us, why did he decide to file a separate case in Louisiana rather than just wait for the Murray decision?
– Well, because I’ve been waiting 10 years for that decision. And I believe that we will move this case here in Louisiana, much faster. I think we will get to use American scientists now. I think the American scientific community is now on board with these issues. Especially after you have a U.S. Government funded animal study that comes back and shows what the NTP studies show. You got the NIH saying it shows the very thing that we say it shows. Dr. Portier, you have-
– Dr. Lyndon Berenbaum who used to be the head of the NIHS. Ron Melnick.
– Ronald Melnick who helped write the protocol. These are all well-respected American scientists who now are voicing their opinions and there’s others. I think we’re in a better feeling now. I think many times when you have, I call it a gut feeling. Which I might say my feeling 10 years ago was a gut feeling, that this was the right thing to do. And today I know it’s absolutely the right thing to do. And the science is supporting. Sometimes as trial lawyers, we get ahead of the science when we believe something. We might have a clinical finding, a clinical study that supports what we know is true. But because you have the Bradford Hill analogy you have got to have epidemiology. And you got to have other studies and other signs that you can do your Bradford Hill analysis and say, hey, there’s causation. And sometimes it takes time for that science to develop. Well, I’ve watched the science develop for the last decade. And I feel pretty good about the decision we made as a law firm 10 years ago to get involved in this matter.
– By the way, you mentioned the Bradford Hill. I’m thinking of Professor Lennart Hardell was probably one of the leading, if not the the leading scientists when it comes to cell phone brain tumor. He published twice papers. One in 2013 and one in 2017 analyzing whether or not the science according to Bradford Hill show that there is causation. And it did show twice that yes, analysis based on Bradford Hill does show that the science proved causation when it comes to cell phone and brain tumors. So let’s talk a little bit about the new case. So you filed a new case in a federal district court in Louisiana. What is the next stage in the case? So what are we waiting for now? You filed the case, I think on April 8th, right?
– We’re serving all the defendants. It takes up time sometimes. And the defendants are retaining lawyers, we know that. As soon as we get a notice from the court, as soon as they file responses to us we’ll get notice to make disclosures. And they’ll make disclosures. And then the process will begin. The parties have a right to try to conduct discovery, file motions or whatever. That’ll be the next stage of litigation. The court will send out an order and set some deadlines. And then we will get on with the program. I believe that whichever judge is assigned the case he or she will keep the case. They will they will keep the case through the whole process. Unfortunately and I don’t mean this disrespectfully to the to the D.C. Superior Court we’re on a carousel. We come around and it’s another judge. We’ve come around five judges on the same project.
– Five judges in 20 years.
– We’re are gonna have the same judge. And we’re gonna get through this process with the same judge. And that’s what’s right as far as the parties concerned. The Walker family’s entitled to getting this thing pushed as hard and as fast as they can. They do want closure. This man was, without me going any further he was a remarkable man. And they all suffer. There’s nothing more disabling than a brain tumor. I’ll leave it like that without telling you the process these people go through. And sometimes the number of surgeries they go to as the quality of life is just gradually taken from ’em, taken from ’em. And like I said, I think Alan Marks is out of all of these plaintiffs and most of them were wrongful death cases. They’re not personal injury cases. Most of them are wrongful death cases. He’s one of the longest survivors.
– So I guess by filing the new case, you’re quite optimistic about the chances to finally show that the evidence is there that cell phone do cause brain cancer or brain tumors.
– Yes, and I think there’ll be other cases filed. And I think they’ll be filed in other venues. We just need to push this thing as fast and hard as we can. And again, I think the science has evolved favorably. And the American scientists are now in the middle of this. And that makes all the difference.
– I agree. So I’m going to ask you kind of like hypothetical question. So let’s say you win, what do you think will change? How do you think that successful litigation will impact the way we use cell phones, what would happen with wireless technology? What impact do you think this cases will have? Especially considering everyone’s so addicted to the cell phones.
– Well, I think parents are gonna wake up. And they’re gonna be a little bit more forceful with their children. I think there’s a bigger awareness today of the dangers than there was when we first got involved in this. I think that the cell phone manufacturers many of them are selling their phones with accessories, earbuds. And I know they’re telling people if you wanna reduce your exposure to text, to use an earbud to speaker. They’re doing all these things. And they’re not doing it because they just wanna add some words to their literature. They’re doing it for a reason. Why wasn’t that done a long time ago? And then that’s only the beginning. But you gotta add a sentence or two to that. And you gotta say, why are we suggesting this? You simply say because these will cause brain tumors. If you look at a commercial today on TV. You’re asking hypothetical, look at the television commercials that are run by the pharmaceutical companies. They sell their product but they spend more time explaining the risk of their products but they’ve been selling their products. ‘Cause they’ve learned. They’ve learned the hard way. And so, that’s a simple request, that’s what we want. We want people to be informed and they can make an informed decision. Yeah, it increase your risk. You may use the phone a lot and I live to be a hundred and never have any consequence. Or you may use the phone a lot and get a brain tumor 32. I know what the stats show on glioblastomas and the age group that they most affect. And they’re not affecting young people like they’re affecting them now. And so these things, they’re a problem. And the world needs to understand it, that’s all. Just information. We just want them to give the information and explain the consequences to people. And the people get to make the choice.
– I read a complaint that you filed in the new case and I recommend everyone to read it. It’s just fascinating. It’s disturbing, it’s upsetting. Especially when you get to the parts where you list 18 different patents that were filed by defendants in your case. In which they came up was different with different patents on how to reduce exposure to this radiation. And in some of these patent applications they even admit that there are harms. And so considering, they could have incorporate those patents into their cell phones to reduce exposures and they haven’t and they actually did the opposite. They actually took efforts to make those cell phone more dangerous by increasing radiation. By removing ports for headphones. And at the same time they continue to defraud the public saying that there’s no evidence of harms. While they admit in those patent applications that they are and actually widespread harms and various harms. And they were allowed to continue with deception for decades now. And in the support of the Federal Communication Commission. That instead of protecting the public they’re just doing the opposite. And I think most outrageously, in the 2019 order where they decided not to review the health guidelines. They said there’s no evidence. While there is increasing evidence that cell phone and wireless technology are harmful, the FCC even became more extreme by saying that there’s no evidence of harm and said that cell phones are safe. So it didn’t even say maybe it’s harmful or be careful or anything. They just literally said cell phone are safe. Thereby knowingly misleading the public as to the safety. So I think that your cases are extremely important in informing the public. And finally exposing the truth that is prevented from the public by the telecommunication industry as well by our own government. Pretty outrageous. And it’s really outrageous that it takes so long to expose the truth. And that these lies was able to be propagated so successfully for so long. Anything else you would like to add Hunter?
– I just pray that the truth be known. What was it the prophet Hosea said, “My people perish for lack of knowledge.” And we just want people to be informed. If they have adverse consequences it’s only because of their choice. So this is all about the right to choose. Unless you know the truth you don’t have a right to choose. And these kids don’t have a right to choose ’cause they don’t know. And their parents don’t know either ’cause they can’t tell their children what to do. And so there’s little fires going on all over the place but getting the media to focus on this. And you and I could go through a long list of people that we know that died from cell phone tumors. Many of them in high places and many of them that were well-known. And it was all due to excessive use. And so the risk only occurs. We know that smoking cigarettes it took, 20 pack years. 20 years of smoking a pack a day to increase the risk that get in the lungs. It’s no different with a cell phone. It takes a certain number of years of cumulated hours of use to increase your risks. And unfortunately, yes, you said it while ago the public is addicted to them right now. You can’t walk through a grocery store or a mall and expect somebody to look you in the eye ’cause they got their phone next to their ear. Or they’re looking at their phone and they’re texting. That’s happening everywhere. So it has some real serious consequences when they addict a public to this. And you and I know this probably, 9 million phones. Let me change it, 9 billion phones on this earth. Most people nowadays have two and three. And they discontinued using their land phone. So they’re using their cell phones at home. So this is a real problem. I hope that it gets the truth. I appreciate you asking me to be part of your webinar today. And I think it’s been somewhat informational. And I’ll be happy to talk to anybody later that wants to call and discuss it.
– Thank you so much, Hunter. And we will do everything we can to help you in the lawsuits. And we hope that finally one day we’ll have good news and we can start smiling after all this effort. Thanks so much, Hunter.
– God bless. Take care Dafna.
– Thank you. Bye bye.
Sign up for free news and updates from Robert F. Kennedy, Jr. and the Children’s Health Defense. CHD is implementing many strategies, including legal, in an effort to defend the health of our children and obtain justice for those already injured. Your support is essential to CHD’s successful mission.