UK: Mobile ‘phone litigation – don’t hang up just yet …

Vodafone, the world’s biggest mobile telephone operator, is being sued in the US for allegedly causing brain cancer to users of its mobile telephone network. In July this year, for the first time, Vodafone formally disclosed to its shareholders in its annual report the existence of the early stage litigation against it, adding:

"The company is not aware that the health risks alleged in such personal injury claims have been substantiated and will be vigorously defending such claims".

If upheld, the potential exposures to these claims are thought to run into US $ Bns. Vodafone is no stranger to such claims. Class actions in the US were filed in 2001 against a company in which Vodafone owns a 45% stake. However, this time though, Vodafone is actually named as one of a group of five defendants, which consist of mobile telephone operators, equipment suppliers and handset manufacturers. Each of the 4 claimants seeks US $1M in punitive damages, as well as compensatory and other awards.

The latest action in which Vodafone is named comes after almost a decade of lawsuits against the mobile telephone industry of allegations of links to brain cancer, in which mobile telephone carriers and equipment manufacturers have yet to lose a case. However, neurologist Chris Newman, who is suffering from a brain tumour, now claims there is evidence of sufficient quality to show a causal link between mobile telephones and his condition. Attorney, Peter Angelos, who made his name by successfully pursuing product liability litigation against the tobacco industry, represents him.

A preliminary evidential hearing held in March in the US District Court of Baltimore, marked the first time a US court had analysed whether the accumulated scientific evidence was rigorous enough to be considered at trial and, if so, to determine which of it, if any, should be allowed at any subsequent trial. Judge Blake was persuaded by Angelos to allow the lawsuit, totalling US $800 M, to proceed to trial, the outcome of which will be eagerly anticipated by the mobile communications industry on both sides of the Atlantic.

Despite the assurances contained in its annual report, the share price of Vodafone, which has become a leading global player in mobile telephones after acquiring a string of rival operators, was hit by new research published in June suggesting that radio frequency (RF) fields generated by mobile telephones could harm the brain. Although one expert involved in the litigation is quoted as saying, "It is as much a legal question as it is a scientific question", clearly the science will play a big part in the outcome.

To date, the most comprehensive British study, led by Sir William Stewart and published in 2001, concluded there was no evidence of a risk to health from mobile telephone use and was unable to find any link to increased risk of brain cancer. However, it also recommended more investigation was needed and consequently in January 2002 a new £7.4 M research programme was announced, backed by the Government and the mobile telephone industry. Further, the WHO is also looking at the possible effects on health of mobile telephones; of which it projects there will be 1.6 Bn worldwide users by 2005. The WHO notes "None of the recent reviews have concluded that exposure to RF fields from mobile telephones or their base stations causes any adverse health consequences."

Less comforting to mobile telephone network operators and manufacturers are the conclusions of the latest study to be published, a 2-year investigation conducted in Finland, home of the mobile telephone giant Nokia. It suggests that RF fields from mobile telephone handsets may affect the underlying physiology of the brain as cells taken from human blood vessels and grown in the laboratory behave abnormally when subjected to RF emissions. The effects remain even when RF levels are below the guidelines laid down by the European Commission (set using "dummy heads" to measure absorption). In particular, effects were seen in endothelial cells, which form the crucial "blood-brain barrier", which has evolved to shield the brain from potentially harmful substances. The Finnish study identified RF-induced changes in about 400 proteins inside these cells. One is a so-called "stress protein", namely HSB27, which is known to be involved in regulating blood-brain barrier permeability. Critics of the study maintain that the findings are not strong enough to cast serious doubt on the safety of mobile telephones. They say the study may have identified an in vitro physiological change, but provides no evidence of adverse health effects caused by it.

While the outcome of the US litigation is keenly anticipated, at least one US law firm has said it is considering filing in the federal court in Washington a "public interest lawsuit", the aim of which would be to attempt to force the US Government to regulate the mobile telephone industry.