Expert witness ruling in District of Columbia cell phone litigation

“Can cell phones cause brain cancer?”  That is a fundamental issue in Murray v. Motorola, Case No. 2001 CA 008479 (Superior Court for the District of Columbia, Aug. 8, 2014), in which Judge Frederick H. Weisberg has issued a 76 page opinion, ruling on the defendants’ Dyas/Frye challenges to the admissibility of the plaintiffs’ expert witnesses.  Judge Weisberg, however, did not render an opinion on that causation issue.  Rather, his opinion focuses only on whether plaintiffs’ expert witnesses should be permitted to testify before the jury.

Under the Dyas/Frye test which is currently the law in the District of Columbia, the expert testimony is presumptively admissible if the subject is beyond the ken of an average layperson, the expert is qualified to offer an opinion on the subject, the expert uses a methodology that is generally applied in the relevant scientific community to arrive at his opinion, and the probative value of the expert’s testimony is not substantially outweighed by the risk of undue prejudice.

In December 2013 and January 2014, Judge Weisberg conducted an evidentiary hearing to determine the admissibility of plaintiffs’ experts, hearing four weeks of testimony from plaintiffs’ eight experts and defendants’ four rebuttal experts, receiving 280 exhibits containing thousands of pages of documents, and reviewed hundreds of pages of legal briefing.  At this stage of the litigation, the general causation question presented is whether the non-ionizing radiation from cell phones has a non-thermal effect that causes, promotes, or accelerates the growth of brain tumors, specifically gliomas and acoustic neuromas.

The opinion contains an in-depth discussion of the Dyas/Frye standard, which practitioners will find useful. 

Further, Judge Weisberg included a four page discussion of the differences between the Dyas/Frye standard adopted by the D.C. Court of Appeals, and the federal Daubert standard governing the admissibility of expert testimony.  The Court noted that “the scientific dispute in this case illustrates that the choice of one approach over the other can be outcome determinative.”  This discussion may ultimately set the stage for the D.C. Court of Appeals to undertake an en banc review of whether to adopt the Daubert standard.

Out of the eight experts for the Plaintiffs, the Court excluded the testimony of three completely:  Dr. Shira Kramer; Dr. Guatam Khurana; and Dr. Dimitris Panagopoulos.  The Court further ruled that the testimony of three of the Plaintiffs’ experts on general causation is not excluded:  Dr. Michael Kundi; Dr. Wilhelm Mosgoeller; and Dr. Abraham Liboff.  Finally, the remaining two Plaintiffs’ experts were only excluded in part:  Dr. Igor Belyaev; and Dr. Laura Plunkett.  Thus, the Plaintiffs’ case has apparently survived a knockout punch in this round of litigation, and the parties will now move on to conduct broader discovery on the general causation issue before proceeding to specific causation.

Judge Weisberg’s opinion makes it clear that, based on the present record, he thinks that the scientific evidence on the general causation question is too unsettled for any scientist to say, to a reasonable degree of scientific certainty, that cell phones cause brain cancer.  On the other hand, Judge Weisberg’s opinion also calls for more research and cautions that, “If there is even a reasonable possibility that cell phone radiation is carcinogenic, the time for action in the public health and regulatory sectors is upon us.  Even though the financial and social cost of restricting such devices would be significant, those costs pale in comparison to the cost in human lives from doing nothing, only to discovery thirty or forty years from now that the early signs were pointing in the right direction.”