Opposing Sides Debate Permitting Discovery in RF Radiation Case

Frank Walker's family should be permitted to do discovery in support of their allegations the cellphone industry “suppressed, misrepresented and concealed known health risks” under the guise that cellphones are safe, said their brief Friday (docket 2:21-cv-00923) in U.S. District Court for Western Louisiana in Lake Charles.

But federal courts have repeatedly said federal law “preempts claims challenging the safety of phones” certified by the FCC, and so their motion for leave to conduct discovery should be denied, countered defendants AT&T, CTIA, Microsoft and Motorola in their opposition brief.

The Walker family’s April 2021 complaint argues the cellphone industry quashed information showing many phones don’t comply with the FCC’s specific absorption rate (SAR) limitations for how much RF radiation is absorbed into the body, and that led to Walker’s death from brain cancer. Walker’s wife, April, and two sons, Stephen and James, are the plaintiffs in the case. U.S. District Judge James Cain ordered the parties in early November to file briefs on the Walkers’ request for discovery as they defend against the industry’s motion to dismiss on grounds that the case is preempted by federal law (see 2211040044).

The Walkers contend the industry's “self-certified model” creates the “rebuttable presumption” that phones do not exceed permissible RF emission levels, said the plaintiffs’ brief. Congress never intended to prohibit plaintiffs’ claims that Walker’s phones weren't compliant “and thus did not intend to preempt these injury claims by including a savings clause” in both the 1934 Federal Communication Act and the 1996 Telecommunications Act, it said.

The Walkers are “entitled to discovery,” said their brief. Though the courts are “generally mixed” on permitting a stay of discovery pending a “dispositive motion” to dismiss, “the majority lean toward disfavoring the issuance of a stay,” it said. “It is the general practice to deny an opposed motion to stay discovery pending resolution of a dispositive motion.”

When courts begin to disallow discovery in matters “wherein there has been no true discovery whatsoever, consumers will become unable to hold manufacturers accountable,” said the Walkers’ brief. Allowing discovery provides the “balance required” to hold the industry “accountable for harmful products,” it said. “For these reasons, discovery in this matter should be permitted.”

The Walkers’ claims are “narrowly tailored” to the congressional intent of the FCA and TCA and are “not subject to preemption” under the federal statutes, said their brief. Their complaint is “sufficient to withstand dismissal,” and discovery will bolster their “factual claims and claims against preemption,” it said.

There's no “express preemption in this matter,” said the Walkers’ brief. “The only question is whether there is implied preemption under the conflict doctrine,” it said. It's “undisputed” that health and safety are “traditional state police powers which create a presumption against preemption,” it said. “Starting with this presumption and looking at the entirety of both the FCA and TCA,” their claims aren't preempted, “particularly given the savings clause” under the statutes, it said.

But the defendants’ preemption motion “raises a pure legal question that requires no discovery,” said their opposition brief. The “thrust” of that motion is that “only the FCC may decide compliance as a matter of law,” it said. Discovery into whether defendants’ phones comply with FCC regulations “is irrelevant to the threshold legal question of who (the court or the FCC) decides compliance,” it said.

Denying the Walkers’ request for discovery “is consistent with the principles” the 5th U.S. Circuit Court of Appeals applies “when reviewing stays of discovery pending a motion to dismiss,” said the opposition brief. Nothing the plaintiffs could learn in discovery would affect the court’s resolution of the “purely legal issues involved” in the preemption motion, it said.

A ruling on the preemption motion itself “may resolve the case in its entirety,” it said. All other factors that courts in the 5th Circuit consider when reviewing discovery stays collectively “weigh in favor” of resolving the defendants’ preemption motion before conducting discovery, it said.

The Walkers’ assertion they need discovery to respond to the preemption motion is “without merit,” said the defendants’ opposition. The preemption motion concerns the legal question of whether the Walkers’ claims “threaten to frustrate the FCC’s federal policy objectives and authority” to regulate RF emissions from phones, it said. “Even accepting as true” the plaintiffs’ factual allegations that Frank Walker’s phones didn't comply with the FCC’s SAR standard, their claims “fail as a matter of law under well-established preemption principles,” it said.

The “speculative claims” that Walker’s phones exceeded the RF emissions threshold “are barred because the claims conflict with the FCC’s certification of the phones as compliant with its regulations,” said the opposition brief. Allowing juries to decide whether phones are compliant with the FCC’s regulations would undermine “uniformity” as an essential element of an efficient wireless network, it said. The Walkers’ claims fail “because the FCC itself has taken the longstanding, well-reasoned position” that claims like theirs “frustrate the agency’s objectives,” it said.