Federal Preemption of La. RF Radiation Claims ‘Does Not Apply,’ Say Walkers

Congress never intended to prohibit state actions “for injuries resulting from cell phone use” when it enacted the Communications Act and the Telecommunications Act, said Frank Walker's family survivors, in an opposition Tuesday (docket 2:21-cv-00923) in U.S. District Court for Western Louisiana in Lake Charles. Industry filed a motion in October to dismiss their complaint on grounds that their claims are preempted by federal law (see 2210180078).

The court should deny the defendants’ motion to dismiss and allow the Walkers’ case “to move forward,” said their opposition. The industry’s own researchers have found handset RF radiation emissions exceed the FCC’s specific absorption rate (SAR) standard, but the industry “suppressed, misrepresented, and concealed known health risks.” The defendants are AT&T, CTIA, Microsoft, Motorola, the Telecommunications Industry Association and ZTE.

The plaintiffs, Walker’s wife and two sons, allege in their April 2021 complaint that the industry covered up information showing many cellphones don’t comply with the FCC’s SAR limitations for how much RF radiation is absorbed into the human body. This, they allege, led to Walker’s death from brain cancer. After the court’s Jan. 23 denial of the Walkers’ motion for leave to do discovery in support of their allegations (see 2301230064), fending off the case’s dismissal might be their final chance to assert their claims at the district court level.

The Walkers’ allegations “push the analysis required” by the motion to dismiss before the court “beyond the federal statutes,” the FCC’s regulations and the result that the defendants’ seek, said the Walkers’ opposition. The plaintiffs’ “material allegations require a decision” in line with congressional intentions, it said: “Preemption does not apply.”

The plaintiffs don’t challenge the FCC's guidelines or the SAR standard, nor do they challenge the agency’s published testing methods, said their opposition. They instead contend Walker’s cellphones “functioned outside” the SAR standard “and thus failed to comply with the requirements established by the FCC,” it said.

Walker’s handsets emitted “a prohibited level of RF radiation, leading to the development of cancer and, ultimately, his death,” said the opposition. Though “sample units” of the cellphone models that Walker used “may have been certified” as safe, whether his “actual phones” complied with the FCC standard “is a factual issue creating a rebuttable presumption that each of his cell phones did not exceed the allowable RF emission levels,” it said.

'Material' Allegations 'in Dispute'

The Walkers’ claims aren't preempted since Congress hasn’t clearly expressed an intent “to allow the FCC to issue regulations usurping state product liability and consumer protection laws,” said their opposition. The motion to dismiss “should be converted to a motion for summary judgment and denied,” it said. “This litigation is not ripe for such a determination and material factual allegations are in dispute.”

The family’s claims “succeed under general principles” of federal preemption, said the opposition. If a state law is in conflict with a federal law, “the state law is without effect,” it said. “Given the historic importance of states’ police powers,” exercising powers on public health and safety aren’t preempted by federal law unless congressional intent to do so is clearly expressed, it said.

A federal statute may preempt a conflicting state law when compliance with both is a “physical impossibility,” or the challenged state law stands as an obstacle to the “full purposes and objectives of Congress,” said the opposition. Conflict is the basis on which the defendants contend the Walkers’ state claims should be dismissed, it said. “The argument is misplaced.”

Congressional intent is the “ultimate touchstone” in determining preemption, said the opposition. It cited the Supreme Court's 2009 decision in Wyeth v. Levine, saying federal regulatory approval of a medication doesn’t shield the manufacturer from liability under state law. “Statutory construction requires focusing on the plain wording of the statutory language for the best evidence” of congressional intent, it said.

Though federal agencies are permitted to issue regulations preempting state law, “the agency must be acting within, not exceeding, its statutory authority and it must not be acting arbitrarily,” said the opposition. Courts have said if the congressional intent is to preempt state law in such a way as to upset the usual constitutional balance between the states and federal government, then congressional intent to do so must be “unmistakably clear in the language of the statute,” it said. Its citation was to the 1991 SCOTUS decision in Gregory v. Ashcroft, saying a provision in the Missouri state constitution requiring state judges to retire at the age of 70 didn’t violate federal statute or the equal protection clause of the 14th Amendment. “A proper preemption analysis” confirms that the Walkers’ claims should be allowed, said the opposition.

Preemption Authority Not 'Boundless'

The FCC’s ability under the FCA to preempt state law isn’t “boundless,” said the Walkers’ opposition. To preempt state law, the commission needs to “have been granted complete regulatory jurisdiction over the area,” it said. Though the FCC is allowed regulatory authority, it “must comply with provisions expressly preserving state laws in a given area,” it said.

The commission’s preemption authority is also limited by the “clear statement” rule under federalism principles, said the opposition. The FCC may not preempt state law upsetting the usual constitutional balance between the states and the federal government “unless Congress clearly expressed authorizing preemption” it said. The FCA “contains express provisions” preserving states’ rights. When Congress enacted the TCA, it “reaffirmed” the preservation of states’ rights by maintaining the “savings clause” of the FCA, “and by expressly disclaiming any implied preemption of state or local law” through a new “no implied effect” provision, it said.

The intention to preempt state law “may be explicitly expressed in the statute or implied,” said the opposition. In the Walkers’ case, neither statute “expressly preempts” their claims, it said. The defendants don’t argue that their claims are expressly preempted, and 3rd and 4th Circuit case law holds that express preemption “does not apply here,” it said.

Not only did Congress intend no express preemption, “but neither did Congress intend to impliedly preempt these claims,” said the opposition: “Here, a presumption against preemption prevails since state tort law is a longstanding tradition of ensuring product safety by compensating citizens injured by defective products.”

It can’t be said that Congress “implemented a pervasive scheme” when it never created a means by which individuals, such as the Walkers, “may bring and be compensated for traditional state tort claims,” said the opposition. “Congress included no federal remedy for consumers harmed by unsafe/non-compliant cell phones” when it drafted the FCA and TCA, it said: “As such, it cannot be said that Congress intended the FCC to exclusively occupy this field.”