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Burden of Proof

How Safe is That Cell Phone in Your Ear? Maryland Doctor Files $800M Lawsuit Against Motorola and Verizon

Aired August 7, 2000 - 12:30 p.m. ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

GRETA VAN SUSTEREN, CO-HOST: Today on BURDEN OF PROOF: How safe is that cell phone in your ear? A Maryland doctor has filed an $800 million lawsuit against a cell phone maker and telecommunications company, claiming it caused his brain cancer.

ANNOUNCER: This is BURDEN OF PROOF with Greta Van Susteren and Roger Cossack.

VAN SUSTEREN: Hello, and welcome to BURDEN OF PROOF.

Two years ago, a malignant tumor was discovered behind Chris Newman's right ear. Newman, a neurologist, used a cell phone extensively between 1992 and 1998 to communicate with his patients.

ROGER COSSACK, CO-HOST: According to his lawsuit, that practice has caused his cancer. The case, filed last week in Baltimore's city circuit court, names Motorola, Incorporated, and Verizon Communications as defendants in an $800 million lawsuit.

VAN SUSTEREN: Joining us today from New York is Louis Slesin, who is the editor of "Microwave News." And in Milwaukee, we're joined by radiation biologist John Moulder.

COSSACK: And here in Washington, Lindsay Pennington (ph), Chris Newman's attorney, Joanne Suder, and Laura Israel (ph). And in the back, Nadim Aqbar (ph) and Ginny Wilmuth (ph).

Joanne, I want to start right off with you. You have filed this lawsuit. What is the basis of this lawsuit? Why do you believe that using cell phones has caused Chris Newman's cancer?

JOANNE SUDER, ATTORNEY FOR CHRIS NEWMAN: Well, first of all, there's absolutely no doubt in this case that his cancerous tumor was directly related to his cell phone use. It is anatomically located in the exact location in his brain where the radiation waves would enter his brain. And unbeknownst to him, throughout the years that he was using the phone, there was evidence that was available to the defendants that indicated several things. Number one, that radio frequent radiation is a danger when put through the skull of a human being. Number two, when you have that phenomenon -- I don't know if you use a cell phone -- where you're losing power and then you're regaining power and you're losing power -- it's during that period of time that the power stations are surging three and four times as much power into your brain in order to help that phone recover and bring back your ability to communicate.

VAN SUSTEREN: Joanne, you speak like a true advocate, a lawyer, say there is no doubt. But of course, the other side of the statement is what -- the other side of the story is what Motorola says. And we called and asked them for a statement, and just so that we have both sides presented. They declined to accept -- you know, to join us today.

Here's what Motorola says. "No one should have to endure the misfortune that has befallen Dr. Newman and his family. While their desire to identify a cause of his condition is understandable, there is no accepted scientific basis to equate it to the use of wireless telephones."

Is the sort of thrust of your lawsuit the fact that it's the location of the original tumor, of the cancer -- is that the -- is that your strongest argument?

SUDER: In this particular case, not only do the -- does the scientific evidence support this causation, but Dr. Newman's own physicians claim that the etiology of his tumor is the RFRs that penetrated his brain. And no matter what the industry might say, or that they might say that their telecommunications engineers say, oncology and brain tumors is the physician of -- it's the science of medicine. It's not the science of telecommunications.

COSSACK: Joanne, let me just give you a couple of -- 6 people out of 100,000 get brain cancer. Now, why is it that not everyone who uses cell phones get brain cancer, and not everybody who gets brain cancer has used a cell phone? So why is it that your -- your client -- I mean, what -- what can you point to that says that because of his use of the cell phone, he got brain cancer, other than the fact that the tumor is on that side of the head? I mean, it has to be on one or the other. It's on that side. I mean, what else do you got?

SUDER: Let me explain one thing. Most adult brain cancers in this country are metastatic sites from other primary cancers, not original sites. This is an original situs cancer. The vast majority, someone has had cancer perhaps...

COSSACK: Yeah, but that's why there's only 6 out of every 100,000 that get brain cancer.

SUDER: Well, the other thing you need to realize is that the gestation period for a brain tumor can be 10 years, and we don't have 10 years of data on the -- since the cell phone has become...

COSSACK: Yeah. I think that's what's going to be your problem in this case.

SUDER: ... at high level.

SUDER: Let me -- before -- before -- we're going to talk to two experts in a moment, but let me just ask you something about -- tell me a little bit about your client. SUDER: My client is 41. He has five children. He's married. He was an honors graduate from Georgetown Medical School, did his residency here in D.C., was a practicing neurologist, had to use his cell phone a lot, including that original big brick Motorola phone. He traveled between three hospitals, was in private practice, so he had to be in continuous contact with his patients. And often -- his misfortune is often he used cell phones, where he would lose frequency and experience numerous times the phenomena of the power having to recover. And as it recovers, the -- Motorola's own data will -- proves that at that time that it's recovering, it's certainly radiating an excess or a large amount of power into the head.

VAN SUSTEREN: And we're going to take a break, and we're going to talk about it with two experts when we come back.

Up next: a closer look at the health risks associated with cell phones and why the experts disagree. Stay with us.

(BEGIN LEGAL BRIEF)

In Berlin, Prince Ernst August of Hanover, the husband of Princess Caroline of Monaco, has lost an appeal for the return of land expropriated by Soviet occupiers after World War II. The case of the land, which consisted of 40 square miles and several castles, hinged on whether the prince's grandfather was a German or British citizen at the time the land was seized.

(END LEGAL BRIEF)

(COMMERCIAL BREAK)

COSSACK: Good news for our Internet-savvy viewers. You can now watch BURDEN OF PROOF live on the World Wide Web. Just log onto cnn.com/burden. We now provide a live video feed Monday through Friday at 12:30 PM Eastern time. And if you miss that live show, the program is available on the site at any time via video on demand. You can also interact with our show and even join our chat room.

VAN SUSTEREN: A Maryland doctor is suing Motorola and Verizon Communications, claiming that using his cell phone caused his brain cancer.

The Food and Drug Administration says there's no evidence that the radiation from cell phones causes health problems, but the FDA has stopped short of affirming the phones are free of health risks.

John, let me go to you. You've heard Joanne talk about Dr. Newman's lawsuit. What is your reaction to the allegation that the cell phone caused this cancer?

JOHN MOULDER, PROFESSOR OF RADIATION BIOLOGY: Well, I don't want to comment on a specific law case, but on the general issue of whether cell phones cause brain cancer, the evidence to date -- both the human evidence and the animal evidence -- does not point to a link between cell phones and brain cancer.

VAN SUSTEREN: Have you done studies on this yourself?

MOULDER: My interest is risk assessment, looking at what everyone has done, from humans to cells to animals to biophysics, and ask "Is there evidence that, in this case, radio frequency radiation is connected with brain cancer?" And also "How hard have people looked?"

VAN SUSTEREN: What do you make of this sort of weird coincidence -- at least, that's how I'd characterize it as a lay person -- that phone -- that there's the original site of the cancer and the cell phone? What does -- what do you make of that?

MOULDER: It may very well be a coincidence. And by the way, to correct one piece of data, the primary brain cancer incidence in this country is 6 per 100,000 per year, not per person. But brain cancer, primary brain cancer, has to be somewhere. The fact that it was on the side where the phone was used could very well be a coincidence.

COSSACK: Louis Slesin, you have done some studies, and as editor of "Microwave," you've been participated. Tell me what -- what you believe, in terms of whether or not cell phones could possibly be the cause of this brain cancer.

LOUIS SLESIN, "MICROWAVE NEWS": Well, the short answer is that we don't know yet. There's been very, very little research. Dr. Moulder just said, you know, "How much do we know? How many studies have we done?" And the answer is not enough. There is an international consensus now that we need to do more research. We need to get to the bottom of this problem.

VAN SUSTEREN: Louis, isn't it -- isn't it believed, in fact, that the amount of radiation that emits from a cell phone is just not enough to cause this kind of result?

MOULDER: I don't think there is a consensus on that at all. The thing to remember is that you're putting the antenna very close to your brain, and about 50 to 70 percent of all the radiation coming off that phone is going into the human body of the user. So the question is, what does it do there? And up to recently, people might have said, "Well, it's benign," but more and more of the studies that have been done show that there are biological effects.

Now, whether or not there is a hazard is the next step, and that's where we have to go and look.

VAN SUSTEREN: John, you said that there's -- the studies -- at least, if I correctly repeat what you said -- don't show that the -- that they are dangerous. But do the studies show conclusively that they are safe? Can you rule out that the cell phone was the cause of the brain cancer for Dr. Newman or someone similarly situated?

MOULDER: Unfortunately, that's something we can never rule out. Science is incapable of proving that something does not cause cancer.

VAN SUSTEREN: Do you use a cell phone?

MOULDER: I use one. I don't own one, but I happily use other people's.

(LAUGHTER)

COSSACK: During these -- during these tests and these -- that we've discussed, how much -- how -- how -- what is the testing period in terms of the use of a cell phone? For example, suppose I was going to use a cell phone a total of an hour a day. Does that put me at risk, or do I need to use it six hours a day or four hours a day?

MOULDER: The truth is, if there's a -- if there really is a risk, I don't think anyone can predict what it's proportional to. But the other things we know that cause solid cancers take a very long time to do it. So if I had to make a wild guess, it would be your long-term use of a phone over many, many years that would matter, if anything does.

VAN SUSTEREN: Louis, as the editor of "Microwave News," are you in a position to tell me whether or not that the cell phone industry has been fully cooperative in terms of supplying data? And I know that Joanne will have discovery, so she'll be able to get any data by a court order. But have they been forthright in terms of providing data on cell phone safety, do you think?

SLESIN: In 1993, when this whole issue exploded on the front page of the newspapers, the industry made a commitment to do $25 million worth of studies over the next five years to try and answer the question of cell phones and brain cancer risks. Unfortunately, very, very little research has been done, and I think that the industry did break faith with the American public in terms of doing that research. We in the press have asked repeatedly, "What happened to the money?" and no one wants to tell us. But I can tell you very little of it went to real research.

VAN SUSTEREN: Joanne, I've looked at your lawsuit, and one of the things that you, in essence, accuse them of -- the cell phone industry, specifically, the defendants here, is of not being candid with your client. Do you have any information to back that up?

SUDER: Well, I can tell you that I agree that the industry let the public down, and certainly did not follow up on evidence. Their own study indicated a link between brain cancer and cellular phone use -- their own study.

COSSACK: What study -- what study is that?

SUDER: It was the study -- their $25 million study.

VAN SUSTEREN: Is that -- do you agree with that, Louis?

SLESIN: Well, there's some controversy over that. The study has not been published yet. The researcher is very equivocal about it, but Dr. George Calder (ph), who paid for the study, says that he found a link between excess use of cell phones and certain kinds of brain tumors. But until the study is published, it's very hard to draw any real conclusions.

COSSACK: Why hasn't the study been published?

SLESIN: Good question. It takes time for peer review, and I think that some of this stuff was released a bit early, before it had been peer-reviewed. And we're waiting for the journals to catch up.

COSSACK: All right, let's take a break.

Up next: If health experts can't agree on whether cell phones cause a health risk, how can plaintiffs' lawyers prove their case?

Stay with us.

(BEGIN Q&A)

Q: Why are a retired pro baseball umpire and a Canadian architect suing Walt Disney Co.?

A: They claim the company's sports complex is identical to plans they proposed to Disney officials in 1987.

(END Q&A)

(COMMERCIAL BREAK)

COSSACK: More than 90 million Americans use cell phones, but a debate continues in the medical community about potential health risks. This summer, the FDA announced plans to team up with the cell phone industry to study the issue.

Joanne, as a lawyer, you know you're going to have to -- if you're going to convince this jury, you're going to have to convince them that the cause of your client's cancer came directly from -- and no other source other than his use of a cell phone. We've heard -- we've heard today about how there doesn't seem to be, at least right now, much evidence to indicate that. How are you going to do it?

SUDER: It is -- nobody out there with any credibility is going to testify under oath that the power stations, when the phones lose power, emit a huge amount of radiation into the head, which is...

COSSACK: And I'm going to give you that.

SUDER: ... disallowed by the government.

COSSACK: And I'm going to give you that. Now take that statement and have it in evidence, and now tell me how you prove that that effect caused your client's brain cancer.

SUDER: There are many studies who have linked the two. It is the type of brain cancer, the anatomical location. It is what the oncologists say and what his physicians say. The etiology of cancer is a matter for medicine, not telecommunications engineers.

VAN SUSTEREN: Let me cut to the chase. Do you have a doctor who's going to come in and take an oath and say, "This phone caused this cancer in this man"? COSSACK: "And if he didn't use it, he wouldn't have had brain cancer."

SUDER: There is no question that we will present evidence from qualified physicians that had he never used the cell phone in the manner that he did, and losing frequencies the way he did, that that particular cancerous tumor would not have happened.

VAN SUSTEREN: John, is there a difference in terms of safety on these cell phones between different models? And are signal strengths, as Joanne talked about -- is that an important issue?

MOULDER: Well, first of all, I don't think it's a matter of safety because I don't think there's any evidence that any of the phones are hazardous. But the amount of radio frequency radiation that different phones produce is quite different. The way you hold the phone can affect the exposure to your head. And as alluded to by the lawyer, the signal strength you have, whether you -- if you're in a place with a good signal, your phone emits less RF radiation than if you're in a place with a bad signal.

VAN SUSTEREN: What about the digital versus analog telephones? Does that make a difference?

MOULDER: Certainly, the older analog phones, which in this case means from four or five years ago, were considerably more powerful than the modern digital phones. I'm not sure about the modern analog phones or the dual-mode phones that can do either one.

COSSACK: Joanne, I want to go back again. You said that you will have -- you will be able to present evidence from physicians who will come into your case and say but for your client's use of that telephone, he would have never had brain cancer?

SUDER: Yes. Clearly. And...

COSSACK: And what are they going to base that on? We have two experts who say there's absolutely no evidence to indicate that there...

VAN SUSTEREN: Well, I don't think they said there's no evidence. I think that they said it's a little bit inconclusive, if I -- you know...

COSSACK: Let me -- let me...

(CROSSTALK)

COSSACK: Let me give you inconclusive. I'll take inconclusive. Where are you going to find someone who's going to say "This caused that"?

SUDER: Well, you have to -- well, let me give you a "for instance."

COSSACK: All right. SUDER: Here we were, 20 years ago. The cigarette manufacturers were saying "There's no evidence that smoking causes cancer. There's absolutely no evidence. It's possible. It might happen. The studies haven't been done. So there's no evidence it's a hazard."

COSSACK: Right.

SUDER: And when someone says there's -- there's no evidence or "We haven't found the evidence," or what they're saying is "We need to do more studies," I -- I'm saying that when you have an industry who should have been accountable to the public, should have done the industries (ph), talked the FDA out of regulating this, which the FDA should have all along, which would have included reporting of all adverse health effects -- when you say it's inconclusive, as a citizen, that's not comforting to me to know that 90 million people are emitting radiation into their head, and studies are inconclusive. "It could happen."

VAN SUSTEREN: Well, let me -- let me just -- let me, before we lose -- before the show ends, let me get back to Louis. Louis, obviously -- I mean, I assume that this is a lawsuit that has sent shivers into the spines of people who own cell phones. What's been the reaction in the industry to a lawsuit like this?

SLESIN: Well, certainly, it has been noticed greatly,and it takes us back to '93, when the industry was terrified as the first round of lawsuits. This is the next generation, and there's more data. And despite what Dr. Moulder says, we're not talking about proving -- the impossibility of proving the negative. There's a lot of data out there suggestive of a problem. What a jury might do with that evidence is anyone's guess, at this point.

VAN SUSTEREN: And that's why this is in court.

But that's all the time we have for today. Thanks to our guests, and thank you for watching.

Today on "TALKBACK LIVE," weigh in on the presidential campaign. Will Senator Joe Lieberman help or hurt the Gore ticket? That's at 3:00 p.m. Eastern time, noon Pacific.

COSSACK: And we'll be back tomorrow with another edition of BURDEN OF PROOF. We'll see you then.

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