The Cancer Scare Strikes Again: Cell Phone Radiation and the Ensuing Threat of Litigation

The International Agency for Research on Cancer (IARC), a branch of the World Health Organization (WHO), announced on Tuesday, May 31 some concerning findings. Cell phone usage, the radiation of which has now been classified as a carcinogen, may cause some forms of brain cancer. The study suggests that mobile devices, now finding itself in the same category as engine exhaust and chloroform, have been linked to a malignant form of brain cancer known as glioma. This conclusion was not based on any new scientific research but was instead, the result of an extensive review of numerous past studies. Namely, the decade-long Interphone research study that showed a 40% increase in risk for glioma for people who used their cellphones for an average of 30 minutes per day over a 10 year period.

So what are the legal ramifications of such findings? To get the manufacturers and service providers on the hook, the IARC’s re-classification of cell phone radiofrequency emissions will need to be enough to support a cancer or fear of cancer claim; an unlikely occurrence. The precedent setting case of Ferrara v. Gallagher decided in 1958 in New York provides insight to a “fear of cancer” claim. The Plaintiff suffered from bursitis in her right shoulder following a series of negligently administered X-ray treatments. Approximately two years after receiving the treatments that left her with some scarring and discoloration in skin pigmentation, she visited a dermatologist who informed her that she should have her shoulder checked every six months, as the area may become cancerous. The Court ultimately awarded her a judgment of $25,000 for “mental suffering” based largely on the testimony of a neuro-psychiatrist indicating that the Plaintiff was suffering from a severe cancerophobia, that is, the phobic apprehension that she would ultimately develop cancer in the site of the radiation burn.

However, since then, the court has supplemented this mental suffering with the requirement of physical proof evidencing the toxin or its effects on one’s body. Thus, plaintiffs will have to do more than simply present their existence of glioma and cite to the IARC’s re-classification of the mobile device radiofrequency emissions as a carcinogen. They will have to show the link between the two, and specifically, that the emissions were the cause of the manifestation in the brain which led to cancer; a complex and exceptionally high burden. Although the providers of 6 billion cell phone users globally will sleep easier knowing this, the public is left more than a little uneasy and uncertain about the veritable dangers of this new information and its related hurdles in the justice system.

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