Upper Level Writing Paper

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Looking Back to Move Forward in Cell Phone Litigation: Agent Orange and Bendectin Still
Have a Grasp on Today’s Toxic Tort Litigation
By: Jacob Born
I. Introduction
Recently, Time magazine published an article titled “Cell-Phone Safety. Your mobile
emits a tiny amount of radiation. Is that safe in the long run?”1 The article is a brief and
informative summary of current research and the recent developments of public anxiety
pertaining to the long term effects of cell phone radiation on the human body.2 Although Time’s
article is directed towards American consumers, the piece accurately identifies the opponents and
sets the stage of turmoil that is representative of the battle that is currently playing out in cell
phone litigation within our judiciary system.3 On one side, you have the cell phone industry
claiming that cell phone radiation has yet to be proven harmful.4 On the other side, there are cell
phone users who have been diagnosed with life threatening conditions and who blame cell phone
radiation,5 which consequently leaves other consumers worried about the long term effects of the
technology.6
As Time’s article mentions, brain tumors and cancer are the most prominent long term
public health care concerns related to cell phone radiation.7 Currently, no clear or uncontested
1 Bryan Walsh, Cell Phone Safety. Your mobile emits a tiny amount of radiation.Is that safe in the long run?, TIME,
March 15, 2010, at 47.
2 Id. at 48.
3 Id.
4 Id.
5 Id.
6 E.g. Id.
7 Id.

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scientific conclusions have been made linking long term cell phone use and brain tumors, but
medical authorities recommend that Americans should avoid unnecessary risks.8 Governmental
studies, conducted in conjunction with the cell phone industry, claim that cell phone radiation is
safe.9 However, scientific and legal scholars question the studies’ results and conclusions
because the conclusions could be biased and self serving.10 Time’s conclusion of its article
leaves us, as American consumers, squarely with the issue that the judiciary faces in cell phone
litigation: Is there a causal link between long term cell phone use and cancer?11
Between 1989 and 1992, Susan Reynard, Richard Ward, and Christopher Newman were
all diagnosed with brain tumors.12 All three were cell phone users.13 Further, all three of their
brain tumors were located near areas of the head relatively close to where most Americans hold a
cell phone when they make a call.14 The similarities between the three cases are astounding, and
beyond mere coincidence.15 After diagnosis, Susan Reynard, Richard Ward, and Christopher
Newman all turned to the judicial system alleging that cell phone radiation caused the
development and acceleration of their brain tumors.16 Reynard’s and Ward’s cases were
dismissed at summary judgment,17 and Newman’s case failed after the court granted the
8 Id.
9 Federal Communications Commission, Radio Frequency Safety, http://www.fcc.gov/oet/rfsafety/rf-faqs.html (last
visited Apr. 19, 2010).
10 Laura Grasso, CellularTelephonesand the Potential Hazards for RF Radiation:Responses to the Fear and
Controversy, 3 VA. J.L. & TECH. 2, 12-28 (1998) discussing the FCC, FDA, and Industry Responses to research.
11 Walsh, supra note 1, at 48.
12 Reynard v. NEC Corp., 887 F.Supp. 1500, 1502 (M.D. Fla. 1995); Newman v. Motorola, Inc., 218 F.Supp.2d 769,
772 (D. Md. 2002); Motorola v.Ward, 478 S.E.2d 465, 466 (Ga.Ct. App. 1997).
13 Reynard,887 F.Supp. at 1502; Newman, 218 F.Supp.2d. at 772; Ward, 478 S.E.2d at 466.
14 887 F.Supp. at 1502-03; 218 F.Supp.2d. at 772; 478 S.E.2d at 466.
15 See generally 887 F.Supp. at 1502; 218 F.Supp.2d. at 772; 478 S.E.2d at 466.
16 887 F.Supp. at 1502; 218 F.Supp.2d. at 772; 478 S.E.2d at 466.
17 887 F.Supp. at 1501; 478 S.E.2d at 466.

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defendant’s motion to exclude the plaintiff’s causation expert.18 Reynard, Ward, and Newman’s
cases were all dismissed because of a lack of admissible causation evidence.19
During the development of cell phone litigation, plaintiffs have met a multitude of
barriers during litigation that have prevented their cases from proceeding to trial.20 Numerous
causes of action have been filed based on the harmful effects of cell phone radiation. 21 However,
only Reynard, Ward, and Newman have reached the causation stage of cell phone litigation.22
Once a cell phone plaintiff’s case reaches the causation portion of litigation, the development of
causation and evidentiary standards have proven to be substantial, and thus far insurmountable,
barriers that have prevented plaintiffs from reaching trial.23
This paper addresses the causation and evidentiary issues that have precluded plaintiffs
from trial in cell phone litigation. Part II of this paper addresses the current scientific background
and causation issues surrounding cell phone litigation. Part III addresses the evidentiary
background and current trends preventing plaintiffs from trial. Part IV argues that independent
research is the most pressing need in cell phone litigation. Part IV also suggests that judicial
18 218 F.Supp.2d. at 783.
19 887 F.Supp. at 1502; 218 F.Supp.2d. at 772; 478 S.E.2d at 466.
20 See generally Pinney v. Nokia, Inc., 402 F.3d 430,430 (4th Cir. 2005). The class plaintiffs in Pinney overcame
preemption issues,but failed on removal. See generally Schiffner v. Motorola, Inc., 672 N.E.2d 868, 874 (Ill. App.
Ct. 1998); Verb v. Motorola, Inc., 672 N.E.2d 1287, 1243 (Ill. App. Ct. 1996). The Federal Electronic Product
Control Act preempted the plaintiffs’ state consumer fraud actions in Schiffner and Verb. See generally Newman v.
Motorola, Inc., F.Supp.2d 717, 719 (D. Md. 2000). The plaintiff in Newman named numerous defendants,however
the district court stated that the Maryland’s long-arm statute did not sufficiently reach the parent holding companies
for personaljurisdiction. See generally Wolf, infra note 53 at 289, 278. Scholarly commentary identifies that
plaintiffs in cell phone litigation have confronted jurisdictional issues and naming the proper defendants.
21 See generally Pinney, 402 F.3d at 430 (4th Cir. 2005); Reynard v. NEC Corp., 887 F.Supp. 1500, 1502 (M.D. Fla.
1995); Newman v. Motorola, Inc., 218 F.Supp.2d 769, 772 (D. Md. 2002); Motorola Inc. v. Ward, 478 S.E.2d 465,
465 (Ga. Ct. App. 1997); Schiffner, 672 N.E.2d at 874; Verb, 672 N.E.2d at 1243; Indiana Michigan Power Co. v.
Runge, 717 N.E.2d 216 (Ind. Ct. App. 1999).
22 Reynard, 887 F.Supp. at 1508; Newman v. Motorola, Inc., 218 F.Supp.2d 769, 783 (D. Md. 2002); Ward, 478
S.E.2d at 466. The plaintiffs in Reynard, Newman, and Ward have all failed to establish causation during summary
judgment or in pretrial motions.
23 See 887 F.Supp. at 1500; 218 F.Supp.2d at 769; 478 S.E.2d at 465.

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reform in cell phone litigation is warranted by examining the Agent Orange and Bendectin
litigations. Part V concludes that independent research will be the most beneficial to cell phone
plaintiffs, but until adequate research is produced judicial reform is proper.
II. Causation in Cell Phone Litigation
This portion of the paper discusses the current scientific background surrounding cell
phone radiation and the development of brain tumors. Part A discusses the how cell phones
operate, cell phone radiation, and cell phone saturation in the American population. Part B
discusses the legal causation theories and burdens currently imposed upon parties in toxic tort
cases and evidentiary tools that are commonly used to prove causation. Part C discusses the most
recent epidemiological studies relevant to causation in cell phone litigation.
A. How Cell Phones Function and Cell Phone Saturation in the American Population
Cell phones are wireless handheld telephones that function by emitting a form of
radiation called radio frequency radiation.24 Radio frequency radiation, or RFR, is a type of
electromagnetic radiation that can be found in two forms, (1) non-ionizing radiation or (2)
ionizing radiation. 25 Microwaves, radios, and cell phones use non-ionizing radio frequency
radiation.26 By comparison, gamma rays, X-rays, and other types of nuclear radiation are forms
of ionizing radiation.27 The difference between ionizing and non-ionizing radiation is that
ionizing radiation can cause thermal damage to atomic matter by dislodging electrons from the
atoms.28 Generally, non-ionizing radio frequency radiation is claimed to be harmless to humans.
24 218 F.Supp. at 773.
25 Grasso, supra note 10 at 6.
26 Dr. Sachdev A. Kohli, Cell Phonesand Tumors: Still in No Man’s Land, 46 INDIAN J. CANCER 5, 6 (2009).
27 Grasso, supra note 10 at 6.
28 Id.

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With rise of litigation by cell phone users diagnosed with malignant and benign brain tumors, the
harmlessness of cell phone’s non-ionizing radio frequency radiation has become suspect.29
Although the causal link has not been clearly established, numerous theories exist
concerning the negative effects of cell phone radiation.30 Research suggests that cell phone
radiation could have a number of adverse effects on human brain activity.31 Scientists have
questioned whether cell phone radiation could adversely affect the blood pressure,32 cell
membranes33, and calcium levels in the human brain.34
The recent development of brain tumors in a small number of cell phone users has raised
an enormous amount of public anxiety because of the potential pervasive impact on the
American population.35 In the last fifteen years, the number of cell phone users in the United
States has grown exponentially.36 As of June 2005, the Cellular Telephone Industries
Association, or CTIA,37 estimated that 194.4 million Americans were regular cell phone users.38
CTIA’s estimation of users indicates that, at that time, sixty-six percent of the United States
citizens were cell phone subscribers.39 By June 2009, CTIA estimated that 276.6 million
29 Id.
30 Suzanne Capriotti, Is there a future for cell phone litigation?,18 J. CONTEMP.HEALTH L. & POL’Y 489, 493
(2002). Although research has not established a definite health risk, scientists note that cell phone radiation could
change blood pressure inside the brain, affect the way the brain metabolizes calcium, and allow blood into the brain
through the brain’s blood barrier.
31 Id. at 493-94.
32 Walsh, supra note 1 at 48.
33 Id.
34 Id.
35 See Walsh, supra note 1 at 47.
36See generally Vini G. Khurana et al., Cell Phones and Brain Tumors: a Review Including the Long-term
Epidemiologic Data,72 SURGICAL NEUROLOGY 205, 06 (2009).
37 Cellular Telephone Industries Association, About us, http://www.ctia.org/aboutCTIA/ (last visited Apr. 19, 2010).
The Cellular Telephone Industries Association is an international nonprofit membership organization that represents
the wireless communications industry. CTIA works in conjunction with the federal government and wireless
communications industry to conduct research and advocate for the wireless communications industry.
38 Cellular Telephone Industries Association, Wireless Quick Facts, http://www.ctia.org/media/industry_info/index.
cfm/AID/10323 (last visited Apr. 19, 2010).
39 Id.

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Americans were cell phone subscribers, which indicates that ninety percent of the American
population use cell phones.40
B. Causation in Toxic Tort Litigation
Plaintiffs in any toxic tort are required to show two types of causation.41 First, plaintiffs
must show general causation.42 General causation requires the plaintiff to show that the
substance is capable of causing the injury in question.43 Second, the plaintiff must prove specific
causation.44 Specific causation requires the plaintiff to demonstrate that the particular substance
caused the particular plaintiff’s injury.45 Specific causation has two parts.46 The plaintiff first
must show that the level of exposure was capable of causing the injury, and then the plaintiff
must prove that the level of exposure doubled the plaintiff’s risk of developing the injury. 47 The
doubling effect is usually shown by an odds rate or odds ratio.48 Odds ratios compare whether
the probability of a certain event is the same for two groups.49 An odds ratio of one means that
the probability, or risk, is equal in both groups.50If the odds ratio is more than one, then the
probability or risk for the occurrence is more likely for the test group.51 In a toxic tort, specific
40 Id.
41 David E. Bernstein, Getting to Causation in Toxic Tort Cases, 74 BROOK. L. REV. 51, 52-53 (2008).
42 Id.
43 Id. at 52.
44 Id.
45 Id.
46 Id. at 53.
47 Id. at 54.
48 See generally Khurana supra note 36 at 205-13. See generally Hardell infra note 97 at 114-18. The statistical
methods in the Hardell and Interphone studies expressed statistical significance using odds ratios.
49 Children’s Mercy Hospitals & Clinics’ Stats Repository, http://www.cmh.edu/stats/definition/or.htm (last visited
Apr. 4, 2010).
50 Id.
51 Id. An odds ratio less than one implies that the probability or risk for the first group is less likely.

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causation necessarily requires the proof of general causation; therefore, the plaintiffs’ ultimate
causation hurdle involves satisfying the specific causation burden.52
A plethora of studies involving the effects of cell phone radiation on the human body
have been conducted.53 Since the 1980’s, scientists have conducted two types of studies relevant
to cell phone litigation: animal and epidemiological studies.54 Animal studies are experimental
studies where scientists expose animals to agents or chemicals and measure the development of
certain factors or conditions in the animal population.55 Epidemiological studies are
observational studies where scientists measure exposure rates in humans that are expressed in
statistical ratios.56 Both types of studies have their advantages and disadvantages.57
1. Animal Studies
Animal studies are advantageous because they allow scientists a significant level of
control during testing.58 One of the prime advantages in animal studies is that the tests are
generally experimental, as compared to observational.59 Experimental tests allow scientists to
actually expose animals to possibly harmful agents at high doses that would not be possible in
52 Bernstein supra note 41 at 53.
53 E.g., Benjamin J. Wolf, Can You Hear Me Now?: Cellular Phones and Mass Tort Litigation After Newman v.
Motorola,Inc., 14 ALB. L.J. SCI. & TECH. 267, 282-86 (2003). This authorset out and described the numerous
studies and their competing views. Those studies include: CTIA and FDA joint studies,American Medical
Association studies,New England Journal of Medicine Studies, Canadian Bioelectromagnetic Society studies,
United States Department of Health and Human Services Environmental Health Perspective studies,British Mobile
Telecommunications Health Research studies,Japanese private industry studies,and studies conducted at the
Swedish University of Orebro. The author’s conclusion was that the studies do not offer conclusive proof, but no
one will rule out the causallink between cell phone radiation and health hazards. Walsh supra note 1 at 47-48.
54 E.g., Michael D. Green, Expert Witnesses and Sufficiency of Evidence in Toxic Substances Litigation:The Legacy
of Agent Orange and Bendectin Litigation,86 NW. U. L. REV. 643, 646, 54 (1992).
55 Id.at 654.
56 Id.at 647.
57 E.g,. Id. at 647, 54.
58 Id. at 654.
59 Id.

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humans.60 Thus, animal studies do not trigger the same ethical considerations as human
studies.61 Animals’ incubation period, development, and onset of conditions may be hastened
because animals generally have shorter life spans.62 Finally, animals can be exterminated and
dissected directly after studies for research purposes. 63
Although animal studies have scientific advantages, external validity is the largest and
essentially fatal disadvantage to animal studies.64 The scientific community and, more
importantly, the legal community are hesitant to apply the results from experimental animal
studies to humans.65 In Reynard v. NEC Corporation, the plaintiffs’ causation expert attempted
to base his conclusions on strong inferential data from peer reviewed animal studies, human
brain studies, and a congressional subcommittee report.66 The court reasoned that without
epidemiological support the animal studies were not admissible, because the studies were too
speculative to show causation. 67 Although the plaintiff’s causation expert did not include the
statistical analysis or results of the animal studies, the court stated that such uncertainty in mass
torts calls for judges to screen more thoroughly for speculative scientific evidence.68 Similarly in
Newman v. Motorola, Inc., the plaintiffs attempted to support their epidemiological evidence
60 Id.
61 Id. Scientists can expose animals to higher levels and doses ofexperimental agents in an attempt to generate a
positive correlation between the exposure and desired effect without raising ethical issues that would be involved in
human epidemiological tests.Also,Scientists can kill and dissect the animals after the exposure or treatment has
been completed to discover the effects of the exposure on the body of the animals. These options are unavailable in
human epidemiological studies.
62 Id.
63 Id.
64 Id. at 654-55. External validity is the ability to generalize the results of one group to another group.
65 See generally, Newman v. Motorola, Inc., 218 F.Supp.2d 769, 781 (D. Md. 2002). Animal studies were found to
be inadmissible in Newman. Green, supra note 54 at 654. Professor Michal Green supports this weakness of
extrapolation, which he terms interspecies variation.
66 Reynard v. NEC Corp., 887 F.Supp. 1500, 1506-07 (M.D. Fla. 1995). The congressionalsubcommittee admitted
that no research had been completed on long term human exposure to low levels of radiation specifically from cell
phones.
67 Id.
68 Id.

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with animal studies that indicated a causal connection between cell phone radiation and the
development of malignant tumors.69 Notably, experts on both sides agreed that animal studies by
themselves would not be sufficient to establish a causal link.70 The studies relied upon by the
plaintiff’s causation expert analyzed the growth of malignant tissue and damage to DNA in rats
that were exposed to a type of radiation similar to cell phone radiation.71 The court found the
evidence inadmissible because it was not relevant.72 The Newman court concluded that the
animal studies translated poorly to the plaintiffs’ case, because of low population numbers in the
studies and the levels of radiation were not sufficiently similar.73 In other words, the Newman
court determined that the animal studies were too speculative.74
2. Epidemiologic Studies
“Epidemiology is the study of diseases in populations of humans or other animals,
specifically how, when and where they occur.”75 Epidemiologists research specific variables to
determine factors of risk associated with disease.76 Epidemiological studies are expressed in
statistical ratios.77 The higher the ratio expressed the higher the correlation between exposure and
incidence.78
69 Newman, 218 F.Supp.2d 769, 781 (D. Md. 2002). Dr. Jerry Phillips relied on three animal studies,conducted by
Dr. Henry Lai, where rats were exposed to radiation level similar to level used in cell phones.
70 Id. at 775.
71 Id.
72 Id. at 781.
73 Id.
74 Id. at 783.
75 Extoxnet, Toxicology Information Brief, Epidemiology,http://pmep.cce.cornell.edu/profiles/extoxnet/TIB/
epidemiology.html (last visited Apr. 19, 2010).
76 Id.
77 Id.
78 Green, supra note 54, at 647.

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Epidemiological studies can never prove causation.79 Epidemiological tests can only
show the correlation between exposure and the incidence of the disease.80 The higher the
correlation the more certain the association, but it cannot prove the causation. 81
“Epidemiological studies can be divided into two basic types depending on (a) whether the
events have already happened (retrospective) or (b) whether the event may happen in the future
(prospective).”82 The strength of an epidemiological study is dependent upon the number of
participants.83 The larger the population that is included in the study, the more likely a reliable
correlation will be found between the variables measured.84
Nevertheless, the strength of the epidemiological study can be limited by biases and
errors committed or omitted by the researcher in the sampling, selection, or evaluation.85
Examples of errors and biases are selection bias, diagnostic bias, recall bias, confounders, and
random sampling errors, which all could possibly affect the validity of the research.86 Further,
epidemiological studies have ethical limitations because researchers cannot expose participants
to toxic agents.87 Despite the possibility for errors and ethical limitations, Professor Michael
79 Id.
80 Id.
81 Id.
82 Extoxnet, supra note 82 at Toxicology Information Brief, Epidemiology.
83 Id.
84 Id.
85 Id. at 649-52.There are numerous possible systematic errors involved in epidemiological studies,which include:
selection bias, diagnostic bias, measurement exposure, recall bias, unaccounted confounders,and random sampling
errors. Selection bias is an error that involves the scientist overlooking a variable that could make a participant in the
population more or less susceptible to the desired result. Diagnostic bias occurs when the disease measured has not
been accurately identified or defined. Measurement exposure is an error related to the study failing to adequately
measure the onset time of the disease,which could result in an understatement of the effect. Recall bias involves the
population having difficulties being able to accurately recall a factor relevant to the study.An unaccounted
confounderis an extraneous variable unaccounted forby the study that influences the result of the test.Random
sampling errors are errors of chance, such as choice, that occur within multiple studies of the same population that
may affect the end result.
86Id. at 648. It is ethically wrong for scientist to expose or subject human participants to agents that could injure or
harm them.
87 Id.

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Green asserts that epidemiological studies, in general, are at the pinnacle of indirect evidence
hierarchy in toxic torts.88
The available long term epidemiological causation evidence in cell phone litigation is
scarce.89 Of the three cases that have reached the causation stage of litigation, only Newman
presented epidemiological causation evidence.90 Reynard and Ward illustrate the current weak
epidemiological record.91 In Motorola v. Ward, the plaintiff’s causation experts concluded that
cell phone radiation caused or accelerated the plaintiff’s cancer.92 The Ward court granted
summary judgment to the defendants because the plaintiff’s causation experts failed to support
their conclusions with epidemiological evidence.93 The court explained that a jury would have to
speculate about whether a causal connection exists between the cell phone radiation and the
development of the cancer.94 Similarly in Reynard v. NEC Corporation, the court granted
summary judgment for the defendants because the plaintiff’s primary causation expert failed to
support his conclusions with epidemiological evidence.95 The court explained that “theoretical
speculations, unsupported assumptions, and conclusory allegations advanced by an expert” are
not sufficient to establish a material issue of fact without support of specific facts or data.96
88 Id. at 658.
89 See Wolf, supra note 53, at 282.
90 See Newman v. Motorola, Inc., 218 F.Supp.2d 769, 776 (D.Md. 2002).
91Reynard v. NEC, Corp., 887 F.Supp. 1500, 1505 (M.D. Fla. 1995); Motorola v. Ward, 478 S.E.2d 465, 466 (Ga.
Ct. App. 1997).Both plaintiffs in Reynard and Ward failed to present any epidemiological support for establishing
causation.
92 Ward, 478 S.E.2d at 466.
93 Id.
94 Id.
95 Reynard, 887 F.Supp. at 1506. The court determined that the defendants were entitled to a judgment as a matter of
law because the unsupported conclusionsdid not meet Florida’s “but for” standard for wrongful death claims.
96 Reynard, 887 F.Supp. at 1506.(citing Bell v. Swift Adhesives,Inc., 804 F.Supp. 1577, 1579(S.D.Ga. 1992)).

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Only two long term epidemiological studies have been conducted researching the link
between cell phone radiation and brain tumors.97 The results of the studies have been subject for
much controversy, but the Hardell and Interphone studies are the only long term epidemiological
studies that currently exist in this area of research.98 As of today, only Dr. Hardell’s
epidemiological evidence has been used in litigation.99
Dr. Lenart Hardell100 began his epidemiological studies of cell phone users and brain
cancer in Sweden during the late 1990’s.101 Dr. Hardell’s studies analyzed the causal link
between long term cell phone use and the development of brain tumors.102 Dr. Hardell’s
epidemiological studies were the first of their kind because the studies accounted for a longer
latency periods as a variable during research.103 Dr. Hardell apparently conducted his research in
two waves of research where he compiled data from participant responses given during
telephone interviews and mailed questionnaires.104
Dr. Hardell’s most recent epidemiological studies were conducted in 2006.105 In 2006,
utilizing questionnaires and telephone interviews, Dr. Hardell measured the occurrence rates of
three different types of brain tumors: Glioma,106 acoustic neuroma,107 meningioma.108 The 2006
97 See Lennart Hardell et al., Epidemiological Evidence for an Association Between Use of Wireless Phones and
Tumor Diseases, 16 PATHOPHYSIOLOGY 113, 113 (2009). See Khurana, supra note 36 at 208-09.
98 See Hardell, supra note 96 at 113; Khurana supra note 36 at 208-09.
99 See Newman v. Motorola, Inc., 218 F.Supp.2d 769, 776 (D. Md. 2002).
100 Dr. Hardell is a professorof oncology at the University Hospital in Orebro, Sweden. Newman v. Motorola, 218
F.Supp.2d 769, 776 (D.Md. 2002).
101 Kurana, supra note 36 at 208.
102 Newman, 218 F.Supp.2d at 776.
103 Kurana, supra note 36 at 209.
104 218 F.Supp.2d at 776-77.
105 Kurana, supra note 36 at .
106Hardell supra note at 115. Glioma is a malignant type of brain tumor and comprises about 60% of all central
nervous systemtumors.
107 Id. at 116. Acoustic neuromas are benign and cannot become cancerous,however they grow on and around the
auditory nerves in the auditory canal and can grow into the brain stem.
108 Id. Meningioma arises from the outer layer of the brain or the covering layers of the central nervous system.The
majority are benign tumors that are encapsulated and well demarked from surrounding tissue.

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Hardell study consisted of 136 cases and 297 controls. 109 Dr. Hardell pooled a group of
participants that had been cell phone users for a period longer than ten years under each of the
three subgroups of brain tumors.110 Additionally, Dr. Hardell analyzed whether the tumor
developed on the side of the participant’s brain where he or she primarily held the phone.111 If
the tumor developed on the same side of brain where the participant primarily held the phone
during calls, the participant was termed and analyzed under the ipsalateral category.112 If the
tumor developed on the opposite side of the brain, the participant was group and analyzed under
the contralateral category.113
The results from the 2006 Hardell study show strong support of a link between long term
cell phone exposure and the development of brain tumors.114 In the ipsalateral group, the
participants were twice as likely to develop a tumor on the side of their brain where they
primarily held their phones during use.115 The long term ipsalateral gioma group had an odds rate
of 4.4 and contralateral odds rate of 2.8.116 The long term ispalateral acoustic neuroma group had
an odds ratio of 3.5 and a contralateral odds ratio of 2.4.117 However, the long term ipsalateral
meningioma group had an odds ratio of just 2.0 and a contralateral odd ratio of 1.6, which is
below the legal causation standard of 2.0.118 Despite the lower rates in the meningioma groups,
the odds rates for gioma and acoustic neuroma were quite high.119
109 See Id.
110 Id. at 114, 115, 117.
111 Id 113.
112 Id.
113 Id.
114 Id. at 114, 115, 117. The results for two out of the three types of brain tumors were significantly higher than a 2.0
correlation.
115 See Id.
116 See Id. at 114.
117 Id. at 115.
118 Id. at 117.
119 See Id. 114, 115, 117.

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The second long term epidemiological study was the European multinational World
Health Organization Interphone study conducted between 2004 and 2008.120 The goal of the
Interphone study was to determine the risks associated between long term cell phone use and the
development of malignant brain tumors occurring in thirteen European countries.121 The
Interphone study used an interview based system to assess the risks of the same three types of
tumors measured in the Hardell studies.122
Despite low participation rates in this massive epidemiological study, the overall trends
showed lower odds ratios compared to the Hardell studies for both ipsalateral and contralateral
groups, which were all between 2.0 and 1.0.123 The highest odds ratios in the Interphone study
existed in the acoustic neuroma groups for both ipsalateral and contralateral.124 The lowest odds
ratios were in meningioma groups.125 Although the odds ratios were lower in the Interphone
study, the groups for all three of the different types of brain tumors show continuity in the
measurements compared to the Hardell studies.126
Due to the limited data and studies, epidemiological experts studying the long term
effects of cell phone radiation have started a meta-analysis127 trend towards recalculating the
odds rates of the limited long term epidemiological record to further extrapolate the data from
120 Khurana, supra note 36 at 208.
121 Id. at 209.
122 Id. at 208. The Interphone study measure the occurrence rates of glioma, acoustic neuroma, and meningioma.
123See Id.
124 Id.
125 Id.
126 Compare, Id., with Hardell, supra note at 114, 115, 117.
127Merriam Webster, Meta-analysis,http://www.websters-online-dictionary.org/Me/Meta-Analysis.html (last visited
Apr. 19, 2010). Meta-analysis is a statistical procedure to combine a number of existing studies.Through such a
procedure, effect which are hard or impossible to discern in the original studies because ofa too small sample size
can be made visible, as the meta-analysis is equivalent to a single study with the combined size of all original
studies.A weakness of the method is that problems with any of the studies will affect the result of the meta-analysis,
so a good meta-analysis of bad studies will still result in bad data.

15
the previous studies.128 Dr. Hardell has been particularly active in extrapolating the data from his
previous 2006 studies and the Interphone studies.129 Two recent articles have been published in
medical journals asserting a causal link exists between long term cell phone use and brain
tumors.130 In January 2009, Dr. Hardell and Dr. Vini G. Khurana Ph.D. published an article titled
“Cell phones and brain tumors: a review including the long term epidemiologic data” in the
journal Surgical Neurology.131 The article concluded that the epidemiological data represents a
need for reassessment of radiation by governments, and neurosurgeon will begin to see an
increase in the numbers of brain tumors in their patients in the near future.132 Additionally, Dr.
Hardell published “Epidemiological evidence for an association between use of wireless phones
and tumor diseases” in the journal Pathophysiology in January 2009.133 Dr. Hardell’s concluded
that due to a consistent pattern of increased risk for acoustic neuroma and glioma for groups of
consumers using cell phones for a period longer than ten years, cell phone regulations are not
safe for long term exposure and needs to be revised.134
III. Daubert and its Effect on Causation Evidence in Cell Phone Litigation
This portion of the paper discusses the development of the current standards of
admissible expert evidence in the American civil judicial system and its effects on causation
evidence in cell phone litigation. Part A addresses the development of the Daubert standard of
admissibility. Part B discusses the effect that Daubert has had on causation evidence in cell
128 See generally, Khurana, supra note 36 at 207.
129 See generally Hardell, supra note 97 at 113; Khurana, supra note 36 at 205. Dr. Hardell was the author and co-
authorof two recent meta-analysis studies.
130 See generally Hardell, supra note 97 at 113; Khuarna supra note 36 at 205.
131 See generally Khurana supra note 36 at 205.
132 Id. at 213.
133 See Hardell, supra note 97 at 113.
134 Id. at 121.

16
phone litigation. Part B also identifies three common evidentiary trends that have developed in
cell phone litigation.
A. Daubert and Standards of Admissibility
Beginning in 1923, the case of Frye v. United States set the dominant standard for the
admissibility of expert testimony.135 In Frye, the trial court convicted the defendant of murder in
the second degree.136 During trial, the judge excluded the results of a systolic deception test,137
an early simple form of the polygraph, offered by Frye’s expert witness.138 Frye’s attorney
argued that testimony of expert opinions should be admissible if the subject of the opinion was
not of common knowledge and would assist the jury in making an informed decision.139 On
appeal, the United States Court of Appeals for the District of Columbia ruled that Frye’s expert
testimony concerning the results of a deception test were inadmissible because the methods were
not well recognized scientific principle.140 The court in Frye found that in order to be admissible,
the basis of an expert’s testimony must be “sufficiently established to have gained general
acceptance in the particular field in which it belongs.”141
135See generally Frye v. United States, 293 F. 1013, 1013 (D.C. Cir. 1923).
136 Id.
137 Id. at 1014. The systolic pressure test offered by Frye’s expert witness attempted to link an increase in the
participant’s heart rate to the conscious ability to lie. The expert claimed that when the subject consciously lied the
participants blood pressure would noticeably increase as compared to when the participant told the truth.
138 Id. at 1013.
139 Id.
140 Id.
141 Id.

17
The “general acceptance test” from Frye was widely used from 1923 until the landmark
case of Daubert v. Merrell Dow Pharmaceuticals, Inc. in 1993.142 In Daubert, two minor
children brought suit against Merrell Dow Pharmaceuticals alleging that its drug Bendectin, an
anti nausea medication, caused birth defects after their mothers ingested the medication during
pregnancy.143 At the district court level, Merrell Dow moved for summary judgment maintaining
that Bendectin did not cause birth defects and the plaintiffs would not be able to produce any
evidence to prove causation.144 In support of its motion for summary judgment, Merrell Dow
offered the expert testimony of Dr. Steven H. Lamm, a physician and epidemiologist.145 Dr.
Lamm’s expert testimony asserted that, after an extensive study of published reviews and over
130,000 case reviews, none of the studies had found Bendectin capable of causing malformations
in fetuses.146 The plaintiffs did not attempt to disprove Dr. Lamm’s expert testimony.147 Instead,
the plaintiffs offered causation evidence based upon animal studies that found a link between
Bendectin and fetal malformations, studies that compared the chemical composition of Bendectin
and other drugs known to cause fetal malformations, and recalculations of previous
epidemiological studies.148
The district court concluded that the petitioner’s expert testimony did not meet the
“generally accepted” standard as set forth in Frye.149 The district court stated that the animal cell
studies, live animal studies, and chemical structure analyses “could not raise by themselves a
142 See generally, Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993); Frye v. United States,293 F.
1013 (D.C. 1923).
143 Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 583 (1993).
144 Id. at 582.
145 Id.
146 Id.
147 Id.
148 Id. at 583.
149 Id. at 584.

18
reasonably disputable jury issue regarding causation.”150 The district court held that “[plaintiffs’]
epidemiological analyses, based as they were on recalculations of data previously published
studies that had found no causal link between the drug and birth defects, are ruled to be
inadmissible because they had not been published or subjected to peer review.”151 The district
court placed significant weight on the fact that the plaintiffs’ expert evidence was not a
“generally accepted” technique and not subjected to peer review.152 Having excluded the
plaintiffs’ causation expert, the district court granted Merrell Dow’s summary judgment
motion.153
The plaintiffs appealed to the United States Court of Appeals for the Ninth Circuit.154 On
appeal, the Ninth Circuit applied Frye’s “general acceptance test.”155 The Ninth Circuit found
that the plaintiffs’ animal and chemical studies were insufficient to establish a causal link
between birth defects and Bendectin.156 The Ninth Circuit relied on opinions from the First,
Third, and Fifth Circuit Courts of Appeal that required epidemiological evidence in Bendectin
cases to establish the causal connection. 157 Further, the Ninth Circuit found that the reanalyzed
epidemiological evidence inadmissible because the plaintiffs’ epidemiological evidence had
undergone serious criticism by the scientific community and Merrell Dow presented massive
weight in opposition to the plaintiffs’ epidemiological record.158 Further, the Ninth Circuit
maintained that the recalculation of epidemiological evidence, as presented by the plaintiffs, was
150 Id.
151 Id.
152 Id.
153 Id. at 583.
154 Daubert v. Merrell Dow Pharm., Inc., 951 F.2d 1128, 1128 (9th Cir. 1991), vacated,Daubert v. Merrell Dow
Pharm., 509 U.S. 579, 597-98 (1993).
155 Id. at 1129.
156 Id. at 1130.
157 Id.
158 Id. at 1130.

19
only accepted and reliable when it has undergone verification by others in the field.159 Thus, the
Ninth Circuit found the plaintiffs’ causation evidence inadmissible and affirming the district
court’s ruling in favor of Merrell Dow.160
Following the Ninth Circuit’s ruling, the United States Supreme Court granted certiorari
to clarify the proper standards for the admission of expert testimony.161 The Court held that
Frye’s “general acceptance test” was not the proper standard for the admissibility of expert
opinion testimony.162 First, the Supreme Court reasoned that Federal Rule of Evidence 702
invalidated Frye’s “general acceptance” requirement.163 The Court stated that the drafting history
does not mention Frye’s “general acceptance test”, and it would conflict with the liberal and
flexible opinion testimony standards of the Federal Rules of Evidence.164 Thus, the Court
rejected the Frye test.165
Second, the Court clarified that, although the Federal Rules of Evidence may have
superseded Frye, Rule 702 does suggest regulations and standards to be applied to the subject
matter and concepts which experts may testify.166 The Court continued that “[i]f scientific,
technical, or other specialized knowledge will assist the trier of fact to understand the evidence
or to determine a fact in issue an expert “may testify thereto.”167 In sum, the Court stipulated that
requiring the “expert’s testimony pertain to ‘scientific knowledge’ establishes a standard of
evidentiary reliability,”168 and further requiring that the evidence assist the trier of fact to
159 Id. at 1131.
160 Id.
161 Daubert v. Merrell Dow Pharm., 509 U.S. 579, 585 (1993).
162 Id. at 598.
163 Id. at 588.
164 Id. (quoting, Beech Aircraft Corp. v. Rainey, 488 U.S. 153, 169 (1988) (citing FED. R. EVID. 701-705))).
165 Id. at 589.
166 Id.
167 Id.
168 Id. at 590.

20
understand the evidence or to determine a fact at issue ensures a standard of relevance.169 The
Daubert Court established that the trial judge is the primary gate keeper, which is to conduct the
two prong test for the admissibility of expert witness evidence.170 As the gatekeeper of
admissible evidence, the trial judge must first determine whether the expert’s testimony is related
to scientific knowledge.171 Then, the trial judge must determine whether the expert’s testimony
will aid the jury in determining a relevant issue of fact.172 This entails a preliminary assessment
of whether the methodology is valid and applicable to the facts and issues before the court.173
Therefore, the Court established that the preliminary inquiry demands that the trial judge find
that the methods and theories are relevant and reliable.174
Finally, the Court set forth a list of considerations that are relevant for the trial judge to
contemplate during his or her test for admissibility.175 The non-exhaustive and non-dispositive
list includes:
(1) whether the theory or technique can be or has been tested; (2) whether it has
been subjected to peer review and publication; (3) whether a technique has a high
known or potential rate of error and whether there are standards controlling its
operation; and (4) whether the theory or technique enjoys general acceptance with
a relevant scientific community.176
169 Id. at 591.
170 Id.
171 Id. at 592.
172 Id.
173 Id.
174 Id.
175 Id.
176 Newman v. Motorola, Inc., 218 F. Supp.2d 769, 773 (D. Md. 2002) (quoting, Daubert v. Merrell Dow, Inc., 509
U.S. 592-594 (1993)).

21
Applying the new standard on remand, the Ninth Circuit Court of Appeals found that the
Daubert factors noted above were “illustrative rather than exhaustive.”177
Under the first prong of the new test, the Ninth Circuit interpreted the Supreme Court’s
decision to mean that it was the trial judge’s duty to determine whether the expert’s testimony
amounted to “scientific knowledge,” constituted “good science,” and was “derived by the
scientific method.”178 The court explained that the trial judge was required to ascertain the basis
of the expert’s testimony, which demands the expert to show the opinion is valid or grounded in
sound science.179 The expert must present objective and independent validation of his or her
methods to show that the opinion is based in sound science.180 The Ninth Circuit mentioned, in
conjunction with the factors included in the Supreme Court’s opinion, two additional
considerations of objectivity and validity.181 The court stated that studies conducted
independently of litigation have higher objectivity and reliability. Also, peer review and
publication assist in identifying substantive flaws and testing the soundness of methodology.182
The Ninth Circuit ruled the plaintiffs’ evidence inadmissible under the first prong of the
new Daubert standard because the plaintiffs failed to support their expert’s testimony with
objective evidence.183 The Ninth Circuit stated that the plaintiffs failed to show that the research
supporting their expert’s testimony was conducted independent of litigation or that it was peer
177See Daubert v. Merrell Dow Pharm., Inc., 43 F.3d 1311, 1317 (9th Cir. 1995)(on remand). The Ninth Circuit
began with a procedural matter by stating that it was proper for the appellate court, rather than the trial court, to
adjudicate Daubert on remand, because the appellate court was familiar with the evidentiary issues and they wanted
to offer guidance on the application of the new Daubert standard.Also, the Ninth Circuit recognized that trial judges
are largely untrained in science and trial judges are not match for experts that offer testimony in their courts.
178Id. at 1316.
179Id.
180Id.
181Id. at 1317.
182Id. at 1318.
183Id. at 1319.

22
reviewed and published, which both would have tended to show objectivity and reliability of the
research and the experts’ conclusions.184 Further, the court found that the plaintiffs’ experts
offered no objective evidence supporting their methods, such as treatises or scientific journals.185
Thus, the court rejected the plaintiffs’ experts’ testimony because the experts’ testimony
consisted of unsupported conclusions.186
Under the second prong, the Ninth Circuit applied the Supreme Court’s relevancy or “fit”
test in finding the plaintiffs’ expert witness testimony inadmissible.187 The Ninth Circuit did not
expand the Supreme Court’s second prong when it applied it to Daubert on remand.188 The court
found that the type of evidence presented by the plaintiffs’ experts was not of the nature that
would assist the trier of fact in determining a fact at issue.189 The Ninth Circuit stated that the
plaintiffs’ epidemiological record was not statistically significant and that the comparative
chemical studies were speculative.190 Also, the court rejected the plaintiffs’ animal studies and
chemical comparison studies, finding that the evidence showed possibility and not probability.191
Further, the court scrutinized the plaintiffs’ statistical interpretation of their evidence, stating that
the plaintiffs’ causation evidence was not sufficient unless they could prove that Bendectin
doubled the risk of the birth defects.192
B. Daubert’s effect on cell phone litigation
184Id.
185Id.
186Id.
187Id. at 1321.
188Id. at 1320.
189Id.
190Id.
191 Id. at 1322.
192 Id. at 1321-1322.

23
In the application of the Daubert standard to cell phone litigation, three common trends
have developed, which have excluded all of the plaintiff’s expert causation evidence.193 First, the
current case law shows that trial judges in cell phone litigation have endorsed epidemiological
studies as the only viable causation evidence that will be admissible in court.194 Second, trial
judges routinely have dissected the statistical support for plaintiffs’ causation experts’
conclusions, finding defense expert testimony more persuasive.195 Third, if cell phone plaintiffs
can present epidemiological evidence showing a causal connection, the court likely will find it
inadmissible by resurrecting the “general acceptance” rule from Frye.196
First, courts have concluded that the only admissible causation evidence under Daubert
in cell phone litigation is reliable epidemiological evidence.197 Consequently, trial judges’ per se
requirement of epidemiological causation evidence excludes the use of other forms of
evidence.198 Other forms of evidence, such as animal studies, have been found inadmissible
under both the reliability and relevancy prongs of Daubert.199 Thus, courts have endorsed
epidemiological evidence as the only sufficient form of causation evidence in cell phone
litigation.200
Reynard and Ward illustrate that a cell phone plaintiffs’ case will fail if it is not supported
by epidemiological evidence.201 In Reynard v. NEC Corp., the court granted the defendants’
motion for summary judgment after finding the plaintiff’s causation experts’ testimony
193 E.g., Reynard v. NEC Corp., 887 F.Supp. 1500, 1508 (M.D. Fla. 1995); Newman v. Motorola, Inc., 218
F.Supp.2d 769, 783 (D. Md. 2002); Motorola Inc. v. Ward, 478 S.E.2d 465, 466 (Ga. Ct. App. 1997).
194 E.g., Reynard, 887 F.Supp. at 1508; Newman, 218 F.Supp.2d at 783; Ward, 478 S.E.2d at 466.
195 E.g., 218 F.Supp.2d at 778-79 (D. Md. 2002).
196 E.g., Id.
197 E.g , 887 F.Supp. at 1508; 218 F.Supp.2d at 783; 478 S.E.2d at 466.
198 E.g., 887 F.Supp. at 1508; 218 F.Supp.2d at 783; 478 S.E.2d at 466.
199 E.g., 218 F.Supp.2d at 781.
200 E.g , 887 F.Supp. at 1508; 218 F.Supp.2d at 783; 478 S.E.2d at 466.
201 E.g., 887 F.Supp. at 1508; 478 S.E.2d at 466.

24
inadmissible.202 The plaintiff’s expert relied on a congressional subcommittee report,203 animal
studies,204 and human brain studies to support his conclusion.205 During the Daubert analysis,
the Reynard court excluded the plaintiff’s expert opinion under Daubert’s reliability prong.206
The Reynard court held that the expert’s opinion was unreliable because it was not supported by
peer reviewed independent research.207 In Reynard, the court stated that the plaintiff did not
satisfy her causation burden because the plaintiff’s expert failed to support his conclusions with
specific facts and data.208 Similarly in Motorola v. Ward, the plaintiff’s causation expert’s
conclusion was found inadmissible because it failed to set out a statistical link between the cell
phone radiation exposure and the plaintiff’s cancer.209 Reynard and Ward illustrate that reliable
epidemiological causation evidence is vital to satisfying the plaintiff’s causation burden.210
Newman v. Motorola, Inc. demonstrates that the epidemiological evidence supporting a
plaintiff’s causation theory must be reliable under Daubert and animal studies are inadmissible
in cell phone litigation.211 In contrast to Reynard and Ward, the plaintiffs in Newman supported
their causation theory with specific epidemiological and animal studies.212 In Newman, the court
granted the defendant’s motion to exclude the plaintiffs’ causation experts because the court
202 887 F.Supp. at 1508.
203 Id. The congressionalsubcommittee report stated that little research had been conducted on the long term effects
of cell phone radiation and more research should be conducted.
204 Id. at 1505. The plaintiff’s expert did not provide any specific animal study results to the court. The plaintiff’s
expert stated that strong inferential data existed that tended to showthe causal link between cell phone radiation and
cancer cell development.
205 Id. at 1508.
206 Id.
207 Id.
208 Id. at 1508.
209 Motorola, Inc. v. Ward, 478 S.E.2d 465, 466 (Ga. Ct. App. 1997).
210 E.g., Reynard v. Motorola, Inc., 887 F.Supp. 1500, 1505 (M.D. Fla. 1995); Motorola, Inc. v. Ward, 478 S.E.2d
465, 466 (Ga. Ct. App. 1997).
211 See Newman v. Motorola, Inc., 218 F.Supp.2d 769, 783 (D. Md. 2002)
212 Compare, Id. with Reynard, 887 F.Supp. at 1505; Ward, 478 S.E.2d at 466. The plaintiffs in Reynard and Ward
failed to support their causation theories with actual data. Whereas,the plaintiffs in Newman presented animal
studies and epidemiological data to support their causation theories.

25
found the plaintiffs’ epidemiological evidence unreliable. Although the plaintiffs’
epidemiological evidence was peer reviewed and published, the Newman court found the
plaintiff’s epidemiological evidence inadmissible because the expert’s methods had not been
replicated.213 Further, the court excluded the plaintiffs’ animal studies as irrelevant and
unreliable under Daubert.214 The court in Newman questioned the relevance or “fitness” of the
animal studies by distinguishing the level of radiation that was used in the studies as compared to
the level of radiation used in the plaintiff’s cell phone.215 The court also found the animal studies
unreliable because the methodology had not been replicated216 and the statistical results of the
studies were inconsistent.217 Thus, Newman shows that reliable epidemiological evidence is
required to establish causation, and supports the argument that animal studies are generally
inadmissible in cell phone litigation.218
Second, trial judges appear more willing to dissect the plaintiff’s epidemiological record
and be persuaded by defense expert rebuttal witnesses when examining reliability issues under
Daubert.219 In Newman v. Motorola, the court rejected early epidemiological research conducted
by Dr. Hardell.220 The plaintiffs submitted the results from two of Dr. Hardell’s epidemiological
studies to support their conclusion that cell phone radiation caused the development and
acceleration of the plaintiff’s brain tumor.221 In response to the plaintiffs’ epidemiologic
evidence, the defendants offered testimony from three epidemiological experts.222 The
213 Id. at 777-79.
214 Newman, 218 F.Supp.2d at 783.
215 Id. at 782.
216 Id. at 781.
217 Id. at 782.
218 See Id. at 783.
219 See Id. at 775-80.
220 Id. at 783.
221 Id. at 776-77.
222 Id. at 778-80.

26
defendants’ experts testified that Dr. Hardell’s studies and analysis were subject to numerous
errors and directly opposed Dr. Hardell’s conclusions.223 The court found the defendants’
experts’ criticisms of Dr. Hardell’s methodology and statistical analysis more persuasive than Dr.
Hardell’s results and conclusions.224 First, the court found that there was no significant statistical
correlation between cell phone radiation and cancer cell development.225 Second, the court
mentioned that Dr. Hardell’s study was vulnerable to recall bias.226 Third, the court noted that
Dr. Hardell’s studies lacked any examination of a dose-response relationship, which Dr. Hardell
agreed was paramount.227 Fourth, the court attacked Dr. Hardell’s theory of ispilaterality.228
Fifth, the court agreed with a defense expert that Dr. Hardell had overly emphasized certain
subgroups,229 particularly the effected brain tumor group, within the study before asserting a
hypothesis to test.230 Finally, the court stated that Dr. Hardell’s studies had not been replicated
and were subject to a substantial amount of criticism and opposition.231 The Newman court
223 Id. The defense experts testified that Dr. Hardell’s work was subject to numerous flaws, including: recall bias,
lack of dose response relationship,his ispalateral theory was irrelevant, and certain subgroups were manipulated to
serve a post hoc hypothesis.
224 Id.
225 Id. at 778.
226 Id. Recall bias is when the results of the test rely on the participants’ memory and their ability to recall a
particular event. In Dr. Hardell’s second study,the questionnaires asked the participants to recall which side of their
head they normally would use their cell phone. The Newman court took issue with the fact that participants in Dr.
Hardell’s studies may not have responded accurately due to prolonged periods of time between reporting and cell
phone use.Thus, the court discredited Dr. Hardell’s study based on the methodology.
227 Id. Dose response relationship interprets the amount of exposure as compared to the amount of reaction, so if a
patient receives more of an agent or a higher exposure, under a positive dose response relationship, the reaction or
response should be higher.
228 Id. The court found significant problems with relying on an ipsilateral association as evidence of causation when
there is no underlying evidence of an association between cell phone use and development of malignant brain
tumors.
229 Id. at 779. A defense expert stated that it is not good methodology to highlight certain raised subgroups without
first formulating a hypothesis.
230 Id.
231 Id.

27
granted the defendants’ motion to exclude Dr. Hardell’s studies because there were numerous
flaws in his methodology and statistical analysis.232
Third, even if plaintiffs are able to find peer reviewed and published epidemiological
causation evidence, the trial court will resurrect Frye’s “general acceptance” test to find the
epidemiological evidence inadmissible.233 In Newman v. Motorola, Dr. Hardell’s
epidemiological evidence was peer reviewed and published in four medical journals.234 The court
acknowledged that peer review is a quality control measure that assists in identifying and curing
errors in methodology and calculation.235 Nevertheless, the court disregarded Dr. Hardell’s peer
reviewed publications because the methods used had not been replicated and were not generally
accepted within the scientific community.236 Although Dr. Hardell’s work had not been
replicated, Dr. Hardell’s research was groundbreaking at the time of litigation and, even today,
additional long term epidemiological causation evidence does not exist in cell phone litigation.237
Thus, the trial judge found Dr. Hardell’s work inadmissible by resurrecting Frye’s “general
acceptance” test,238 which is contrary to the Supreme Court’s holding in Daubert.239
Using Daubert, the courts have developed a pro-defendant court that has effectively
screened out all causation experts and evidence brought forth by plaintiffs alleging that cell
phone radiation caused or accelerated the development of their brain tumors.240 Scholarly
232 Id at 783.
233 See Id. at 783.
234 Id. Dr. Hardell articles were published in the International Journal of Oncology in 1999, the European Journal of
Cancer Prevention in 2001 and 2002, and the International Journal of Radiation Biology in 2001.
235 Id. at 778
236 Id. at 783.
237 Wolf, supra note 53 at 281.
238 E.g., Newman v. Motorola, Inc, 218 F. Supp.2d 769, 783 (D. Md. 2002).
239 Daubert v. Merrell Dow, Inc., 509 U.S. 579, 597 (1993).

28
commentary on the shift to a pro-defendant court in cell phone litigation asserts that it could be
the judiciary attempting to control litigation in this area.241 One author believes that the
development of the pro-defendant shift represents the fear of opening the floodgates of litigation
and the courts inability to adequately address causation issues in the absence of sufficient long
term research.242 As of today, the pro-defendant court has utilized Daubert to effectively stall
cell phone litigation.243
IV. Looking Back to Move Forward in Cell phone Litigation
This portion of the paper discusses the possible benefits of additional long term
epidemiological evidence and judicial reform in cell phone litigation. Part A addresses the
universal call and possible benefits of future long term epidemiological research in cell phone
litigation. Part B examines and compares the similarities between the Agent Orange, Bendectin,
cell phone litigations. Part B also accesses scholarly criticism of the Agent Orange and
Bendectin litigations and discusses their applicability to cell phone litigation. Part C discusses
the benefits of the adoption of a preponderance of the available evidence standard in cell phone
litigation.
A. The Need for More Long Term Epidemiological Studies in Cell Phone Litigation
241 Grasso supra note 10 at 30.
242 Id.
243 See E.g., Reynard, 887 F.Supp. at 1509; Newman, 218 F.Supp.2d at 783; Ward at 466.

29
The judiciary,244 government,245 and scientific community246 all agree that more research
needs to be conducted on the long term effects of cell phone radiation.247 The Federal
Communication Commission, or FCC, in association with other private and governmental
bodies,248 is the federal agency that develops and adopts radiofrequency radiation regulations in
the United States.249 The FCC is also responsible for monitoring developments and identifying
research that is necessary in the area of cell phone radiation.250
Currently, the Federal Communication Commission website addresses the issue of cell
phone radiation.251 The website asserts that the evidence of cell phone radiation producing
harmful biological effects is unproven and further experimental research has been unable to
reproduce the effects.252 The website also mentions that further research is needed to determine
the generality of such effects and their possible relevance.253 Importantly, the FCC website
admits that most of the non-military research on biological effects of the cell phone radiation in
the United States is being funded by the cell phone industry.254
244 See generally 887 F.Supp.1500 at 1509; 218 F.Supp.2d at 783; 478 S.E.2d at 466.
245 See generally FCC, supra note 9. The FCC and FDA state that there is no causal link between cell phone
radiation and brain cancer. However, both bodies are still state that they are conducting research.
246 See generally Khurana, supra note 36 at 213; Hardell, supra note 97 at 121. Dr. Khurana and Hardell both
concede that participation number are low and larger populations could benefit the strength and reliability of the
statistical analysis in the long term effects of cell phone radiation.
247 See generally 887 F.Supp. 1500 at 1509; 218 F.Supp.2d at 783; 478 S.E.2d at 466. See generally Khurana, supra
note 36 at 213; Hardell, supra note 97 at 121. See generally FCC, supra note 9 at Radio Frequency Safety.
248FCC, supra note 9. The FCC works in association with the Environmental Protection Agency,the United States
Food and Drug Administration, the National Institute for Occupational Safety and Health to develop and research
cell phone radiation regulations.
249 FCC, supra note 9.
250 Id.
251 Id.
252 Id.
253 Id.
254 Id.

30
Similarly, the case law in this area of litigation recognizes the call for additional long
term epidemiological evidence.255 Reynard, Ward, and Newman demonstrate a call for more
research.256 In Reynard v. NEC Corp., the plaintiff’s causation expert attempted to support his
causation theory on a congressional subcommittee report that expressed concern for risks
associated with cell phone radiation under the current regulatory scheme.257 Although the
Reynard court stated that the subcommittee report did not establish an issue of material fact, the
report and the court’s opinion is demonstrative of the need for further research on the long term
effects of cell phone radiation.258 In Newman v. Motorola, Inc., plaintiff and defense experts
both agreed that additional research is needed on the long term effects of cell phone radiation. A
defense expert testified that the risk of cancer is not associated with the use of cell phones, but
more research need to be conducted for longer latency periods.259 Additionally, the plaintiff’s
expert that conducted the animal studies admitted that there was insufficient research data to
conclude that there is a link existed between cell phone radiation and cancer.260 Lastly, the court
discounted the Dr. Hardell’s studies because the methods had not been replicated, which implies
a call for subsequent research.261
255 See Reynard v. NEC Corp., 887 F.Supp. 1500, 1505 (M.D. Fla. 1995); Newman v. Motorola, Inc., 218 F.Supp.2d
769, (D. Md. 2002); Motorola Inc. v. Ward, 478 S.E.2d 465, 466 (Ga. Ct. App. 1997). In Reynard, the plaintiff’s
causation expert offered a congressionalsubcommittee report that was a call for research. The Reynard court
recognized the lack of evidence and ruled in favor of the defendants.In Newman, the court scrutinized the Dr.
Hardell’s first and second study because it had not been replicated. In Ward, the plaintiff failed to offer any
epidemiological evidence.
256 Reynard, 887 F.Supp. at 1505.
257 Id.
258 Id.
259 Newman, 218 F.Supp.2d at 774 n. 5.
260 Id. at 782.
261 Id.

31
Finally, legal scholars also agree additional epidemiological research in this area would
be most beneficial to the cell phone industry, Americans in general, and to the judiciary.262
Between 2002 and 2008, three scholarly articles all identified the call for research by the
judiciary and claim that more research is the best solution.263 One article noted that the issue
becomes more pressing as time passes because more Americans are using cell phones and for
longer periods of time.264 Another article emphasized that if there is going to be a future in cell
phone litigation more research is necessary.265 This author asserts that enough inconsistent
evidence exists to warrant further research and until then Americans should take precautions.266
Thus, legal scholars are all in agreement that more research is the clearest answer to the current
issues arising in cell phone litigation.267
However, the call for additional epidemiological research needs to be qualified. The
current message conveyed by the FCC, which is also supported by the cell phone industry, is that
the current research is inconclusive and does not establish a link between cell phone radiation
and the development of malignant tumors under the current regulations.268 The current FCC
reports have been conducted in conjunction with the cell phone industry, which creates a
presumption of bias.269 These concerns lead to one inevitable conclusion. The next wave of
epidemiological tests conducted needs to be undertaken by a disinterested and independent party
that does not have any temptation or motivation to produce any particular results.
B. Looking to the Agent Orange and Bendectin Litigations for Judicial Reform
262 Wolf, supra note 53 at 281; Capriotti, supra note 30 at 507; Grasso supra note 10 at 39. See Walsh supra note 1
at 47.
263 See generally Wolf, supra note 53 at 281; Capriotti, supra note 30 at 507; Grasso supra note 10 at 39.
265 Capriotti, supra note 30 at 496.
266 Id.
267 See Wolf, supra note 53 at 281; Capriotti, supra note 30 at 507; Grasso supra note 10 at 39.
268 FCC supra note 37 at Radio Frequency Safety.
269 Capriotti, supra note 30 at 507.

32
The largest issue facing cell phone plaintiffs, with no fault to their own, is the limited
amount of long term epidemiological evidence.270 Given the limited available information and
the public, scientific, and judicial outcry for further investigation, courts should reassess their
application of expert admissibility standards. The current pro-defendant court has effectively
stalled cell phone litigation by utilizing Daubert to exclude all causation evidence supporting a
link between cell phone radiation and cancer.271 Similar trends developed in the Agent Orange
and Bendectin litigations where little epidemiological evidence was available.272
1. Comparing the Agent Orange, Bendectin, and Cell Phone Litigations
Plaintiffs in cell phone litigation are facing a similar situation that plaintiffs did in Agent
Orange .273 In the Agent Orange litigation, Judge Weinstein dismissed the plaintiffs’ causation
evidence, which included epidemiological, animal, and industrial studies.274 Judge Weinstein
declared that epidemiological studies were “the only useful studies having any bearing on
causation.”275 Judge Weinstein’s endorsement of epidemiological studies consequently rendered
the plaintiffs’ animal and industry studies inadmissible.276 Judge Weinstein asserted that the
animal studies were not helpful to the plaintiffs because the studies involved different biological
270 See Wolf, supra note 53 at 281; Capriotti, supra note 30 at 507; Grasso supra note 10 at 39.
272 See Lynch v. Merrell-National Laboratories, Division of Richardson-Merrell, Inc., 830 F.2d 1190 (1st Cir. 1987);
Richardson v. Richardson-Merrell, Inc., 649 F.Supp. 799 (D.C. Cir. 1986); In re “Agent Orange” Product Liability
Litigation, 611 F.Supp. 1223, 1231 (1985). Professor Michael Green identifies that the epidemiological record did
not fully develop until after the Agent Orange and Bendectin Litigations had concluded.Therefore, the plain tiffs
faced substantial,and in many cases fatal, barriers in proving causation.
273 Compare Reynard, 887 F.Supp. at 1509; Newman, 218 F.Supp.2d at 783; Ward, 478 S.E.2d at 466, with Lynch,
830 F.2d at 1197; Richardson, 649 F.Supp. at 803; In re “Agent Orange” Product Liability Litigation,611 F.Supp.
at 1231. Plaintiffs in the Agent Orange, Bendectin, and cell phone litigation have not been able to establish causation
either at summary judgment or in pretrial motions.
274 611 F.Supp. at 1231.
275 Id.
276 Id. Green, supra note 54 at 660.

33
species and the concentration levels of exposure were much higher in the studies.277 Due to the
limited available epidemiological evidence supporting the plaintiffs’ causation theories, Judge
Weinstein’s evidentiary ruling dealt a lethal blow to the plaintiffs’ cases in the Agent Orange
litigation.278 Judge Weinstein granted the defendant’s motion for summary judgment finding the
defendants’ substantially larger epidemiological record admissible.279 Following Agent Orange,
Judge Weinstein’s influence eventually spread to the Bendectin litigation.280
Similarly, the Benedectin litigation presented substantial causation and evidentiary
barriers to plaintiffs.281 In Oxendine v. Merrell Dow Pharmaceuticals, Inc., the trial court granted
the defendants’ motion for judgment notwithstanding the verdict and a new trial.282 On appeal,
the District of Columbia Court of Appeals reversed both of the trial court’s motions and
remanded the case to the trial court for reinstatement of the jury verdict in favor of the
plaintiffs.283 The Oxendine court found that the plaintiffs’ causation expert testimony was
admissible.284 The plaintiff’s expert’s conclusion was supported by structure activity
information,285 in vivo studies,286 in vitro studies,287 and epidemiological studies.288 The court in
Oxendine found that the plaintiff’s epidemiological evidence was admissible because his
277 Id. at 1241.
278 Id. at 1265.
279 Id.
280 Green, supra note 54 at 662. Professor Green claims that Judge Jackson’s evidentiary ruling in the Bendectin
litigation was directly influenced by Judge Weinstein’s Agent Orange opinion.
281 E.g.,Lynch v. Merrell-National Laboratories, Division of Richardson-Merrell, Inc., 830 F.2d 1190, 1197 (1st Cir.
1987); Richardson v. Richardson-Merrell, Inc., 649 F.Supp. 799, 803 (D.C. Cir. 1986).
282 Oxendine v. Merrell Dow Pharmaceuticals, Inc. 506 A.2d 1100, 1103 (D.C. 1986).
283 Id. at 1115.
284 Id. at 1108.
285 Id. at 1104. Structure activity information looks at the chemical structure of drugs in comparison to other drugs
with similar structures to determine what effect they will have in the body.
286 Id. at 1105. In vivo studies involve exposing animal fetuses to agents to measure the effects. The plaintiff’s
expert in Oxendine relied on in vivo rabbit studies.
287 Id. at 1107. In vitro studies are studies that expose human cells to agents.In vitro studies are frequently called test
tube studies.
288 Id. at 1104.

34
methodology was generally accepted in its area and the defendants’ epidemiological evidence
was subject to numerous errors.289
Although Oxendine ruled in favor of the plaintiff, subsequent case law in the Bendectin
litigation rejects following Oxendine demonstrating Judge Weinstein’s influence and a shift to a
pro-defendant court.290 In Richardson v. Richardson-Merrell, Inc., District Judge Jackson
granted the defendant’s motion for judgment n.o.v. or a new trial following a jury verdict in the
plaintiff’s favor.291 Judge Jackson relied heavily on epidemiological evidence.292 Judge Jackson
found that the plaintiff’s epidemiological studies could not establish causation in isolation or in
the aggregate.293 Further, Judge Jackson stated that the defendants’ epidemiological evidence,
which was supported by numerous governmental studies, demonstrated that Bendectin had been
reduced to a mere superstition.294 Following Judge Jackson’s opinion in Richardson, the United
States Court of Appeals for the First Circuit, in Lynch v. Merrell-National Laboratories, affirmed
the district court’s finding that the plaintiff’s in vivo and in vitro studies were insufficient to
establish causation during summary judgment.295 The First Circuit established that the in vivo
and in vitro studies were insufficient to establish causation without conclusive epidemiological
evidence.296 Thus, the courts adopted Judge Weinstein’s epidemiological causation evidence
requirement in Bendectin litigation.297
289 Id. at 1111-13. The Oxendine court reversed the trial court’s finding by viewing the evidence as a whole and
reinstated the jury verdict.
290 See Lynch v. Merrell-National Laboratories, Division of Richardson-Merrell, Inc., 830 F.2d 1190, 1194 (1st Cir.
1987); Richardson v. Richardson-Merrell, Inc., 649 F.Supp. 799, 802-03 (D.C. Cir. 1986).
291 Richardson, 649 F.Supp. at 804.
292 Id. at 801-03.
293 Id. at 802.
294 Id. at 803.
295 Lynch, 830 F.2d at 1194.
296 Id.
297 See Lynch v. Merrell-National Laboratories, Division of Richardson-Merrell, Inc., 830 F.2d 1190, 1194 (1st Cir.
1987); Richardson v. Richardson-Merrell, Inc., 649 F.Supp. 799 (D.C. Cir. 1986).

35
The trends that developed in the Agent Orange and Bendectin litigations appear to be
developing in the current cell phone litigation.298 In Reynard, the United States District Court for
the Middle District of Florida held that “strong inferential data” based on a congressional
subcommittee report, animal, and human brain studies were insufficient to establish causation in
the absence of reliable epidemiological evidence.299 Similarly in Motorola v. Ward, the plaintiff
failed to provide any statistical correlation between cell phone radiation and cancer during
summary judgment.300 Finally in Newman v. Motorola, the court excluded all of the plaintiff’s
animal studies because the causation evidence was not supported by reliable epidemiological
evidence.301 Just as Judge Weinstein raised the skepticism to plaintiff’s causation experts in the
Agent Orange trials to exclude all causation epidemiological evidence, judges in the cell phone
litigation have adopted similar practices.302
2. Agent Orange and Bendectin May Offer Insight into the Cell Phone Litigation
Stalemate
Given the limited available causation evidence, judicial reform may help curtail the
effects of the substantial evidentiary and causation barriers that plaintiffs currently face in cell
phone litigation. Scholarly commentary suggesting judicial reform in the Agent Orange and
Bendectin litigations is relevant and applicable to cell phone litigation because courts require
analogous epidemiological evidence to establish causation.303Additionally, Agent Orange and
298 Compare Reynard v. NEC Corp., 887 F.Supp. 1500, 1507 (M.D. Fla. 1995); Newman v. Motorola, Inc., 218
F.Supp.2d 769, 774-82 (D. Md. 2002); Motorola Inc. v. Ward, 478 S.E.2d 465, 466 (Ga. Ct. App.1997), with
Lynch, 830 F.2d at 1194; Richardson,649 F.Supp. at 799; In re “Agent Orange” Product Liability Litigation, 611
F.Supp. 1223, 1231 (1985).
299 Reynard, 887 F.Supp. at 1507.
300 Ward, 478 S.E.2d at 466.
301 Newman, 218 F.Supp.2d at 774-82.
302 Compare 887 F.Supp. at 1507; 218 F.Supp.2d at 774-82; 478 S.E.2d at 466; with 830 F.2d at 1194; 649 F.Supp.
at 803; In re “Agent Orange” Product Liability Litigation, 611 F.Supp. at 1231.
303 E.g., Compare 887 F.Supp. at 1507; 218 F.Supp.2d at 774-82; 478 S.E.2d at 466, with 830 F.2d at 1194; 649
F.Supp. at 803; 611 F.Supp. at 1231.

36
Bendectin plaintiffs dealt with similar problems finding sufficient causation evidence, since the
epidemiological record in Agent Orange and Bendectin did not develop until after the majority of
litigation had been completed.304 Thus, cell phone, Agent Orange, and Bendectin plaintiffs were
all confronted with similar tasks of proving causation with inadequate epidemiological causation
evidence.305
First, courts appear to be utilizing similar evidentiary screening methods that were used
in the Agent Orange and Bendectin litigations in cell phone litigation.306 Similar to the effects
seen in cell phone litigation,307 the screening methods adopted in Agent Orange and Bendectin
effectively excluded the vast majority of the plaintiffs’ causation evidence.308 Professor Michael
Green 309 disagrees with the methods used by Judge Weinstein and the Bendectin courts and
suggests that future toxic tort cases should avoid following the Agent Orange and Bendectin
courts.310 Professor Green warns courts that they should avoid following the Agent Orange and
Bendectin litigations because they were sui generis311 and there are numerous negative
304 Green supra note 54 at 677.
305 Compare 887 F.Supp. at 1507; 218 F.Supp.2d at 774-82; 478 S.E.2d at 466, with 830 F.2d at 1194; 649 F.Supp.
at 799; 611 F.Supp. at 1231.
306 Green, supra note at 680.
307 Compare Reynard v. NEC Corp., 887 F.Supp. 1500, 1507 (M.D. Fla. 1995); Newman v. Motorola, Inc., 218
F.Supp.2d 769, 774-82 (D. Md. 2002); Motorola Inc. v. Ward, 478 S.E.2d 465, 466 (Ga. Ct. App.1997).The
plaintiffs animal and epidemiological studies were found inadmissible in Reynard and Newman.
308 Lynch v. Merrell-National Laboratories, Division of Richardson-Merrell, Inc., 830 F.2d 1190, 1194 (1st Cir.
1987); Richardson v. Richardson-Merrell, Inc., 649 F.Supp. 799, 799 (D.C. Cir. 1986); In re “Agent Orange”
Product Liability Litigation, 611 F.Supp. 1223, 1231 (1985).
309 Green, supra note 54 at 674.
310 Id.
311Id. Professor Green states that both the Agent Orange and Bendectin litigations were unique. Green argues that
Judge Weinstein’s methods in his Agent Orange opinion should not be followed because he disposed ofthe opt out
plaintiffs’ cases to uphold his previous settlement ruling as fair. ProfessorGreen asserts that Judge Weinstein’s opt
out ruling was self serving and the plaintiffs were doomed to fail before the litigation began.As to Bendectin,
Professor Green notes that the methods used were inadequate because the epidemiological record did not become
rich until a decade after the litigation and the Bendectin latency periods were substantially shorterthan most toxic
tort injuries, which made epidemiological studies more feasible.

37
implications on future toxic tort cases.312 However, cell phone plaintiffs are still confronted the
same screening devices that were instituted by the Agent Orange and Bendectin courts.313
The impact of Judge Weinstein’s endorsement of epidemiological evidence as being the
only valid causation evidence is still apparent in the current cell phone litigation.314 Professor
Green stated that the effect of Judge Weinstein’s epidemiologic evidence requirement could have
adverse impacts on future toxic tort plaintiffs.315 Professor Green asserted that an
epidemiological requirement makes it inherently more difficult on plaintiffs because
epidemiological research has not been conducted on the vast majority of toxic substances.316
Therefore, imposing an epidemiological requirement will effectively screen out an abundant
amount of cases.317 Reynard, Ward, and Newman all failed to establish causation because
sufficient long term epidemiological evidence on cell phone radiation did no exist.318 Thus,
Reynard, Ward, and Newman were subsequently screened out by an epidemiological
requirement.319
Professor Green suggests that trial judges adopt a standard that requires plaintiffs to
prove causation by the preponderance of the available evidence.320 Professor Green explains that
this standard will allow plaintiffs to establish causation with a wider variety of causation
312 Id. at 674-681. Professor Green states that numerous cases will be screened out because of insufficient causation
evidence. Further, the epidemiological requirement will reduce the amount of research conducted in the area of
chemical comparison and animal studies.
313E.g., Reynard v. NEC Corp., 887 F.Supp. 1500, 1508; Newman v. Motorola, Inc., 218 F.Supp.2d 769, 772 (D.
Md. 2002); Motorola Inc. v. Ward, 478 S.E.2d 465, 465 (Ga. Ct. App. 1997). Plaintiffs are still facing a per se
epidemiological requirement and alternative forms of evidence are inadmissible.
314 See Reynard, 887 F.Supp. at 1508; Newman, 218 F.Supp.2d at 783; Ward, 478 S.E.2d at 466.
316 Id. at 680.
317 Id.
318 E.g., Reynard v. NEC Corp., 887 F.Supp. 1500, 1508; Newman v. Motorola, Inc., 218 F.Supp.2d 769, 772 (D.
Md. 2002); Motorola Inc. v. Ward, 478 S.E.2d 465, 465 (Ga. Ct. App. 1997).
319 E.g., Reynard, 887 F.Supp. at 1508; Newman, 218 F.Supp.2d at 772; Ward, 478 S.E.2d at 466.

38
evidence in the absence of strong epidemiological evidence.321 The advantages to Professor
Green’s standard are its broad scope and flexibility.322 Therefore, if a toxic tort does not have a
solid epidemiological record, then the plaintiff has a limitless amount of evidence to consider for
establishing causation.323 The disadvantage to Professor Green’s standard is that it could open up
the court to plaintiffs relying on speculative and attenuated evidence, which would waste judicial
resources.324 However, Professor Green’s rationale is that the unavailability of epidemiological
evidence in toxic tort cases is no parties’ fault and the preponderance of the available evidence
standard seems in line with the traditional notions of the American civil justice system.325
Second, courts and legal scholars have questioned trial judges’ abilities to fully
comprehend complex expert evidence.326 In Daubert v. Merrell Dow, the Supreme Court
appointed federal judges to be the primary evidentiary gate keeper in trials.327 Although the
Daubert Court stated that they were confident that trial judges were capable undertaking the gate
keeping role,328 the Court also noted that it was inevitable that trial judges will on occasion
“prevent the jury from learning of authentic insights and innovations.”329 In Daubert on remand,
the United States Court of Appeals for the Ninth Circuit commented that they had the heady task
determining what evidence amounted to “good science” when they are largely untrained in those
disciplines and are certainly no match for the expert offering the evidence.330 As a consequence,
321 Id. at 680.
322 Id. at 681.
323 Id.
324 Id.
325 Id. at 681.
326 Daubert v. Merrell Dow, Inc., 509 U.S. 579, 596 (1993), Green, supra note 54 at 681.
327 Daubert, 509 U.S. at 592.
328 Id. at 593.
329 Id. at 597.
330 Daubert v. Merrell Dow, Inc., 43 F.3d 1311, 1316 (9th Cir. 1995)(on remand).

39
the Supreme Court and the Ninth Circuit’s reservations in Daubert raise the issue of whether trial
judges can accurately screen complex evidence.331
Legal scholars also question the ability of trial judges to adequately address complex
evidentiary issues.332 Professor Michael Green questioned trial judges’ ability to accurately
comprehend complex statistical analysis in the Agent Orange and Bendectin litigations.333
Professor Green examined Judge Weinstein’s assessment of the plaintiffs’ epidemiological
record in the Agent Orange litigation.334 Professor Green found that the judicial scrutiny applied
by Judge Weinstein would require him to fully understand the validity of the methodology, the
errors associated with the methods, and its relation to the biological factors that were being
tested.335 Further, Professor Green asserts that Judge Weinstein would also need to be able to
translate the statistical analysis to the preponderance of the evidence standard.336 Professor Green
concluded that it is doubtful to assume that a routine trial judge would have the expertise or
familiarity with those statistical concepts to be able to make an adequate finding.337
In addition, scholarly commentary indicates that issues of judge competency are
compounded when cases are disposed during pre trial motions.338 The Agent Orange, Bendectin,
and cell phone cases were all disposed of during summary judgment or pretrial motions because
the plaintiffs were unable to establish causation.339 Professor Green remarked that toxic tort
331 E.g. 509 U.S. at 592; Id. at 1316(on remand); Green, supra note 54 at 681.
332 E.g., Green, supra note 54 at 681.
333 Id.
334 Id.
335 Id.
336 Id.
337 Id. at 681.
338 Id. at 681. Wolf, supra note 53 at 281.
339 See Reynard v. NEC Corp., 887 F.Supp. 1500 (M.D. Fla. 1995); Newman v. Motorola, Inc., 218 F.Supp.2d 769
(D. Md. 2002); Motorola Inc. v. Ward, 478 S.E.2d 465 (Ga. Ct. App. 1997); Lynch v. Merrell-National
Laboratories, Division of Richardson-Merrell, Inc., 830 F.2d 1190 (1st Cir. 1987); Richardson v. Richardson-

40
judges’ tasks are made more difficult when they are asked to digest complex statistical analysis
before trial.340 He contends trial judges are being asked to make findings on complicated issues
without the benefit of having a full hearing to explain the issues.341 As a result, many legal
scholars suggest curtailing the trial judge’s gate keeping role and letting juries determine
complex evidentiary issues by the preponderance of the evidence standard.342
Third, courts disposing cell phone litigation cases at summary judgment and pre trial
strips the jury’s role of being the ultimate finders of fact.343 The Agent Orange and Bendectin
litigations demonstrate that trial judges’ evidentiary rulings during pretrial motions and summary
judgment were ultimately dispositive to the vast majority of plaintiffs’ cases.344 Professor
Michael Green contends that the role of the jury is undermined when trial judges reject a
plaintiff’s causation evidence without the benefit of a trial.345 Due to the complex and limited
nature of evidence in certain toxic torts, Professor Green maintains that trial judges should
refrain from rejecting plaintiffs’ causation evidence at pretrial and let the case proceed to trial
where the evidence will be judged under the preponderance of the evidence standard.346 Thus,
allowing toxic tort plaintiffs to advance to trial will allow the jury to perform its role as the trier
of fact.347
Merrell, Inc., 649 F.Supp. 799 (D.C. Cir. 1986); In re “Agent Orange” Product Liability Litigation, 611 F.Supp.
1223, 1231 (E.D.N.Y. 1985).
341 Green, supra 54 at 681.
342 See Id. at 681; Wolf, supra note 53 at 280.
343 See Green, supra note 54 at 681; Wolf, supra note 53 at 279.
344 See Lynch, 830 F.2d at 1197; Richardson,649 F.Supp. at 803; In re “Agent Orange” Product Liability
Litigation,611 F.Supp. at 1231.
346 Id. at 698.
347 Id. at 674, 698.

41
Scholarly commentary in area of cell phone litigation shows support for Professor
Green’s suggestion that plaintiffs should have the opportunity to reach trial.348 One author asserts
that Daubert’s liberalization of the standards effectively transformed trial judges from
gatekeepers to arbitrators.349 This author argues that the sole discretion to exclude scientific
evidence should not be given to the trial judge.350 Rather, the ability to exclude disputed
scientific evidence should be given to the jury.351 Once given to the jury, they will measure the
validity of the evidence “based on its weight and not its admissibility.” 352 His rationale is that
the lack of conclusive and adequate long term epidemiological evidence heightens these issues in
cell phone litigation.353 Thus, legal scholars support cell phone plaintiffs advancing to trial to
have their evidence judged under the preponderance of the evidence standard.354
3. Application of the Preponderance of Available Evidence Standard
Although it may be overly presumptuous to assume that courts will reform their standards
for cell phone litigation, the observations and theories suggested by legal scholars in the
Benedectin, Agent Orange, and cell phone areas should help balance the effects of the current
pro-defendant court. Thus far in cell phone litigation, plaintiffs have been unsuccessful proving
causation and advancing to trial.355 In addition, the current long term epidemiological record on
cell phone radiation is inadequate at best.356 The current stalemate merits judicial reform.
349 Id. at 280.
350 Id.
352 Id.
353 Id. at 283.
354 Id. at 280-81.
355 E.g., Reynard v. NEC Corp., 887 F.Supp. 1500 (M.D. Fla. 1995); Newman v. Motorola, Inc., 218 F.Supp.2d 769
(D. Md. 2002); Motorola Inc. v. Ward, 478 S.E.2d 465 (Ga. Ct. App. 1997).

42
Trial judges should allow cell phone plaintiffs to proceed to trial where disputed
causation evidence will be examined by the jury under a preponderance of the available evidence
standard. The new standard will directly offset the development of the epidemiological evidence
requirement, heightened statistical scrutiny placed on cell phone plaintiffs, and the courts’
resurrection of the general acceptance test. In application, the preponderance of the available
evidence standard should balance the effects of the current pro-defendant court by tailoring
inapplicable portions of the Daubert standard and giving plaintiffs wider latitude to introduce
expert causation evidence. The lack of epidemiological evidence and the uncertainty of whether
trial judges are able to properly understand complex statistical analysis are two justifications for
adopting this flexible standard. Until sufficient reliable independent epidemiological studies are
produced, the preponderance of the available evidence standard should be utilized in cell phone
litigation.
First, the application of the preponderance of the available evidence standard will
invalidate the per se epidemiological evidence requirement. The preponderance of the evidence
standard nullifies the epidemiological evidence requirement by broadening the scope of
admissibility for plaintiffs. This standard provides plaintiffs with wider evidentiary latitude to
support their causation theories since reliable epidemiological causation evidence is currently
unavailable. Under the preponderance of the available evidence standard, trial judges are to
consider evidence that is currently available to both parties, rather than a concrete preexisting set
of rules that requires non-existent evidence. The new standard will expose juries to a wider
variety of epidemiological, animal, in vitro, and in vivo studies. Further, the admission of
alternative forms of causation evidence may encourage additional epidemiological research.
Thus, the preponderance of the available evidence standard will allow plaintiffs to support their

43
causation theories with previously inadmissible evidence, which will hopefully encourage
additional epidemiological research.
Opponents to the adoption of the preponderance of the available evidence standard might
argue that using Bendectin as a model for judicial reform is inappropriate since the anti-nausea
medicine has been proven to be safe.357 However, it is important to emphasize that the methods
adopted during the Bendectin litigation would have screened out the plaintiffs’ cases regardless
of the outcome of after the fact research. A key limitation of the preponderance of the available
evidence standard is that its application is to be utilized only in the absence of strong
epidemiological evidence. The purpose of the new standard is to balance the inadequacies that
have developed during a period of scientific uncertainty. The intent of this standard is self
serving. The preponderance of the available evidence standard should encourage additional
research in the area of the long term effects of cell phone radiation. Once the necessary evidence
is produced, the preponderance of the available evidence standard will render itself dormant.
Second, the preponderance of the available evidence standard precludes trial judges from
overly scrutinizing the statistical analysis of the plaintiff’s causation evidence until after trial.
The preponderance of the available evidence standard is not to be understood to completely strip
judges of their gate keeping role. Rather, the judge is required to act as the evidentiary
gatekeeper during and after trial. Delaying the evidentiary gate keeping role of judges until trial,
ensures that judges will be fully informed of the plaintiffs’ causation theories. One might
question whether attenuated or speculative evidence under the preponderance of the available
evidence standard will inappropriately influence juries. However, trial judges, cross examination,
357 Lynch v. Merrell-National Laboratories, Division of Richardson-Merrell, Inc., 830 F.2d 1190 (1st Cir. 1987);
Richardson v. Richardson-Merrell, Inc., 649 F.Supp. 799 (D.C. Cir. 1986). Both Lynch and Richardson reduced
Bendectin claims to mere superstitions.

44
and juries guarantee evidentiary validity under the preponderance of the available standard.
During trial, judges will be able to fully examine the validity of the causation evidence during
direct and cross examination. Defendants will have the opportunity to test the experts’
methodology in front of the judge and jury through cross examination. If the trial judge finds that
attenuated or speculative evidence wrongly influenced the jury, the judge is not without redress.
After the jury verdict, the judge still has the power to grant a judgment as a matter of law358 or
order a new trial in the alternative.359 Hence, the proper evidentiary safeguards are in place to
support the adoption of the preponderance of the available evidence standard.
Third, the preponderance of the available evidence standard balances the inadequacies of
the current pro-defendant court by tailoring the inapplicable portions of the Daubert standard.
The nature of the causation evidence currently required to establish causation leaves certain
portions of the Daubert inapplicable. The most recent long term epidemiological evidence in cell
phone litigation has only been attempted by two groups. Further, epidemiological evidence
sought in cell phone litigation is tedious, time consuming, and slow to develop.360 Given the
limited amount of epidemiological evidence and time, the Daubert standards of testing the
methodology, peer review, replication, and general acceptance are largely limited and may be
wholly inapplicable to cell phone epidemiological evidence.361 Also, the epidemiological
evidence in cell phone litigation is relatively new. The amount of time needed to review and
replicate the available epidemiological evidence in cell phone litigation might not be feasible
before trial and especially during pretial. Thus, the standard of preponderance of the available
358 See generally FED. R. CIV. P. 50.
359 See generally FED. R. CIV. P. 59.
360 See Green, supra note 54 at 674.
361 See generally Newman v. Motorola, Inc., 218 F. Supp.2d 769, 773 (D. Md. 2002) (quoting, Daubert v. Merrell
Dow, Inc., 509 U.S. 592-594 (1993)).

45
evidence balances the effects of inapplicable Daubert standards by allowing the jury to test the
validity of the evidence by its weight, rather than judging its admissibility under the
predetermined Daubert standards.
V. Conclusion
As of today, cell phone plaintiffs are at the mercy of scientists and the pro-defendant
court. Long term epidemiological evidence linking cell phone radiation to the development of
malignant tissue would be most beneficial to plaintiffs. Until this research is produced, judicial
reform will balance the effects of the pro-defendant trends, encourage further research, and give
plaintiffs an avenue for redress. Although cell phone plaintiffs need to be realistic, the proposals
set forth in this article should loosen the 25 year grip that Agent Orange and Bendectin have on
today’s causation theories in our toxic tort system.

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