Roger writing the LAWmag
Jan 2014

World's Greatest Workers' Compensation or Tort Claim? Do Cellphones = Increased Risk of Brain Tumor?

you won't see many neurologist, neurosurgeons or cell phone company employees with their cell phone directly on their ear. They're not that stupid: They know better

Although not necessarily with the pzazz of the US Surgeon General, still, from the popular Doctor Oz of Oprah show fame, the message does not come wrapped in government committee gobbledygook:

"Cell phones expose us to a form of electromagnetic radiation called radio-frequency (RF) energy. Scientists have suspected that this radiation might increase the risk of brain cell damage leading to tumors, and in 1995 they found this to be the case in rats.... An analysis of the most rigorous studies found convincing evidence linking the use of handheld phones to brain tumors, especially in users of a decade or longer.... One study shows that using a headset lowers radiation exposure eight-fold.

"Corded headsets can reduce any potential risk. These emit much less RF energy, and allow you to move the phone away from your body. "

To be fair to the record, Oz also notes that other studies find "no solid association between increasing cell phone use and brain tumor" but the choice of studies, my friend, is squarely on your shoulders, literally and figuratively. But his advice is to use corded headsets.

Early Returns

It has the early signs of being the largest mass tort claim ever - making Chernobly (1986), Exxon Valdez (1989) and Bhopal (1984) pale in comparison. Only the claims now being made against tobacco companies compare and even then, cigarettes are often sold with dire caveat emptor warnings on the packaging.

And if in fact the preliminary fears of some scientists are accurate, the causation finding could affect virtually every human being on the planet since 6-billion of the world's 7-billion people have cellular phones ("cellphones").

The genesis of the potential liability is, as it often is in product liability cases, to be found in medical journals. Hidden in the emerging medical jargon is the confirmation that the incidence of brain tumor (spelled tumour in Commonwealth jurisdictions) is up ... by 25%!

A 2011 article in the US Journal of Neuro-oncology:

"The annual incidence rate remained stable for malignant brain tumors but increased significantly for benign brain tumors. The incidence of brain tumors increased from 1985 to 2005 overall and for benign tumors, but not for malignant tumors."

At the same time, in May of 2011, the World Health Organization released this statement:

"The WHO International Agency for Research on Cancer (IARC) has classified radiofrequency electromagnetic fields as possibly carcinogenic to humans ... based on an increased risk for glioma, a malignant type of brain cancer, associated with wireless phone use."

The possible "before" pictureGiven the potential consequences for public health and the economy, this are pregnant words from a normally over-cautious United Nations agency.

In January of 2013, the American National Academy of Sciences released the results of a study suggests that when a cellphone is used, it creates:

"... hot spots from absorbed cellphone radiation".1

Even when idle, a cellphone periodially emits radition as it connects with a server to update the information it stores.

The basic facts are that the incidence of brain tumors has been rising in lockstep with cellphone use. In addition to this,consumers are being bombarded by the electromagnetic radiation emanating from other ubiquitous wireless devices.

Call it what you want - electromagnetic waves, pulses, fields, spectrum.... at the end of the cellphone, what Apple Inc., Samsung and Blackberry and others would have us put next to our ear so gaily, is a radiation-emitting device for which, to quote the WHO:

"A positive association has been observed between exposure to (wireless phone use) and cancer for which a causal interpretation is considered by the Working Group to be credible...."

Have the adverse health effects of electromagnetic pulses been sufficiently studied?  If there has been a decision made that the economic benefit outweighs the risk associated with this massive electromagnetic bombardment on each and every one of us, there is no record of that difficult decision anywhere except in the showcases of cellphone and stores which sell electronic goods. Is the population at-large serving as the cellphone industry's Petri dish?

The other fact that would never be ignored by a good class-action, mass tort lawyer  is the amount of money people are making off the manufacture and sale of cellphones. Profits, especially at this level, tends to blind the manufacturer to liability exposure. They see it as an issue of risk management - let's  enjoy the party while it lasts and if we get hit, we should have enough cash in the vault to fight it and pay any award off.  It's just the porice of doing business.

As Edward Coke said, corporations have no soul so don't expect any health-related concessions or warnings except those that may have been authored by a public relations guy and then only very reluctantly and only with real litigation on the horizon.

The sheer prevalence of cellphone use is as much a threat  as it is a shield to the  manufacturers and distributors since cellphones are a significant tool in today's economy. Ironically, the place cellphones have in today's economy is much like the inoperable brain tumor: if you took it out, you might kill the patient.

The "after" picture?The other issue which either detracts or assists in the  determination of cellphone risk is the prevalence of other electromagnetic sources such as Bluetooth devices and wireless generally: the wireless in your home or even in your children's school, and texting. When your celphone enters a low-frequency zone, that's where the radition really picks up.

Given the potential and the emerging fact that the rise in incidence of brain tumors coincides with the rise in the use of cellphones, is it up to each user to make the decision whether he or she wants to expose himself or herself to that risk? Even at that, is there a responsibility on the part of government to warn users of these risks? Some governments are starting to gently warn users about the risks of cellphone use in spite of discreet lobbying being done by the cellphone industry.

For the millions if not billions of cellphone users who use their cellphone in an employment context, is there any compensation available for the risk of brain tumor? Once the causation nexus is clearer on the MRI of tort law, employers may be the first to act not only to protect their exposure to liablity, but also to avoid the bankruptcy of their permanent disability insurance plan.

Is "Benign Tumor" an Oxymoron?

Some health professionals take issue with the distinction often made between a benign ("noncancerous") and a malignant tumor ("cancerous").  The argument is made is that all brain tumors are by definition growing and dangerous foreign objects. A malignant brain tumor is one that is cancerous or expected to grow fast; the benign could take years or decades to grow to the point where it affects motor skills or cognitive abilities.

A shield for the cellphone makers and distributors circa 2013, and in this, similar to tobacco consumption, is that most brain tumors take time to germanate and develop. Widespread use of cellphones is still a recent phenomena resulting in cautious statements from pathologists in this area, if not outright dismissal of the causation between brain tumors and cellphone use.

Most tumors are of the glioma variety so the increase in the number of brain tumors may suggest a stuggle between healthy glioma tissue and electromagnetic radiation - that the latter foments - fosters the genesis and growth of the former.

Benign simply means the tumor is growing at an unknown pace, or there are no symptoms,  or perhaps it cannot even be found on MRI (magnetic resonance imaging) even though swelling is apparent. The brain often reacts to even a benign tumor by swelling and the first symptom, an unexpected seizures. Thousands die if a first seizure strikes when the unsuspecting patient is behind the wheel when the lights are dimmed.

Simply, there is no room in the brain for foreign objects of any kind, even a small tumor. Benign tumors have an agenda: they like where they are and they tend to grow, maybe not today or next year but eventually, like a slow time bomb. They do not tend to stay the same size, shrink, shrivel or disappear.

The vast majority of brain tumors are benign but a brain tumor whether malignant or benign, remains a serious health risk. Try getting disability, travel or life insurance with a diagnosis of a benign brain tumor.

The natural reluctance of manufacturers to investigate and post advisories of such dramatic health risks associated with the use of their product is exacerbated by, if not protected by the challenge brain injuries generally and brain tumors specifically pose to the medical profession even in 2013. The marvelous but mysterious brain remains the medical profession's least-known body part.

An individual could have a large area of inflammation without the radiologist being able to pinpoint the actual tumor.  Even a small operation required to take a tissue sample for analysis by a pathologist, called a biopsy, is invasive as a surgeon has to go through brain tissue to get to the tumor and then take a grain of rice size piece of the tumor out. One can just imagine that the last hornet's nest to stir up would be a brain tumor.

Many areas of the brain are inoperable. Some tumors spread tentacles making chemotherapy or resection (the technical name of the operation which removes the tumor) pointless or only as a last-ditch procedure since it would likely cause  permanent cognitive damage to the patient.

The medical profession has an excellent handle on many sicknesses and diseases but not brain tumors.

In a nutshell, as Woody Allen often jokes about in his movies, dismissing the risk of a brain tumor is a decision that could kill you.

Go Get 'em!

The time-honored process which now appears to be in its genesis, is for medical studies to accumulate and reach a critical mass after which the manufacturer and government will start to pay close attention to the risk. Government will really start asking questions when the health costs associated with brain tumor treatment starts growing on hospital annual budgets or affecting gross domestic product.

From the cellphone industry, expect this familiar refrain:

"The risk of long-term use of mobile phones cannot be assessed with certainty until mobiles phones have been in use for several decades."

At some point, some lawyer or law firm will sense the moment to proceed with class-action litigation and they will become the quiet hero and lifesaver to so many consumers, even if they do make a few dollars in the process.

It may be some newly brain injured employee forced to use a cell phone all the time was able to link the cell phone use with his new terminal illness, brain cancer.


The next time you power up your iPhone, Galaxy or Blackberry and pump electromagnetic waves into and through your brain tissue, remember that you may be a plaintiff in the making, and hopefully before you have to see a a neurologist or visit the local cancer agency to be given an amended life expectancy.



Posted in Personal Injury and Tort Law

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