Murray v. Motorola, Inc., No. 07-CV-1074.

• Citation: 982 A.2d 764
• Decision Date: 29 October 2009
• Docket Number: No. 07-CV-1076.,No. 07-CV-1075.,No. 07-CV-1079.,No. 07-CV-1078.,No. 07-CV-1077.,No. 07-CV-1074.
• Parties: Michael Patrick MURRAY, et al., Appellants, v. MOTOROLA, INC., et al., Appellees.
• Court: D.C. Court of Appeals

982 A.2d 764

Michael Patrick MURRAY, et al., Appellants, v. MOTOROLA, INC., et al., Appellees.

No. 07-CV-1074.

No. 07-CV-1075.

No. 07-CV-1076.

No. 07-CV-1077.

No. 07-CV-1078.

No. 07-CV-1079.

District of Columbia Court of Appeals.

Argued January 23, 2009.

Decided October 29, 2009.

As Amended on Rehearing December 10, 2009.

Mayer Morganroth, with whom Jeffrey B. Morganroth and Joanne L. Suder were on the brief, for appellants.

Andrew G. McBride, Washington, with whom Joshua S. Turner was on the brief, for appellees Cellco Partnership d/b/a Verizon Wireless, Bell Atlantic Mobile, Inc., Verizon Wireless, Inc., Verizon Wireless Personal Communications LP f/k/a Primeco Personal Communications LP, Verizon Communications Inc., Vodafone Group Plc, Nokia Inc, and Western Wireless LLC. The following counsel were also on the brief: Jennifer G. Levy, Michael D. Jones, Garrett B. Johnson, Terrence J. Dee, and Michael B. Slade for appellee Motorola, Inc.; Jeffrey J. Lopez, Seamus C. Duffy, Susan M. Roach, and Maresa H. Torregrossa for appellees AT & T Corp., AT & T Wireless Services, Inc., Cingular Wireless LLC, BellSouth Cellular Corp., SBC Communications, Inc., SBC Wireless LLC, AB Cellular Holding, LLC, Dobson Communications Corp., and Dobson Operating Co., LLC; Thomas C. Watson and Curtis S. Renner for appellees Cingular Wireless, LLC, SBC Communications, Inc., SBC Wireless LLC, and AB Cellular Holding, LLC; John H. Beisner, Matthew Shors, David Mortlock, Jane Fugate Thorpe, Scott A. Elder, Paul F. Strain, and M. King Hill, III for appellees Cellco Partnership d/b/a Verizon Wireless, Bell Atlantic Mobile, Inc., Verizon Wireless, Inc., Verizon Wireless Personal Communications LP f/k/a Primeco Personal Communications LP, Verizon Communications Inc., and Vodafone Group Plc; Paul S. Schleifman, J. Stan Sexton and Michael D. Moeller for appellee Sprint Corporation; Marcus Eyth, Paul Vishny, and Paul E. Freehling for appellee Telecommunications Industry Assoc.; Mark H. Kolman, Deborah Goldstock Ringel, and Kenneth B. Trotter for appellee Audiovox Communications Corporation; Howard D. Scher, Cathleen Coyle McNulty, and John Korns for appellee Cellular One Group; Thomas R. Kline, L. Eden Burgess, and Charles Perry for appellee Western Wireless LLC; Robert B. Green for appellee Cellular Telecommunications and Internet Association; Steven M. Zager, Michele A. Roberts, Lance T. Lackey, and Ashley L. Rogers for appellee Nokia, Inc.; Dwight D. Murray and Francis A. Citera, for appellees Sony Electronics Inc. and Qualcomm Incorporated; Lauren S. Reeder, and Jameson B. Carroll for appellee American National Standards Institute; G. William Austin and Stephen E. Baskin for appellee BellSouth Corporation; Ralph A. Taylor, Jr. for appellee Institute of Electrical and Electronics Engineers, Incorporated; and Gare Smith, Sarah Altschuller, Joe Cyr, Scott Reynolds and Eric Statman for appellee Vodafone Group Plc sued as Vodafone Airtouch Plc.

Sarang Vijay Damle, United States Department of Justice, with whom Mark B. Stern, United States Department of Justice, Matthew B. Berry, General Counsel,

Federal Communications Commission, Jeffrey S. Bucholtz, Acting Assistant Attorney General at the time the brief was filed, and Jeffrey A. Taylor, United States Attorney at the time the brief was filed, were on the amici curiae brief, in support of appellees.

Before KRAMER, FISHER and THOMPSON, Associate Judges.

THOMPSON, Associate Judge:

This appeal presents the question of whether federal law preempts any or all of plaintiffs'/appellants' numerous causes of action for damages against a group of cellular-telephone manufacturers, distributors, promoters, sellers, service providers, industry associations, and standards-setting entities. The Superior Court ruled that all of the claims are barred on the basis of both express and implied federal preemption. For the reasons that follow, although we find no express preemption, we conclude that federal law does impliedly preempt plaintiffs' claims insofar as they seek to hold defendants liable for bodily injuries from cell phones that met the radio frequency ("RF") radiation standard adopted by the Federal Communications Commission (the "FCC"). At the same time, we conclude that insofar as plaintiffs' claims are premised on allegations that they were injured through use of cell phones that did not meet the FCC standard, the claims are not federally preempted. We also conclude that plaintiffs' claims alleging violations of the District of Columbia Consumer Protection Procedures Act ("CPPA"), D.C.Code § 28-3904 (2001), may survive the preemption challenge. We therefore affirm in part and reverse in part the judgment of the Superior Court dismissing the complaints, and we remand for further proceedings consistent with this opinion.

I.

Through six separate complaints filed in November 2001 or February 2002 ("the Complaints"), plaintiffs/appellants (hereinafter, "plaintiffs")¹ sued defendants/appellees (collectively, "Motorola et al.," "defendants," or the "cell-phone companies"), alleging that plaintiffs suffered illness and injury (including brain cancer or tumors), or loss of consortium, as a result of using hand-held cellular telephones produced, sold, or promoted by defendants (hereinafter "cell phones," "mobile phones," or "hand-held phones"). The Complaints assert virtually identical causes of action for (1) intentional fraud and misrepresentation; (2) negligent misrepresentation; (3) strict product liability; (4) failure to warn and defective manufacture and design; (5) negligence; (6) gross negligence; (7) breach of express warranty; (8) breach of implied warranty; (9) conspiracy; (10) violations of the CPPA²; (11) civil battery; and, except for the Schofield complaint, (12) loss of consortium. Motorola et al. thereafter attempted to remove the suits from the District of Columbia Superior Court, where they were filed, to the United States District Court for the District of Maryland. See In re Wireless Tel. Radio Frequency Emissions Prods. Liab. Litig., 327 F.Supp.2d 554 (D.Md.2004) ("Wireless"). The District Court (the Honorable Catherine Blake) found no basis for removal³ and remanded to the Superior Court. See id. at 559, 571.

Upon remand to the Superior Court, defendants filed a motion to dismiss, arguing that, because plaintiffs' claims are preempted by federal law, plaintiffs had failed to state a claim upon which relief could be granted. The FCC participated as amicus curiae, likewise arguing that plaintiffs' claims must fail on preemption grounds. The Superior Court consolidated the six suits for purposes of oral argument. In a comprehensive August 24, 2007, memorandum opinion and order ("Order"), the motions judge, the Honorable Cheryl Long, dismissed the Complaints with prejudice, ruling that the claims set forth in them are precluded under the doctrines of express preemption, conflict preemption, and field preemption. Our review of the dismissals is de novo. See Portuguese Am. Leadership Council of the U.S., Inc. v. Investors' Alert, Inc., 956 A.2d 671, 676 (D.C.2008).

II.

We begin with a close look at the Complaints that commenced this litigation. Plaintiffs allege that Motorola et al. have long been aware of numerous studies revealing that the radio frequency emissions ("RF emissions" or "RF radiation") from cell phones have both thermal and non-thermal effects that are severely harmful to human health. For example, according to plaintiffs, the studies leave room for no dispute that the thermal effects of RF radiation can cause tissue destruction, a precursor to cancer. Deliberately suppressing such studies, plaintiffs allege, defendants "set about to co-op [sic] the federal agencies which had the jurisdiction to force the industry to prove the safety of cell phones." According to plaintiffs, the cell-phone companies ultimately succeeded in "manipulat[ing] the research" of the American National Standards Institutes ("ANSI") and in causing cell phones initially to be "excluded from any testing, compliance, or monitoring by any safety standard, government agency, or regulatory body." Eventually (in 1992), ANSI did recommend specific absorption rate [SAR]⁴ limits applicable to cell phones, and, effective August 1, 1996, the FCC adopted a standard based in part on the 1992 ANSI recommendations.⁵ But, plaintiffs complain, the FCC has "allowed cell phone manufacturers to self certify their cell phones as within the SAR limits" even though "SAR results can be easily manipulated." As a result, the Complaints continue, the SAR values that defendants report to the FCC during self-certification "are below actual values" and "actual values exceed the SAR limits established by the FCC."⁶ The Complaints further allege that federally adopted SAR limits are inadequate in any case because they do not take into account "`hot spots'⁷ created by the convergence of airwaves."

Plaintiffs further charge that "[d]efendants were aware of numerous solutions that could virtually eliminate the health hazards of radiation from cell phones such as shielding, antenna phasing, use of low reluctance material pattern, shrouds, canting etc." The Complaints assert that, unwilling to sacrifice profits, defendants neither adopted these safety measures nor warned cell-phone users of potential risks or methods that could be used to minimize their exposure to radiation and to avoid injury. Instead, the Complaints allege, defendants led the public in general and plaintiffs in particular to believe that cell phones "do not pose any risk of harm to the user whatsoever" and that "there is absolutely no risk of harm associated with the use of cell phones."

Judge Long found that the gravamen of plaintiffs' Complaints is that the cell phones that defendants manufactured or promoted were unsafe because they emitted a dangerous level of RF radiation, notwithstanding any FCC approval of the phones. Through their...