Claims for Injuries Allegedly Related to Cell Phone Usage Found Preempted

Recently, the Third Circuit affirmed the dismissal of a plaintiff’s complaint seeking damages for injuries as a result of cell phone usage on the ground that his claims were preempted by Federal Communications Commission (“FCC”) regulations. Farina v. Nokia, Inc., No. 08-4034, 2010 WL 4138502 (3d Cir. Oct. 22, 2010) [PDF]. In that case, the Plaintiff, Francis Farina (“Farina”), brought a class action against numerous cell phone manufacturers and retailers. Farina asserted that cell phones were unsafe to be operated without headsets because, without a headset, the user is exposed to dangerous amounts of radio frequency (“RF”) radiation and current marketing of cell phones as safe violated state law. The FCC regulations at issue adopted a maximum absorption rate that measured the amount of energy absorbed in human tissue.

In reviewing the decision of the District Court, the Third Circuit discussed the three types of federal preemption of state law — express preemption, field preemption, and conflict preemption. First, the Third Circuit found no express preemption by 47 U.S.C. Section 332(c)(7)(B)(iv) that provided the following: “No State or local government or instrumentality thereof may regulate the placement, construction, and modification of personal wireless service facilities on the basis of the environmental effect of radio frequency emissions to the extent that such facilities comply with the Commission’s regulations concerning such emissions.” (emphasis added). Defendants argued that the term “facilities” included alternations to cell phones. The Third Circuit disagreed finding that “facilities” related to infrastructures and not transient cell phones, concluding no express preemption.

Next, the Third Circuit found no field preemption stating that “[w]hile the FCC may have ‘primacy over the areas of technical standard and competitive market structure for cellular service . . . neither Congress nor the FCC has evinced an intent to occupy the entire field.”

Finally, however, the Third Circuit found conflict preemption accepting Defendants’ argument that “Farina’s suit would erect an obstacle to the accomplishment of the objectives of Congress.” Farina’s claims were based on alleged false and misleading statements that cell phones were safe to use without a headset. The Third Circuit pointed out that in order to establish his claims, “Farina must show that [the FCC] standards are inadequate that they are insufficiently protective of public health and safety.” That said, the Third Circuit was tasked with determining “whether suits challenging the adequacy of the FCC’s RF regulations are preempted.” Defendants argued that Farina’s suit conflicts with the FCC regulations because a finding of liability would “upset the FCC’s delicate balancing of efficiency and uniformity with the health and safety of the public.” Permitting a jury to find that cell phones that meet the FCC standards are nevertheless unreasonably dangerous would upset its objectives and balance, and thus the Third Circuit decided such suits are preempted.

The Drug and Device Law blog offers an interesting discussion and analysis of the decision here. It appears that this is another in a series of cases in which the courts try to make sense of conflict preemption in the wake of Wyeth v. Levine, 129 S. Ct. 1187 (2009).

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