Days after a trial court in Italy found six scientists guilty of manslaughter due to their failure to predict an earthquake, the Italian Supreme Court also hit the news after ruling in an employment case that mobile phones can cause brain tumours in heavy users. Sarah Croft, of Shook Hardy & Bacon International, assesses the potential implications of this most recent decision on future litigation relating to mobile phones in Italy and elsewhere.
For a while there has been debate in some circles about the health effects of heavy mobile phone usage but, until now, it would appear there has been no successful claims in any jurisdiction. In the USA, a small number of personal injury claims have been brought by individuals against mobile phone manufacturers, including Motorola, NEC, Siemens and Nokia, alleging that they developed brain tumours due to mobile phone use. To date, not one of these claims has been successful, as courts have held that the scientific evidence is insufficient to support causation and that claims are pre-empted due to the defendants’ compliance with prescribed standards for electromagnetic field emissions.
ITALIAN SUPREME COURT RULING
In a decision published on 19 October 2012, the Labour Law section of the Italian Supreme Court affirmed an appellate court ruling that the plaintiff, Innocente Marcolini, had developed a brain tumour caused by his heavy mobile phone use. The plaintiff was an Italian company director, who used his mobile phone for up to six hours a day for 12 years during the course of his work. He developed a neuroma (a non-malignant type of brain tumour) on the trigeminal nerve near his left ear. Although it was not malignant, it required surgery that affected his quality of life.
Mr Marcolini initially made a request for compensation to the Italian Workers’ Compensation Authority (INAIL), which insures Italian workers against work-related health risks. INAIL rejected his request on the grounds that Mr Marcolini had failed to prove that his condition was caused by his work. The plaintiff then sued INAIL in the court of first instance but the court ruled against Mr Marcolini. The decision was reversed on appeal and the Italian Supreme Court has now confirmed the appellate court’s decision in favour of the plaintiff, awarding him compensation in the form of a disability pension.
SCIENTIFIC EVIDENCE
The possible health effects of heavy mobile phone use have been the subject of research over the last two decades as mobile phone use has become more prevalent. However, several large scientific studies have failed to find a link with the development of brain tumours. The largest study to date has been the Interphone Study by the International Agency for Research on Cancer that was published in June 20101. This was a decade-long study which began in 2000 with participants from 13 countries. It was jointly funded by the European Commission and the mobile phone industry. The authors of the study found no statistically significant correlation between mobile phone use and the development of brain tumours, and went on to conclude that ‘the possible effects of long-term heavy use of mobile telephones require further investigation’. Other large studies have generally reached a similar conclusion.
Notwithstanding the lack of evidence, many national and international advisory bodies remain concerned about the possibility of harm from mobile phone use and their advice on the issue has been generally precautionary. The World Health Organisation’s International Agency for Research on Cancer (IARC) announced in May 2011 that it was classifying electromagnetic fields from mobile phones and other sources as ‘possibly carcinogenic to humans’. IARC accepted that the evidence was:
‘… limited among users of wireless telephones for glioma and acoustic neuroma, and inadequate to draw conclusions for other types of cancers’.
The IARC concluded that ‘there could be some risk’ and advised the public to adopt safety measures to reduce exposure, like the use of hands-free devices or texting.
Some national radiation advisory authorities, including those of France, Germany, and Sweden have also recommended measures to minimise exposure to their citizens.
In the United Kingdom, the Health Protection Agency (HPA), which provides advice to the government on public health issues, advises that:
‘… there is no clear evidence of adverse health effects from the use of mobile phones… but, given the uncertainties in the science, some precaution is warranted particularly regarding the use of handsets held against the head.’
A report published in April 2012 by the HPA’s independent Advisory Group on Non-ionising Radiation (AGNIR) reached the same conclusion. A spokesman for the HPA was quoted in press reports of the Marcolini case as saying: ‘The scientific consensus is that mobile phones do not cause cancer.’
IMPLICATIONS OF THE MARCOLINI DECISION
The Italian Supreme Court’s decision in the Marcolini case is interesting, as its conclusion is inconsistent with the weight of scientific evidence regarding the connection between mobile phone use and brain tumours. It has generally been concluded following the research that there is insufficient evidence to determine whether there is a link. The Italian appellate court placed the most emphasis on a Swedish study published in 2009, which concluded that the use of mobile phones for more than 10 years did lead to an increased risk of two types of brain tumours – acoustic neuroma and glioma2. The Court favoured this study over large international studies such as the 2010 Interphone Study, which had failed to find a similar correlation, primarily it would seem because it considered the Swedish study more reliable and independent than the Interphone study which had been part funded by the mobile phone industry.
The Supreme Court ruling is very likely to lead to further claims, at least in Italy. Italian consumer associations, such as the Council of the Associations for the Defence of End Users and Consumer Rights (CODACONS), have welcomed the decision, as it believes that a precedent has been created that will allows Italian consumers who have used mobile phones heavily to bring claims if they develop similar brain tumours. CODACONS has been active in pursuing class actions on behalf of consumers under Italy’s new law that took effect in 2009 although, at least so far, class actions for personal injury have not succeeded.
The Italian Supreme Court’s decision and the success of Mr Marcolini may well inspire plaintiffs to bring claims in other jurisdictions and they will no doubt try to rely on this decision for persuasive authority. Nonetheless, there will remain two significant hurdles for plaintiffs to overcome.
First, as discussed above, the weight of scientific evidence does not demonstrate a link between mobile phone use and brain tumours. In order for a claim to be successful, a plaintiff will need to prove on the balance of probabilities that mobile phone use was the cause of their injury. While the Italian Supreme Court held that causation had been proved, by favouring the 2009 Swedish study over other scientific studies, the Italian court’s conclusions have been criticised by some members of the international scientific community. It remains to be seen whether courts in other jurisdictions would be persuaded to follow their example.
Secondly, mobile phone manufacturers in many countries are required to comply with guidelines for the levels of electromagnetic fields emitted by their products. The guidelines prepared by the International Commission on Non-Ionizing Radiation Protection have been adopted by over 50 countries and are the basis of a European Council Recommendation on the issue, which has been adopted by European Union member states including Italy and the United Kingdom3. As shown in the US cases, if manufacturers are in compliance with these guidelines, it will make it harder for plaintiffs to prove tortious conduct by the defendant companies. It is unclear from reports whether this argument was raised in the Marcolini case, although since it was an employment case rather than a product liability case brought against a manufacturer, it is not clear to what extent this defence played a part in these particular circumstances.
CONCLUSION
The Italian Supreme Court’s decision seems to be the first in the world to allow a plaintiff to successfully claim damages after suffering a brain tumour which the court found was caused by mobile phone use. Mobile phone manufacturers, service providers, and companies whose employees may be heavy users of mobile phones should be aware of this decision and its potential impact on future litigation.
It remains to be seen whether this decision will inspire new claims internationally, and how successful these claims might be, particularly as the litigation already brought in the US has been unsuccessful to date.
Notes
- Interphone Study Group (2010). ‘Brain tumour risk in relation to mobile telephone use: results of the INTERPHONE international case-control study’. International Journal of Epidemiology39(3): 675–694.
- Hardell L, Carlberg M, Hansson Mild K (March 2009). ‘Epidemiological evidence for an association between use of wireless phones and tumor diseases’. Pathophysiology 16(2–3): 113–22.
- Council Recommendation of 12 July 1999 on the limitation of exposure of the general public to electromagnetic fields (0 Hz to 300 GHz), Official Journal L 199 of 30.7.1999.