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03/29/96 ROBERT VERB v. MOTOROLA

March 29, 1996

ROBERT VERB, LEONARD ABRAMS, KIRBY CLAIRE, MICHAEL VOGENTHALER, BRIDGETTE VOGENTHALER, GARY SHULMAN, TIMOTHY GIANOUS AND GLENN MILLER, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, PLAINTIFFS-APPELLANTS,
v.
MOTOROLA, INC., MITSUBISHI ELECTRONIC CORP., NOKIA MOBILE PHONES, INC., AUDIOVOX CORPORATION, TOSHIBA CORPORATION, PANASONIC COMMUNICATIONS AND SYSTEMS COMPANY, A DIVISION OF MATSUSHITA ELECTRONIC CORPORATION OF AMERICA, OKI ELECTRIC INDUSTRY COMPANY, LTD. AND SOUTHWESTERN BELL MOBILE SYSTEMS, INC., D/B/A CELLULAR ONE, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Cook County. Honorable Edwin M. Berman, Judge Presiding.

Rehearing Denied November 6, 1996. As Modified on Denial of Rehearing November 12, 1996. Released for Publication November 18, 1996.

The Honorable Justice Burke delivered the modified opinion of the court upon denial of rehearing. Scariano and DiVITO, JJ., concur.

The opinion of the court was delivered by: Burke

JUSTICE BURKE delivered the modified opinion of the court upon denial of rehearing:

Plaintiffs Robert Verb and others similarly situated, who purchased cellular telephones from defendants Motorola and other similar companies, appeal from an order of the circuit court dismissing their second amended complaint against defendants pursuant to section 2--615 of the Illinois Code of Civil Procedure (Code) (735 ILCS 5/2--615) (West 1992)) and their class allegations pursuant to sections 2--615 and 2--801 of the Code (735 ILCS 5/2--615, 2--801) (West 1992)). On appeal, plaintiffs contend that the trial court erred in holding that federal law preempted the trial court's jurisdictional power to hear this case, the Federal Communications Commission and/or the Food and Drug Administration have primary jurisdiction over this case, and that plaintiffs failed to allege a compensable injury in their second amended complaint (complaint). Plaintiffs further argue that they properly alleged all essential elements of each cause of action contained in their complaint and that the trial court erred in dismissing their class action allegations. For the reasons set forth below, we affirm.

Plaintiffs' eight-count complaint included claims of breach of implied warranty of merchantability, breach of implied warranty of fitness for a particular purpose, breach of express warranty, violation of the Magnuson-Moss Warranty Act, negligence, strict liability, consumer fraud and deceptive trade practices. These claims were based on plaintiffs' allegations that a specific design of a cellular telephone manufactured by defendants may cause an increase in health risks to plaintiffs. That design combines the transmission antenna, which emits the cellular telephone's radio wave, and the mouthpiece of the cellular telephone into a single unit. Plaintiffs alleged a class consisting of people who similarly purchased, leased or obtained the cellular telephone for value. Plaintiffs purchased their cellular telephones from defendants between June 23, 1989 and December 21, 1992.

Plaintiffs further alleged that defendants' cellular telephone operates over a high frequency electromagnetic radio wave at a low power level and that scientific research has shown that certain high frequency emissions have "biological effects." More specifically, plaintiffs alleged that tests performed just below the frequency range used by cellular telephones indicate a penetration of the blood-brain barrier in test animals and that radio waves emitted below and above the frequency range used by cellular telephones causes both a breakdown in the calcium that coats cell walls and abnormal growth of human cells. Plaintiffs also claimed that defendants conducted few, if any tests, regarding the frequency range used by cellular telephones and the long-term cumulative health effects on the public.

Plaintiffs further alleged that defendants did not inform the public prior to 1992 that there is a lack of empirical data about radio waves at the frequency that cellular telephones operate on and of the possibilities of harmful physical effects to a user of the cellular telephone; that in 1990 "an Environmental Protection Agency report concluded that electromagnetic fields were probable or possible carcinogens"; that "8 years *** later, certain defendants are only now commissioning appropriate or adequate studies on how cellular phones affect users' exposure to radio waves, the results of which will not be conclusive for several years"; on February 1, 1993, "defendant Cellone" mailed correspondence to plaintiff including a letter and brochure entitled 'SAFE CELLULAR PHONES'"; and on February 4, 1993, defendant Motorola's president stated that the cellular telephones' safety is "rooted in scientific fact."

Plaintiffs also alleged directly in each count, or by incorporation, as follows:

"*** Defendant [sic] failed to adequately warn plaintiffs and the general public that (1) defendants had not conducted tests to discern whether use of the cellular phones posed any health risks to the users, and that (2) use of cellular phones may be hazardous to the user's health.

*** Defendants also failed to adequately package and/or label the cellular phones to apprise the plaintiffs and the general public that (1) defendants had not conducted tests to discern whether use of the cellular phones posed any health risks to the users, and that (2) use of cellular phones may be hazardous to the users' health. " (Emphasis added.)

As a result of their use of the cellular telephones, plaintiffs alleged that they had been damaged as follows:

"[Plaintiffs] and members of the Class have been damaged by a reduction in the value of the cellular phones, by lessening their use of the cellular phones, by modifying the cellular phones or the use thereof to limit or mitigate their exposure to the harmful or potentially harmful radio waves, by being subjected to increased risk of exposure to harmful or potentially harmful radio waves, and by suffering increased risk of personal injury, whether manifested or not, or personal injury and the concomitant emotional distress associated with either."

Defendants filed a motion to dismiss plaintiffs' complaint pursuant to section 2--615 of the Code and to dismiss the class action allegations pursuant to sections 2--615, and 2--801. 735 ILCS 5/2--615, 2--801 (West 1992). Plaintiffs filed an emergency motion for class certification, and an evidentiary hearing was held on June 24 and 25, 1993, at which time two of plaintiffs' experts testified with respect to whether the radiation emitted from cellular telephones pose a health risk to consumers. During that hearing, after the experts had testified, the following colloquy occurred:

"MR. GOODHART [one of plaintiffs' attorneys]: *** I think our complaint alleged that we said there was a risk and a lack of warnings of that risk. And that has been our contention all along, that there are no safe cellular phones ***.

***

THE COURT: There is no warning because there is no definitive study which can actually say that the cellular phone is dangerous.

***

MR. JOHNSON [one of defendants' attorneys]: *** What we're talking about is a debate, a scientific debate. This is a debate that's being carried on at the EPA. We've seen that. At the FDA, we've seen those conclusions. The FCC ***.

***

THE COURT: [Assuming you prove your case,] *** what remedy do you want me to impose on them?

***

MR. DRURY [one of plaintiffs' attorneys]: *** These defendants have been misinforming the public as to the, quote, 'safety' of their telephones.

We believe we have demonstrated today that there is a need to inform the public out there that that isn't the fact, that these phones are not safe.

***

THE COURT: What do you want me to ...


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