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Kane v. Motorola

November 27, 2002

ROBERT C. KANE AND PATRICIA KANE, PLAINTIFFS-APPELLANTS,
v.
MOTOROLA, INC., THOMAS HULL, QUIRINO BALZANO, AND JAMES PHILLIPS, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Cook County Honorable Paddy H. McNamara, Judge Presiding.

The opinion of the court was delivered by: Justice Karnezis

MODIFIED OPINION UPON DENIAL OF REHEARING

Plaintiffs, Robert and Patricia Kane, brought this cause of action against defendants, Motorola and several of its employees, claiming that Robert Kane developed a brain tumor as a result of testing a prototype antenna for a cellular telephone when he was employed by Motorola as an engineer. After a lengthy discovery process, the circuit court struck plaintiffs' two expert witnesses, Dr. Milham and Dr. Leestma, finding that their testimony was not based on scientific evidence. The court subsequently granted defendants' motion for summary judgment on the basis that plaintiffs did not have any competent evidence on the issue of causation. Plaintiffs now appeal. On appeal, plaintiffs contend: (1) the court misapplied the Frye standard when it struck the testimony of plaintiffs' two expert witnesses; (2) the court erred in entering summary judgment; and (3) the court improperly limited the scope of discovery. We affirm.

On three separate dates in 1984, plaintiff Robert Kane (Kane) conducted field tests for a prototype cellular telephone antenna. The purpose of the tests was to assess the effectiveness of the antenna. The first day of testing occurred on September 19, and the second and third days of testing occurred on November 4, and November 9. Kane estimated the duration of the tests over the three-day period totaled about 60 to 90 minutes. During many of the tests, Kane was directed to place the antenna approximately one centimeter above his right ear. Kane noticed during the tests the telephone became hot against his head. Several days after the last day of testing, Kane developed a skin condition on his right scalp that he characterized as "dermatitis." He described his scalp as becoming very itchy and having a "wet feeling" that lasted several months. Although plaintiffs' experts stated in their depositions that the "wetness" on Kane's scalp was also accompanied by excessive ear wax or a watery discharge from Kane's ear, Kane never mentioned such a symptom during his deposition.

Kane estimated the prototype antenna operated at a power output of about 0.6 to 1 watt. He acknowledged, however, Motorola documents indicated the antenna operated at 0.1 watt. Kane also estimated the antenna operated at a frequency of about 845 megahertz.

In 1992, Kane suffered a brain seizure and was diagnosed with a brain tumor. The tumor was classified as a grade two oligodendroglioma malignancy. It was located in Kane's right temporal lobe, the same area in which he held the prototype antenna and developed the wetness on his scalp. Because the tumor mass was diffused as opposed to well-defined, it could not be completely removed. Plaintiffs alleged in their complaint that during Kane's testing of the prototype antenna, he was exposed to an unsafe level of radio frequency (RF), which was the proximate cause of his brain tumor. Plaintiff's complaint was filed in December 1993, approximately nine years after Kane had conducted the testing. During discovery, plaintiffs requested the prototype antenna from defendants and defendants produced as much of the prototype as still existed, which included the inner circuitry. Plaintiffs acknowledged receiving the prototype and further acknowledged returning the prototype to defendants after a period of time.

Plaintiffs offered the expert witness testimony of two doctors, Dr. Samuel Milham and Dr. Jan Leestma, to establish that RF emitted from the prototype antenna caused Kane's tumor. In his deposition, Dr. Milham, an epidemiologist, concluded the excessive discharge from Kane's ear and the wetness on Kane's scalp were evidence of an RF burn from the cellular antenna, which in turn led to the development of Kane's tumor. Dr. Milham admitted, though, there was no scientific evidence that Kane's brain tissue suffered a burn injury. He inferred that the wetness on Kane's scalp and the discharge from Kane's ear indicated a burn injury because a burn injury generally causes clear liquid to ooze. Yet, he did not know whether a watery discharge associated with a regular burn would occur from an RF burn. Dr. Milham admitted he did not know of any literature establishing a connection between a watery discharge and RF exposure. He was also unaware of any scientific evidence demonstrating an association between wetness of the scalp and a brain tumor. Dr. Milham also agreed that the wetness on Kane's scalp could have been described as dermatitis, which has numerous causes including allergies or diet. He admitted it was possible to get dermatitis anywhere on the body, including on one 's scalp.

Although Dr. Milham stated he believed there was evidence that tissue injury, including burn injury, was associated with the development of cancer, he was not aware of any evidence linking an RF burn with cancer. He admitted the relevant scientific literature did not support the conclusion that RF exposure caused cancer. Instead, he compared cancer developing on the skin after a sunburn with an RF burn causing a cancerous brain tumor.

Dr. Milham concluded the prototype antenna more probably than not caused Kane's brain tumor, but admitted he did not conduct a study or test to determine whether an antenna similar to the prototype antenna operating at 1 watt and at 845 megahertz would be able to cause a burn injury to brain tissue. He further admitted he did not have the expertise to determine whether the prototype antenna had enough power to injure or burn Kane's brain tissue. Dr. Milham admitted he could not state to a reasonable degree of medical certainty that RF exposure initiated Kane's brain tumor. Dr. Milham further admitted he was not aware of any scientific evidence showing an oligodendroglioma developing in as little as eight years and had no knowledge of latency periods for that type of tumor.

Dr. Leestma, a neuropathologist, stated in his deposition that he believed RF exposure "might or could" cause cancer in humans, but could not state to a reasonable degree of medical certainty that exposure to RF caused human brain cancer. Although he believed Kane's dermatitis-like condition was caused by RF exposure, he did not consult a dermatologist or conduct research to determine whether dermatitis could develop on one's scalp without exposure to RF. He was also not aware of any scientific evidence that RF exposure caused dermatitis or of any evidence demonstrating an association between dermatitis and brain tumors.

Dr. Leestma stated that Kane's excessive ear wax supported his opinion that the RF radiation Kane was exposed to might or could have caused Kane's brain tumor because it was a symptom reported in the same location as Kane's exposure to RF. He stated, though, he could not cite to any scientific evidence to establish that an increase in temperature associated with RF exposure was sufficient to stimulate the glands that produce ear wax. He also was not aware of any scientific evidence that found that increased production of ear wax was a symptom of a brain tumor.

Dr. Leestma admitted there was no objective evidence that Kane sustained a burn injury based on his examination of the tissue samples of Kane's tumor. He stated he believed exposure to RF might or could have induced changes in Kane's DNA that could have resulted in Kane's tumor. However, he did not know of any scientific evidence indicating that exposure to 845 megahertz of RF has sufficient energy to break a chemical bond in the human body. Dr. Leestma also admitted he did not know of any scientific data indicating RF was capable of breaking DNA bonds in human tissue. He further admitted that breaks in DNA bonds do not necessarily mean cancer will occur.

Dr. Leestma also admitted that although he did not know whether there was a latency period for oligodendroglioma tumors, he believed that eight years came within the domain of credibility. He also stated that the most common site for oligodendroglioma tumors is in the temporal lobe, the same location where Kane's tumor was located.

Dr. Leestma further stated that although there were reports in the media about individuals developing brain tumors from cellular telephones, there were no scientific case studies in peer-reviewed literature establishing a connection between brain tumors and RF radiation. He admitted he did not perform laboratory research to confirm whether RF caused any type of cancer and ...


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