Brooks v. Mitsubishi Electric & Electronics US, Inc.

Opinion

Notice: This opinion is subject to formal revision before publication in the Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the Court of any formal errors so that corrections may be made before the bound volumes go to press.

DISTRICT OF COLUMBIA COURT OF APPEALS

No. 24-CV-0739

JEAN R. BROOKS, et al., APPELLANTS,

V.

MITSUBISHI ELECTRIC AND ELECTRONICS USA, INC., et al., APPELLEES.

Appeal from the Superior Court of the District of Columbia (2012-CA-003241-B)

(Alfred S. Irving, Jr., Judge)

(Argued April 14, 2026 Decided July 16, 2026)

Jesenka Mrdjenovic argued for appellants.

Terrence J. Dee argued for appellees.

Many additional counsel were on the briefs for the parties. Their names are listed in an appendix to this opinion.

Before EASTERLY and SHANKER, Associate Judges, and THOMPSON, Senior Judge.

Opinion for the court by Associate Judge Easterly.

Dissenting opinion by Senior Judge THOMPSON at page 49.

EASTERLY, Associate Judge: For a quarter of a century, the same collection of

plaintiffs’ lawyers has been trying to hold the same collection of defendant cellphone 2

companies liable for injuries that an ever-expanding group of complainants allegedly

suffered as a result of cellphone radiation exposure. This court has already decided

three appeals in these cases. In Murray v. Motorola, Inc., 982 A.2d 764, 768, 778-89

(D.C. 2009) (Motorola I), we held that six complaints filed in 2001 and 2002 by

plaintiffs who were either individuals suffering from brain tumors or estates suing

on behalf of decedents who had died from brain tumors were not wholly preempted

by federal law. Litigation of these cases—at some point consolidated with another

eight complaints to become the Murray cases—proceeded until the defendants

appealed from an adverse-in-part Frye/Dyas ruling. In Motorola v. Murray, 147 A.3d

751, 752, 756-57, 759 (D.C. 2016) (en banc) (Motorola II), we retired the standard

for the admission of expert testimony under Frye v. United States, 293 F. 1013 (D.C.

Cir. 1923), and Dyas v. United States, 376 A.2d 827 (D.C. 1977), and adopted the

standard set forth in Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993),

and Federal Rule of Evidence 702; we then remanded for the Murray plaintiffs to

litigate the admissibility of their proffered expert testimony under Daubert/Rule 702.

In Murray v. Motorola, 339 A.3d 152, 156, 174 (D.C. 2025) (Motorola III), we

upheld the trial court’s ruling excluding the Murray plaintiffs’ proffered expert

testimony under Daubert/Rule 702. In so doing we affirmed the court’s decisions

denying the Murray plaintiffs’ motions for additional discovery and new experts and

striking portions of their expert reports. Id. at 169-74. 3

Now, in this fourth related appeal, we consider whether the trial court correctly

determined that the Brooks plaintiffs—another group of complainants who shared

the same counsel as the Murray plaintiffs and whose eighteen later-filed complaints

were eventually separately consolidated—were bound by litigation regarding

whether the Murray plaintiffs’ experts could testify about “general causation,” i.e.,

the causal connection between radiation from cellphones and the type of adverse

health effects at issue in the Murray (and Brooks) cases. We conclude that the Brooks

plaintiffs agreed—either expressly or implicitly—to be bound by both the

substantive outcome of the Murray litigation and all predicate procedural rulings,

and we discern no basis to declare those agreements nonbinding. Because the

testimony of the Murray plaintiffs’ experts was deemed inadmissible, we affirm the

trial court’s decision to grant the defendant cellphone companies summary judgment

on the ground that the Brooks plaintiffs lacked the requisite expert testimony to prove

their case.

I. Procedural History

A. The Initial Case Management Order in the Murray Cases

We begin our recap of the procedural history with the bifurcation of the

litigation in the Murray cases in the trial court’s initial case management order and

the contemporaneous litigation about the order’s meaning. 4

On November 15, 2011, the presiding judge, Judge A. Franklin Burgess, Jr.,

held a case management hearing in the Murray cases. At the hearing, the plaintiffs

suggested an alternative to “full discovery . . . [in] 14 cases” on overlapping issues

and proposed that the trial court focus first on determining whether plaintiffs had

admissible expert testimony regarding the “general causation” question that

pertained to all of the plaintiffs—i.e., whether their experts could permissibly testify

that cellphone radiation causes the type of adverse health effects the plaintiffs had

experienced. The plaintiffs asserted that their suggested approach would be

“efficient” because the expert testimony issue could be dispositive: if the court

determined their “experts’ testimony [wa]s founded in science” and could be

presented to a jury, their cases could move forward, but “[i]f the court says no, [the

proffered expert] testimony is no good and strikes the witnesses, then most of this is

over with.” But even as the plaintiffs proposed to forgo “full blown discovery,” at

least at the outset of the case, as part of this plan, they indicated that they still wanted

to get discovery seemingly unrelated to a Frye/Dyas hearing on the admissibility of

their experts’ testimony about general causation, noting, for example, their desire to

obtain from defendants “internal correspondence between regulatory bodies and

manufacturers, between manufacturers and the trade associations.” For their part,

the defendants did not oppose bifurcating the case; but highlighting that no plaintiff

in these types of suits had ever “gotten an expert to a jury,” they countered that 5

plaintiffs should be required to first demonstrate that they had admissible expert

testimony as to both general causation and specific causation as to all the

complainants diagnosed with brain cancer.

Putting forward his own bifurcation plan, Judge Burgess decided that the

Murray plaintiffs would first address expert admissibility as to general causation

with only limited discovery to that end. Under this plan, the parties would have:

a Frye hearing directed toward and discovery direct[ed] toward whether there is some consensus among the scientific community that cellphone radiation can cause one of these four tumors or health effects as [plaintiffs] have defined it and that in order to do that, [plaintiffs] can have discovery directed toward that issue . . . but that will be the limit of the discovery at this point other than, of course, the deposition of the experts, all along toward trying to figure out whether [plaintiffs] can meet the Frye standard.

And Judge Burgess pushed back when plaintiffs’ counsel tried to expand the

boundaries of its ruling, stressing that “the issue [would] . . . be whether [plaintiffs’

experts’] methodology [is] satisfactory under Frye,” and thus that the defendants

would have nothing to prove at this juncture. Ultimately, the Murray plaintiffs stated

that they “underst[oo]d” that this plan would “have the efficiencies of” resolving

“just the general causation issue under Frye, the methodology and qualifications of 6

our experts . . . after whatever briefing, expert reports being exchanged, limited

discovery.” 1

In December 2011, Judge Burgess issued an Initial Case Management

Schedule for Phase I Discovery memorializing its bifurcation plan in the Murray

cases. The order stated in pertinent part:

WHEREAS this court, having conducted a case management conference on November 15, 2011, having conducted oral argument, and having determined for the reasons stated on the record that the first phase of discovery shall focus on general causation; . . . . NOW, THEREFORE, the Court hereby ORDERS . . . that discovery in the above-referenced actions shall be limited to general causation plus certain other discovery may be requested to the extent noted and approved on the record during the November 15, 2011[,] hearing.

Judge Burgess then set out a schedule for the completion of “fact discovery related

to general causation,” the “[d]isclosure of [the parties’] experts and reports on

general causation” following discovery that largely tracked the requirements of

1 Judge Burgess did grant defendants’ request to expand discovery to include plaintiffs’ medical records, but he rejected as unnecessary their request to get product identification information (to enable the cellphone companies to determine if some of them could be dismissed because no plaintiff had ever used their products). In rejecting the defendants’ request for this additional information, Judge Burgess explained to the defendants that “[t]he whole idea of the Frye hearing is to eliminate all issues, but that one. If I decide . . . in your favor in Frye, . . . [y]ou would be out of the case. You wouldn’t have to do this discovery.” 7

Federal Rule of Civil Procedure 26(a)(2)(B), 2 the completion of depositions of the

experts, and the submission of “Frye/Dyas motions related to Plaintiffs’ experts on

general causation.” The schedule contemplated a “Frye/Dyas Hearing on

Defendants’ motions” by July 2013.

Although general causation discovery was scheduled for completion by

August 2012, the parties returned to court on the Murray plaintiffs’ motion to compel

in September 2012. The plaintiffs asserted that they had been unable to get the “fact

discovery regarding general causation”—i.e., “whether cellphone radiation can

cause the types of adverse health effects that [they had] alleged in their

complaints”—to which they believed they were entitled. Among the discovery

plaintiffs alleged was being withheld was defendants’ “scientific studies, scientific

data, test results and literature regarding cellphone radiation and the exposure and

2 The order specifically required the expert reports to “include (i) a complete statement of all opinions the witness will express on general causation and the basis and reasons for them; (ii) facts or data considered by the expert in forming the opinions; (iii) the witness’s qualifications, including a current CV; (iv) a list of all other cases in which the witness has testified in the previous four years; and (v) a statement of the compensation to be paid for the expert’s work on the case.” See Fed. Civ. Proc. R. 26(a)(2)(B) (requiring expert reports to contain “(i) a complete statement of all opinions the witness will express and the basis and reasons for them; (ii) the facts or data considered by the expert in forming them; . . . (iv) the witness’s qualifications . . . ; (v) a list of all other cases in which . . . the witness has testified . . . ; [and] (vi) a statement of the compensation to be paid for the study and testimony in the case”). The analogous Superior Court rule was amended to track the federal rule in 2015. Compare Super. Ct. Civ. R. 26(a)(2)(B) (2015 ed.) with generally Super. Ct. Civ. R. 26 (2011 ed.). 8

the adverse health effects.” The plaintiffs asserted they needed this information both

because “general causation is cause and effect,” and because their experts should be

able to “take[] into account” defendants’ “studies or literature or the test data.” The

plaintiffs also asserted that they only had “one shot at doing general causation fact

discovery in this case.”

Judge Burgess and the Murray plaintiffs then engaged in a lengthy exchange,

spanning almost fifty pages of transcript, about whether the discovery the plaintiffs

sought was contemplated by the Initial Case Management Order, or if not, whether

the court should expand the scope of discovery. At the outset, the court stated that

the plaintiffs had not been entitled, under the Initial Case Management Order, to

broad discovery into whether the defendants possessed information showing

cellphone radiation could cause cancer. Rather, in this first phase of discovery, the

plaintiffs were entitled only to information that related to the admissibility of their

experts’ testimony about “general causation.” Judge Burgess explained that “general

causation . . . mean[s] . . . whether or not . . . the methodology is generally accepted

to allow an opinion to state that cellphones cause injury. That is general causation.”

Judge Burgess told the plaintiffs to “keep in mind” that if their expert testimony

about general causation was deemed admissible, then “we have full discovery” or at

least “you get much fuller discovery of the defendants than you would get now.” But 9

the debate about whether cellphones can cause adverse health effects, the court

stated, was reserved for trial. 3

The Murray plaintiffs admitted that they did not “need anything more” in the

way of discovery to litigate admissibility of their experts’ testimony regarding

general causation; nonetheless, they pressed the court to adopt a broader conception

of “general causation” discovery that would include, for example, any smoking gun-

type evidence the defendants might have in their possession. The plaintiffs asserted

that this would promote efficiency because “[i]f you just do discovery on a Frye

hearing[] on methodology you are not done there, because you still have the cause

3 At one point during this discussion, plaintiffs’ counsel asserted that the Murray plaintiffs never would have “stipulated to th[e court’s November 2011] order” had they understood they were limiting discovery solely to information relating to the admissibility of their experts’ testimony about general causation. But at this juncture, the parties had not stipulated to anything, as Judge Burgess made clear when he responded that, although the Murray plaintiffs were the first to suggest bifurcation, “it was my ruling . . . I am the one that ultimately made the ruling.” And to the extent the plaintiffs simply meant they never would have acceded to the court’s bifurcation proposal had its terms been clear, the trial court was unconvinced, repeatedly noting that (1) he had “said . . . very clearly” at the November 2011 hearing that he was proposing “staged discovery, the first stage [of] discovery [to be] aimed toward a Frye hearing”; (2) he was “very firm in my opinion that [he] was directing this . . . discovery toward a Frye hearing”; (3) he had “made it clear that the first stage of the case would be a hearing to se[e] whether the plaintiffs could ‘meet the Frye standard,’” quoting the November transcript; (4) although his order “did not mention general causation as determined under Frye, it [was] clear to [him] from what [he had] said at the [November 2011] hearing that that is the intent of the [Initial Case Management] order and it should be construed that way”; and (5) he had been “clear that we would be trying to ‘figure out whether you, i.e., the plaintiffs can make the Frye standard,’” again quoting the November transcript. 10

and effect . . . We still have to convince the jury at the end of the day that the cause

and effect is there.” Judge Burgess was unmoved. He explained that, under the

“clear” and “firm” terms of the bifurcation arrangement he had decided upon at the

November 15, 2011, hearing as memorialized in the December 2011 Initial Case

Management Schedule for Phase I Discovery, the “efficiency” to be gained was in

determining whether the plaintiffs had the requisite expert testimony about general

causation to allow their case to survive. To that end, the “first stage[ of] discovery

[had been] aimed toward a Frye hearing” where the parties would focus on “the

methodology, the method, technique, [or the] way of thinking . . . used to reach a

conclusion by the plaintiffs’ expert” to determine “is that generally accepted”—

“nothing more.”

For these reasons, Judge Burgess denied the Murray plaintiffs’ motion to

compel. 4 He explained that “Plaintiffs . . . operate from a mistaken premise if they

argue or when they argue that general causation, as used in the court’s order,

addresses cause and effect, whether cellphones can cause adverse effects,” and this

“mistaken premise has led them down the path of discovery that is much too broad.”

4 Judge Burgess granted the plaintiffs relief in one respect: he ordered the defendants to supplement their production of completed studies with any “uncompleted studies, which [defendants] have conducted or which they control” because “[i]f, for example, defendants have conducted studies that use a methodology used by plaintiffs’ expert, it should not matter . . . that defendants have not completed the study.” 11

Acknowledging the plaintiffs’ requests for internal documents from the cellphone

companies, Judge Burgess stated that “the question at this stage is not whether

cellphone radiation can cause adverse health effects. It is whether there is a general

acceptance within the appropriately defined scientific community of plaintiffs’

experts’ methodology in reaching their conclusions as to causation of adverse health

effects.” As for whether the plaintiffs needed additional information from the

defendants to help the plaintiffs’ experts form opinions or to establish bias of

defendants’ experts, Judge Burgess determined that the plaintiffs had failed to tie a

particular discovery request to those ends and noted that the plaintiffs had

acknowledged that their experts had already formed their opinions. He also noted

that the defendants’ defenses to general causation were not relevant at this juncture. 5

5 After the court denied the Murray plaintiffs motion to compel ruling, the court held a status hearing for three new plaintiffs who had filed similar suits against the defendants (and later became Brooks plaintiffs). The court asked whether the parties wanted these new plaintiffs’ cases to be “joined” with the Murray cases “for case management purposes” and have their names added to the case caption, i.e., whether they should be consolidated with the Murray plaintiffs. But counsel for the defendants stated that this was not their wish, explaining that these new cases had been filed “more than midway through th[e] nine month period for discovery in the Murray cases” and indicating that defendants did not want to slow the Murray cases down by conducting discovery in these case (as defendants would be entitled to do under the Initial Case Management Schedule for Phase I Discovery, see supra note 1). Instead, counsel for Motorola told the court that the plan would be to “keep these three cases stayed and the Frye hearing results will apply to these cases,” and counsel for AT&T told the court, “we have an agreement.” The conversation ended with the court directing defendants’ counsel to “draft an order to that effect.” Plaintiffs’ 12

Judge Burgess memorialized his oral ruling on the Murray plaintiffs’ motion

to compel in an October 2012 written order in which he “confirmed that Phase I

discovery [in the Murray cases] solely pertains to the issues involved in a Frye/Dyas

hearing regarding Plaintiffs’ general causation experts and opinions,” and provided

a new deadline to initiate “Phase I fact discovery, which pertains to the issues

involved in a Frye/Dyas hearing regarding Plaintiffs’ general causation experts and

opinions.”

B. The Brooks Plaintiffs’ Stipulations

Just seven weeks after Judge Burgess issued his written order resolving any

confusion about the scope of discovery in the Murray cases, the Brooks plaintiffs 6

and the cellphone company defendants began filing Joint Stipulations and Proposed

Management Orders with the court. 7 In these agreements, the parties acknowledged

that (1) the Murray cases and the Brooks cases were “related, similar, and

counsel made no contribution to this exchange between the court and defendants’ counsel. 6 These plaintiffs, eighteen sets in all—the Brooks, Jones, Cobb, King, Butler, Phillips, Gonzalez, Anderson, Zelcer, Rice, Riepen, Ferguson, Marks, Savoury, Vervoort, Reilly, Kasperski, and DeRosa cases—were represented by the same lawyers and filed complaints nearly identical to those in the Murray cases. Their cases were not formally consolidated until August 2023, see infra Part I.F., but for ease of reference we refer to them as the Brooks plaintiffs throughout this opinion. 7 All but two of the Brooks plaintiffs filed stipulations before the trial court held the Frye/Dyas hearing in December 2013. See infra notes 8 & 9. 13

overlapping”; (2) although no discovery had been conducted in the particular case

in which the stipulation was filed, the Murray cases were “currently in ‘Phase I’

discovery” before the court; (3) the “operative Case Management Schedule

governing the Murray cases . . . contemplate[d] a Frye/Dyas hearing on the

threshold issue of general causation to be held following the conclusion of Phase I

Discovery in the Murray cases”; and (4) “the Parties [had] agree[d] that the [trial]

[c]ourt’s ruling in the Frye/Dyas hearing in the Murray Cases will apply to . . . this

case.” The parties “therefore . . . agree[d] that this case should be stayed in its

entirety until after the Court’s resolution of the Frye/Dyas hearing in the Murray

Cases and that the Court’s ruling in the Frye/Dyas hearing in the Murray Cases will

apply to this case.” These stipulations were all signed by counsel—who for the

Brooks plaintiffs were the same counsel that represented the Murray plaintiffs. See

supra note 6. Upon receipt of these joint stipulations, the trial court filed in each of

these cases an order acknowledging the stipulation and issuing a case management

order which “stayed [each case] in its entirety pending the Court’s resolution of the

Frye/Dyas hearing” in the Murray cases and directed that “the court’s ruling in the

Frye/Dyas hearing in the Murray cases will apply to this case.” 14

C. The Decision in the Murray Cases to Change the Evidentiary Standard for the Admissibility of Expert Testimony

The presiding judge, now Judge Frederick H. Weisberg, held a Frye/Dyas

hearing in the Murray cases between December 2013 and January 2014. 8 Judge

Weisberg issued his Frye/Dyas ruling in August 2014. The Murray plaintiffs

partially prevailed, with Judge Weisberg concluding that some, but not all, of

plaintiffs’ proffered expert testimony on general causation was admissible under the

Frye/Dyas evidentiary standard, while also observing that the District of Columbia

was in the small minority of jurisdictions continuing to adhere to the Frye/Dyas test

and indicating that, had the Daubert/Rule 702 standard applied, he “almost

certainly” would have deemed plaintiffs’ experts’ testimony inadmissible.

Over opposition from the Murray plaintiffs, Judge Weisberg amended his

Frye/Dyas order in October 2014 to certify this interlocutory ruling for appeal. See

D.C. Code § 11-721(d). In his certification order he noted that, because “plaintiffs’

counsel [had continued to] sign up new claimants,” the Murray cases were now only

a small subset of a growing number of “individual cellphone cancer cases

concurrently pending on the court’s docket”; the Murray cases had been

8 After Judge Weisberg held the Frye/Dyas hearing but before he ruled, another set of Brooks plaintiffs, the Kasperskis, filed a stipulation and proposed case management order that mirrored the others in all respects discussed above. Judge Weisberg’s responsive order likewise tracked the prior trial court orders by directing that the court’s Frye/Dyas ruling would apply. 15

“consolidated for the Frye/Dyas proceedings and the other[] [related cases] were

stayed pending the outcome”; and “a Court of Appeals’ opinion resolving the

standard of admissibility for expert testimony could save the court and the parties

years of unnecessary and prohibitively expensive litigation,” particularly if the

appellate court “decide[d] now to adopt a more modern approach . . . and if, as a

result, Plaintiffs are left without admissible expert testimony.” As part of his

certification order, Judge Weisberg stayed all proceedings in the Murray cases, as

well as in the unconsolidated related cases (including the Brooks cases), “pending

application of appeal pursuant to D.C. Code § 11-721(d) and the disposition of that

application by the District of Columbia Court of Appeals or until further order of the

court.” 9

In its October 2016 en banc decision in Motorola II, this court overruled the

Frye/Dyas standard, adopted the standard for the admissibility of expert testimony

9 After the trial court certified its Frye/Dyas ruling for appeal, the DeRosa plaintiffs, who were the final set to consolidate with the Brooks cases, filed their complaint. On the parties’ consent motion, the case was transferred to Judge Weisberg, who then issued an order staying the case pending the resolution of the interlocutory appeal in the Murray cases and directing that “the court’s rulings on the admissibility of expert witness testimony on general causation in the Murray cases, following remand of the District of Columbia Court of Appeals, will apply to this case, as it will apply to all related cases pursuant to prior orders of this court.” 16

set forth in Daubert and Rule 702, and then remanded the Murray cases to the trial

court for further proceedings consistent with our opinion. 147 A.3d at 757-59.

D. The Proceedings Following the Motorola II Remand

On remand, Judge Weisberg asked the Murray parties to file a status report

addressing, inter alia, “[w]hether additional discovery [was] necessary on general

causation issues now that the governing standard has changed” and “[t]he scope of

that discovery, including whether . . . a new round of depositions of the same experts

who have already testified [was needed] and whether each side propose[d] to name

new experts.” The Murray plaintiffs responded that they needed additional discovery

and wanted to present new experts before relitigating the admissibility of their expert

testimony. After receiving the Murray defendants’ opposition, Judge Weisberg held

a hearing in December 2016 to allow the parties to fully argue their positions.

From the outset of that hearing, it was apparent that the Murray cases were

still operating as the plaintiffs’ vanguard. When Judge Weisberg noted that he had

only calendared the hearing for the Murray cases although thirty-eight related cases

were now pending, plaintiffs’ counsel confirmed that they were “comfortable that

anybody that wanted to have notice of this proceeding has received it and that no

counsel [who] isn’t otherwise associated with it, the 13 Murray cases[,] has been left

out.” Further indicating that they were sticking to their strategy of putting the Murray 17

cases in the lead, plaintiffs’ counsel also informed the court that their failure to stay

six, newly-filed cases pending the resolution of the expert admissibility issue in the

Murray cases had just been the product of “miscommunication.”

As for how the Murray cases should proceed post-remand, plaintiffs’ counsel

acknowledged that, before Motorola II, the Case Management Plan had directed that

they would first determine the admissibility of their general causation experts at a

Frye hearing. But plaintiffs’ counsel argued as they had in their status report that

they now needed “full discovery” in the Murray cases. Unconvinced, Judge

Weisberg reminded plaintiffs’ counsel that their cases were still “at an earlier stage

where the question is whether you have experts who can testify about general

causation”—“whether they have used reliable methods, reliably applied to the facts

of the case, not whether . . . you are going to be able to survive a motion for judgment

as a matter of law on general causation”—and he expressed skepticism either that

the scope of discovery needed to change because of the change in the admissibility

standard or that Judge Burgess would have ruled differently regarding the scope of

discovery had Daubert/Rule 702 been the standard from the outset.

Plaintiffs’ counsel also argued that they should be permitted to present new

experts because “a lot of new science [had] come out.” In the course of this

conversation, the existence of other nonMurray plaintiffs came up again when Judge

Weisberg asked plaintiffs’ counsel, “[W]hat prevents you from starting those 18

[nonMurray] cases rather than joining them with the Murray cases . . . and doing

what you say you want to do now?” But far from seizing upon this suggestion or

replying that nothing was standing in the nonMurray plaintiffs’ way from resuming

litigation, plaintiffs’ counsel continued to push to keep all the pending cases together

“for efficiency” and used the argument that the nonMurray plaintiffs should not be

“penalized” by being “handcuffed” to the Murray cases as a justification for revising

the terms of the Initial Case Management order in the Murray cases.

At the close of the hearing, Judge Weisberg announced his tentative ruling

denying the plaintiffs’ requests for more discovery and new experts but allowing the

plaintiffs to submit a more tailored request to present new studies and to supplement

the reports of previously identified experts. Judge Weisberg stated, without protest

from plaintiffs’ counsel, that the court would continue to stay the nonMurray cases

and figure out “at a later time” how its order denying the Murray plaintiffs’ motion

for additional discovery applied to the non-Murray plaintiffs. After the hearing,

plaintiffs’ counsel filed a Motion for Additional Discovery in the Murray cases but

made no argument in that motion about the nonMurray cases.

In a March 2017 written order, Judge Weisberg ruled that “[t]he change from

Dyas/Frye to Rule 702 d[id] not change the court’s plan for the management of [the

Murray cases].” He explained that the original “case management orders were driven

by the reality that no American court had ever accepted the theory that non-ionizing 19

radiation from cellphones could cause [the types of adverse health effects alleged by

plaintiffs], and it was unfair to force Defendants to defend such complex and

expensive litigation unless Plaintiffs could present admissible expert testimony on

general causation.” Judge Weisberg further explained that, to resolve now whether

“these cases can finally move out of the starting blocks,” there was no need to

broaden the scope of discovery or allow the plaintiffs to present new experts.

As for discovery, Judge Weisberg noted that “[t]he point of Phase I discovery

was to test whether Plaintiffs had the science to back up their experts’ opinions on

general causation” and both “before and after the change in the admissibility

standard,” experts had to “base their opinions . . . on reliable scientific principles and

methods” and rely on “validated and replicated experiments, case studies, and peer

reviewed publications.” Rejecting the argument that it was unfair to deprive “the

Plaintiffs [of] an opportunity to conduct any discovery beyond the limited Phase I

discovery on the question of admissibility of their expert witness testimony,” Judge

Weisberg stated that discovery had been limited in this manner “from the beginning”

by “the prior case management orders that have governed the litigation of these

cases.”

As for new experts, Judge Weisberg also saw no need, explaining that under

the Initial Case Management Order the plaintiffs had been required after the close of

discovery “to produce all of their experts on general causation, with a report from 20

each expert setting forth ‘a complete statement of all opinions the witness will

express on general causation and the basis and reasons for them.’” Judge Weisberg

highlighted the fact that, in imposing this obligation, the order had used the “same

language that would have been used in a comparable order from a federal district

court operating under [Daubert/]Rule 702,” citing to Federal Rule of Civil Procedure

26(a)(2)(B)(i). Judge Weisberg did, however, allow plaintiffs’ experts to supplement

their reports with new studies and revise the manner in which they expressed their

opinions to account for the new admissibility standard.

Lastly, Judge Weisberg acknowledged in a footnote that there might be a

question about the fate of the nonMurray cases—which “ha[d] been stayed by

agreement of the parties, including [an] agreement to be bound by the court’s

ultimate ruling in the ‘Murray cases.’” Judge Weisberg noted that the issue had been

raised at the December 2016 hearing and further stated, inaccurately, that plaintiffs

had argued that “it [wa]s unfair to hold them to their agreement now that the outcome

will be determined by a new standard, which was not in effect at the time they

adopted their strategy” (in fact the court had raised this concern on the nonMurray

plaintiffs’ behalf). But Judge Weisberg said nothing more on the subject, observing

that “[t]he parties have not briefed that issue.”

After Judge Weisberg issued his March 2017 post-remand ruling adhering to

the plan to address first the issue of the admissibility of the plaintiffs’ experts’ 21

testimony regarding general causation and to limit discovery to that end, the new

presiding judge, Judge Anita Josey-Herring, asked the parties in a number of

nonMurray and nonBrooks cases if they intended to be bound by the result of Phase

I of the Murray litigation even though they had not so stipulated. Counsel for the

Murray and Brooks plaintiffs, who also represented this collection of plaintiffs,

responded that they would “be bound by the general causation outcome in the

Murray cases,” and defendants responded likewise. Thereafter Judge Josey-Herring

issued a number of sua sponte orders in these cases in which she noted that the trial

court’s “ruling on the admissibility of expert witness testimony on general causation

in the Murray Cases, will apply to this case, as it will apply to all related cases

pursuant to prior orders of this court.” Several months later, the defendants filed

motions for stays in subsequently filed nonMurray and nonBrooks cases “with the

consent of Plaintiffs” in nonMurray, nonBrooks cases and in which the defendants

stated that “[t]he parties ha[d] agreed to be bound by the general causation ruling in

the consolidated Murray cases.” As in her sua sponte orders, Judge Josey-Herring

granted these consent motions and stated that her “ruling on the admissibility of

expert witness testimony on general causation in the Murray cases will apply to this

case, as it will apply to all related cases pursuant to prior orders of this court.” Her

successor, Judge Jennifer M. Anderson, similarly continued through 2020 to grant 22

consent motions to stay later-filed nonMurray and nonBrooks cases “until [the]

determination [of] the general causation issue in the Murray cases.”

In the meantime, between 2017 and 2021, the Murray parties engaged in more

litigation in front of Judge Josey-Herring and the successor presiding judge in the

Murray (and Brooks) cases, Judge Alfred S. Irving, related to the Murray plaintiffs’

efforts to supplement their expert reports, present new experts, and obtain broader

discovery. Because we reviewed and affirmed the rulings by Judge Josey-Herring

and Judge Irving in Motorola III, we do not detail that litigation here.

E. The NonMurray Plaintiffs’ 2021 Motion to Lift the Stay

In July 2021, now five years after this court’s remand in Motorola II, all of

the nonMurray plaintiffs—including the Brooks plaintiffs—filed a motion to lift the

stays in their cases. These plaintiffs conceded that “some” of them had

“agreed . . . that the general causation expert witness admissibility rulings in the

Murray Cases will apply for the sake of efficiency and non-duplication,” although

they did not specifically acknowledge the stipulations that all but one of the Brooks

plaintiffs had filed, much less parse the language of these stipulations. Nevertheless,

they sought to argue that the scope of these agreements was narrow. Alternatively,

they asserted that “the science, research[,] and studies [had] continued to

significantly evolve” and “the expert admissibility standard [had] unexpectedly 23

changed.” For these reasons, the nonMurray plaintiffs argued that they would “be

prejudiced if their cases continued to be held in abeyance” and that the stays should

thus be lifted. Judge Irving denied the motion.

F. The Summary Judgment Ruling in the Brooks Cases after the Daubert/Rule 702 Ruling in the Murray Cases

Judge Irving held a Daubert/Rule 702 hearing in September 2022 “to

determine whether to admit the testimony and opinions of [the Murray] Plaintiffs’

expert witnesses regarding general causation, i.e., whether non-ionizing radiation

from cellphones has a non-thermal effect that causes, promotes, or accelerates the

growth of brain tumors, specifically gliomas and acoustic neuromas.” He concluded

in April 2023 that none of the expert testimony proffered by the Murray plaintiffs

was admissible, and he ultimately granted summary judgment to the defendants in

those cases because the plaintiffs lacked the requisite expert testimony to support

their claims.

Days later, for the purpose of summary judgment briefing, Judge Irving

consolidated the eighteen Brooks cases, see supra note 6, pursuant to Superior Court

Rule of Civil Procedure 42, based on their similar procedural posture and their

“written consent to be bound by the Court’s exclusion of expert testimony in the

Murray cases.” The defendants then moved for summary judgment in these cases

based on the lack of admissible expert testimony. In their written opposition, the 24

Brooks plaintiffs argued that (1) they “never agreed to be bound by the Daubert/Rule

702 proceedings [in the Murray cases] (only by Frye/Dyas)”; (2) they had not agreed

to the particular rulings in the Murray cases limiting the experts who could be

named, the expert reports that could be submitted, or the discovery that could be

obtained; and (3) it would be unreasonable to hold them to any such agreement

“given the large passage of time since the Murray plaintiffs named their general

causation witnesses and the significant scientific progress occurring during such

passage of time.” But at the hearing on the motion, plaintiffs’ counsel retreated from

the first two arguments, acknowledging that they were “not going to suggest to the

court today that there was not an agreement in place in these cases” and asserting

that the “focus should not be on the agreements of the part[ies].” Instead, they made

the unfairness of holding them to their agreements the centerpiece, stressing that the

trajectory of the Murray litigation and the change in the admissibility standard had

been unforeseen and noting “the law recognizes that a change in circumstances . . .

can at times cause an agreement to be altered, something that was binding to not be

binding.”

In his order granting summary judgment, Judge Irving determined that the

Brooks plaintiffs had agreed to be bound by both the substantive result and the case

management arrangements in the Murray cases, and thus they lacked the requisite

expert testimony to support their claims. This timely appeal followed. 25

II. Analysis

A. Whether the Brooks Plaintiffs Agreed to be Bound by the Outcome of the Expert Admissibility Litigation in the Murray Cases 10

In our legal system, there is “deep-rooted historic tradition that everyone

should have his own day in court.” Taylor v. Sturgell, 553 U.S. 880, 892-93 (2008).

Accordingly, an individual generally “is not bound by a judgment in personam in a

litigation in which he is not designated as a party or to which he has not been made

a party by service of process.” Id. at 893. But there are exceptions to this general

rule, such as when a party agrees in advance—either expressly or implicitly—to be

bound by a legal ruling in another case where they are not a party (or in privity with

the party). Id. “For example, if separate actions involving the same transaction are

brought by different plaintiffs against the same defendant, all the parties to all the

actions may agree that the question of the defendant’s liability will be definitely

determined, one way or the other, in a test case.” Id. (quoting D. Shapiro, Civil

Procedure: Preclusion in Civil Actions 77-78 (2001) (citation modified)); see also

Restatement (Second) of Judgments § 40 (1982) (recognizing that “[a] person

10 The Brooks plaintiffs’ lead argument to this court is that they should not have been bound by the outcome of the expert admissibility litigation in the Murray cases because “the requirements for collateral estoppel were not met.” We do not address this argument because the trial court did not employ a collateral estoppel analysis, see supra Part I.F., though we tend to agree that a collateral estoppel analysis would ill-fit the Brooks plaintiffs’ forward-looking agreements to be bound by litigation that was not yet final at the time of their agreements. 26

having a claim or defense paralleling or related to other litigation may agree that the

outcome of the other litigation will be determinative of the issues in his case” and

that “[a]n agreement to be bound by the result of another action may be

express . . . [or] implied from conduct and manifestations of intention”); cf. § 4453

Preclusion by Consent and Estoppel by Conduct, 18A Fed. Prac. & Proc. Juris.

§ 4453 (3d ed.) (acknowledging that “[t]he repose and reliance interests generated

by a judgment may deserve protection against nonparties for reasons of acquiescence

that depart from any of the common ‘privity’ theories of participation,

representation, or property” and that such acquiescence can take the form of “actual

consent” or “estoppel by conduct”). “Whether there is such an agreement, and its

scope, is a matter of inference from all the circumstances,” Restatement (Second) of

Judgments § 40, which presents a legal question that we review de novo. See Kearns

v. Chrysler Corp., 32 F.3d 1541, 1545 (Fed. Cir. 1994) (explaining that “[t]he proper

interpretation of the parties’ pretrial stipulation [to be bound by a judgment in

another case] . . . presents a legal question that we address de novo”); cf. Bell v.

Weinstock, Friedman & Friedman, P.A., 341 A.3d 1, 9 (D.C. 2025) (“We . . . review

de novo whether a claim is barred by res judicata.”).

To determine whether the Brooks plaintiffs agreed to be bound by the expert

admissibility rulings in the Murray cases, we look first to the joint stipulations the 27

Brooks parties filed. 11 The Brooks plaintiffs acknowledge these stipulations but

dispute their scope, arguing that (1) they “expressly agreed to be bound only by the

results of the Frye/Dyas hearing . . . in the Murray cases,” and (2) they did not

reflect the Brooks plaintiffs’ agreement “to forgo general causation discovery of their

own, much less to be bound by the Murray plaintiffs’ case management schedule.”

When reviewing a written agreement, this court interprets it “as a whole, giving a

reasonable, lawful, and effective meaning to all its terms, and ascertaining the

meaning in light of all the circumstances surrounding the parties at the time the

contract was made.” Nest & Totah Venture, LLC v. Deutsch, 31 A.3d 1211, 1219

(D.C. 2011) (internal quotations omitted). We ask whether a reasonable person

would have understood what the contract meant, “presum[ing]” that person

“know[s] all the circumstances surrounding the contract’s making” and deeming that

person “bound by usages of the terms which [it] knows or has reason to know.” Id.

Applying this standard, we are unpersuaded by the Brooks plaintiffs’ arguments,

which, even when they are grounded in the actual text of the stipulations, seek to

interpret them wholly out of context of what the signers—counsel for both parties—

knew about “all the circumstances surrounding” their agreements.

11 As noted above, all but one set of the Brooks plaintiffs, the DeRosa plaintiffs, filed a written stipulation. We address the DeRosa plaintiffs below. 28

The Brooks plaintiffs first argue that they expressly agreed to be bound only

by the “results of the ‘Frye/Dyas hearing’ or the ‘Frye/Dyas issues’ in the Murray

cases.” Although it is true that the Brooks parties agreed in their joint stipulations

that “the Court’s ruling in the Frye/Dyas hearing in the Murray cases will apply to

this case,” see supra Part I, we conclude that the reference to “a Frye/Dyas hearing”

cannot be literally understood as a reference to a hearing under a particular

evidentiary standard; rather, when examined in the context of the procedural history

of the Murray and Brooks cases, it is only reasonably understood as a synonym for

“an expert admissibility hearing.”

By the time the Brooks parties filed their joint stipulations, the trial court,

mindful of the growing number of plaintiffs’ cases regarding the alleged harmful

effects of cellphone radiation and wary of getting bogged down in an array of pretrial

proceedings, had structured the Murray cases so that the litigation of the expert

admissibility issue as to “general causation” would be the gateway issue. As Judge

Burgess discussed with the parties at the November 2011 and September 2012

hearings and incorporated into the case management order, if the Murray plaintiffs

could present admissible expert testimony that cellphone radiation could cause the

types of adverse health effects alleged, their cases could move forward; if not, their

cases would be dismissed. All the court’s references to Frye/Dyas simply reflect that

this was the governing expert admissibility standard at the time—not that the specific 29

Frye/Dyas standard was foundational to the court’s decision making regarding its

bifurcation ruling. Put another way, the focus in the Murray cases was on

establishing whether plaintiffs had admissible expert testimony about “general

causation,” and there is no indication in the record that the litigation of the Murray

cases would have been structured any differently had the standard for expert

admissibility been Daubert/Rule 702 from the outset. To the contrary, as Judge

Weisberg acknowledged, the order that directed the disclosure of expert reports

following discovery presciently used “the same language for expert reports that

would have been used in a comparable order from a federal district court,” where

the Daubert/Rule 702 test is employed. 12 See supra note 2.

In light of this procedural history—fully known to counsel who signed the

Brooks plaintiffs’ joint stipulations because the very same counsel represented the

Murray plaintiffs, see supra note 6—the stipulations reflect an informed, strategic

choice: the Brooks plaintiffs chose to let the Murray plaintiffs go first to see if they

could get a favorable ruling on expert admissibility regarding general causation. And

when the Brooks plaintiffs agreed to be bound by the court’s ruling after a

12 Judge Weisberg highlighted this point when he rejected the Murray plaintiffs’ argument on remand post-Motorola II that the change in the expert admissibility standard necessitated a rethinking of the scope of Phase I discovery or the case management order more generally. This court concluded in Motorola III that Judge Weisberg had “correctly” understood Judge Burgess’s Case Management Order. 339 A.3d at 156. 30

“Frye/Dyas” hearing, they accepted the general framework for litigating expert

admissibility first—not just the specific label attached to the hearing for that

purpose. 13

We do not deny that there are cases like Keller Tank Servs. II v. Comm’r of

Internal Revenue, 854 F.3d 1178, 1194 (10th Cir. 2017), in which a court has held

(in the Brooks plaintiffs’ words) that “an agreement to be bound by the results of one

hearing cannot be extended to other related proceedings or matters.” We simply

disagree that the Brooks plaintiffs’ stipulations can be reduced to agreements to be

bound by the results of a Frye/Dyas hearing when their language is read in historical

context.

13 We focus on what the Brooks plaintiffs knew before counsel signed and filed stipulations on their behalf. But the Brooks plaintiffs’ argument that they thought they had agreed to be bound only by the outcome of a Frye/Dyas hearing in the Murray cases is also undercut by their behavior after this court decided Motorola II and adopted the Daubert/Rule 702 expert admissibility standard. See Akassy v. William Penn Apartments Ltd. P’ship, 891 A.2d 291, 299 (D.C. 2006) (explaining that when interpreting contracts, “[t]he reasonable person standard is applied both to the circumstances surrounding the contract and the course of conduct of the parties under the contract”). For years after the issuance of the Motorola II decision, none of the Brooks plaintiffs who had filed stipulations binding themselves to the expert admissibility litigation in the Murray cases gave any indication that they no longer understood themselves to be bound by these stipulations or sought to take any action independent of the Murray plaintiffs. Nor did they protest when the trial court stated, in later orders staying new cases brought by their counsel, that its “ruling on the admissibility of expert witness testimony on general causation in the Murray Cases, will apply to this case, as it will apply to all related cases pursuant to prior orders of this court.” 31

We also disagree that any of the trial judges in this case actually interpreted

the language of these stipulations to align with the Brooks plaintiffs’ appellate

argument. Thus, we reject the Brooks plaintiffs’ argument that Judge Weisberg

“recognized[] these agreements were ‘based in part on the understanding that the

Dyas/Frye test would determine the outcome.’” The Brooks plaintiffs quote

incompletely from a footnote in Judge Weisberg’s March 2017 order denying the

Murray plaintiffs’ request for additional discovery based on the change in the

admissibility standard in Motorola II. In that footnote, Judge Weisberg observed that

an issue had been raised about the continued force of the nonMurray parties’

“agreement[s] to be bound by the court’s ultimate ruling in the ‘Murray cases,’ based

in part on the understanding that the Dyas/Frye test would determine the outcome.”

But he did not examine the language of the stipulations; to the contrary, because “the

parties ha[d] not briefed that issue,” Judge Weisberg declined to address the meaning

or continued force of these agreements. Thereafter no one raised the issue of whether

the nonMurray plaintiffs were still bound by the Murray litigation until 2021 when

the nonMurray plaintiffs collectively moved to lift the stays in their cases, but the

language of the Brooks plaintiffs’ stipulations was not examined at that time either.

See supra Part I.E. Thus no trial court resolved whether the Brooks plaintiffs’

agreements bound them to the outcome of the court’s ruling in the Murray cases

regarding expert admissibility on general causation until Judge Irving addressed that 32

question in his order granting the defendants summary judgment—the order

currently on appeal.

The Brooks plaintiffs also argue that they never agreed “to forgo general

causation discovery of their own, much less to be bound by the Murray plaintiffs’

case management schedule.” We return to the language of the stipulations, which the

Brooks plaintiffs largely ignore. The Brooks plaintiffs expressly acknowledged in

those agreements that the Murray cases were “currently in ‘Phase I discovery,’”

which—as the Murray parties extensively discussed at the November 2011 and

September 2012 hearings prior to the Brooks parties’ stipulations—was “limited” to

determining whether the Murray plaintiffs had admissible expert testimony about

general causation (i.e., whether their experts could testify that cellphone radiation

could cause the adverse health effects alleged). The Brooks plaintiffs further

acknowledged that the “operative Case Management Schedule governing the

Murray cases . . . contemplate[d] a Frye/Dyas hearing on the threshold issue of

general causation to be held following the conclusion of Phase I Discovery in the

Murray cases.” And as noted above, the Brooks plaintiffs then agreed that the trial

court’s expert admissibility ruling “in the Murray cases will apply to . . . this case.”

Read together, the only reasonable understanding of these provisions in the

joint stipulations is that the Brooks plaintiffs agreed to be bound not only by the trial

court’s expert admissibility ruling, but also by the bifurcated case management 33

framework that generated it. The Brooks plaintiffs’ contrary argument—that they

always reserved the right to engage in “general causation discovery of their own”

and to be governed by their own case management schedule—has no record

foundation. There is nothing in the stipulations or elsewhere in the contemporaneous

record indicating that the Brooks plaintiffs sought to maintain some measure of

independence vis-à-vis general causation discovery or management of their nascent

cases prior to a resolution of the expert admissibility question in the Murray cases.

The absence of any reservation of rights is particularly conspicuous given the

Murray plaintiffs’ failed attempt at the September 2012 hearing to persuade the court

to give them broader discovery only weeks before the Brooks plaintiffs began filing

their joint stipulations. Moreover, any argument that the Brooks plaintiffs retained

some independent right to additional discovery or case management makes no sense

in light of their agreement to stay their cases and to be bound by the trial court’s

expert admissibility ruling regarding general causation in the Murray cases. Unless

the trial court ruled that the plaintiffs had admissible expert testimony allowing their

case to move forward, the Brooks plaintiffs had no need for additional discovery;

and if the court ruled in the Murray (and Brooks) plaintiffs’ favor, they were assured

of it.

One subset of Brooks plaintiffs, the DeRosa plaintiffs, did not file a stipulation

agreeing to be bound by the trial court’s expert admissibility ruling regarding general 34

causation and its predicate discovery and case management rulings. In their brief to

this court, the Brooks plaintiffs made no argument that this court should treat the

DeRosa plaintiffs differently; 14 nevertheless, we briefly explain why we deem the

DeRosa plaintiffs to have implicitly agreed to the same material terms as the Brooks

plaintiffs. The DeRosa plaintiffs filed their case after Judge Weisberg certified his

Frye/Dyas ruling in the Murray cases for interlocutory appeal. They then expressly

consented to have their pending scheduling conference canceled and their case

transferred to Judge Weisberg because “the Murray cases and other related cases

currently pending before Judge Burgess involve some common issues of fact and

law.” When the court sua sponte issued an order staying the DeRosa case pending

decision by this court in the Murray cases’ interlocutory appeal and directing that

“the court’s rulings on the admissibility of expert witness testimony on general

causation in the Murray cases, following remand . . . will apply to this case, as it will

apply to all related cases pursuant to prior orders of this court,” the DeRosa plaintiffs

made no protest, nor did they subsequently attempt to take any action to indicate that

they, unlike the other Brooks plaintiffs, had not agreed to be bound by the trial court’s

14 Instead, the Brooks plaintiffs argued that the trial court should not have interpreted their stipulations to align with the language of the court’s order in DeRosa, see supra note 9 & infra. But we interpret the language of the Brooks plaintiffs’ joint stipulations de novo without reference to the subsequent DeRosa order. See supra Part II.A. 35

expert admissibility ruling regarding general causation or its predicate procedural

decisions. Citing the Second Restatement of Judgments, Section 40, comment b,

illustration 3, the Brooks plaintiffs argue that implied agreements binding one party

to the litigation of another should not be inferred except under the plainest

circumstances. We conclude such plain circumstances are present in this case.

In short, all of the Brooks plaintiffs agreed, expressly or implicitly, that they

would be bound both by the trial court’s expert admissibility ruling regarding general

causation and its predicate discovery and case management rulings in the Murray

cases. Indeed, they arguably abandoned their arguments to the contrary at the 2023

summary judgment hearing, when they told Judge Irving that they were “not going

to suggest . . . that there was not an agreement in place in these cases,” and urged the

court instead to deem these agreements, whatever their terms, unenforceable. The

Brooks plaintiffs make similar enforceability arguments on appeal, and we turn to

those arguments now.

B. Whether the Brooks Plaintiffs Should be Held to Their Agreements

The Brooks plaintiffs argue that, even if they did agree to be bound by the

court’s expert admissibility ruling regarding general causation in the Murray cases

and the procedural decisions that preceded it, they withdrew their consent when they

moved to lift the stays in their cases in 2021. They also argue that it would be unfair 36

under the circumstances to bind them to the rulings in the Murray cases, both

because the court’s rulings in the Murray cases were procedurally and substantively

wrong, and because of the change in the science with the passage of time. We address

each of these arguments in turn.

The Brooks plaintiffs assert that “[a]fter it became clear that the Murray

plaintiffs would be prohibited from adding new experts, the Brooks plaintiffs, along

with plaintiffs in other nonconsolidated cases, promptly moved to lift the stay

orders” in their cases and that, in “rul[ing]” on this motion, Judge Irving “recognized

that the ‘weight that a determination in the Murray cases may hold in the

subsequently filed cases is not necessarily clear.’” First, we note that Judge Weisberg

had ruled that the Murray plaintiffs could not name new experts in March 2017,

shortly after the remand in Motorola II; thus the nonMurray plaintiffs’ motion to lift

the stays in their cases in 2021 was hardly a “prompt” response to this

development. 15 See supra note 13 (highlighting the Brooks plaintiffs’ inaction during

15 Moreover, even before Judge Weisberg ruled, counsel for the Murray, Brooks, and other nonconsolidated plaintiffs knew he was skeptical of the Murray plaintiffs’ need to name new experts or obtain “full discovery” post-remand. Judge Weisberg made these views clear at the December 2016 hearing. Counsel for the Murray, Brooks, and other nonconsolidated plaintiffs not only attended that proceeding, they repeatedly indicated that they were appearing on behalf of the Murray and nonMurray plaintiffs alike: they told the court that they were “comfortable” that the court had only noticed the hearing in the Murray cases and informed the court that they had meant to agree to a stay in six newly-filed nonMurray cases, and when the court asked whether the nonconsolidated cases 37

this time period). Second, the Brooks plaintiffs incompletely quote Judge Irving’s

2021 order denying their motion to lift the stays. 16 Judge Irving never “ruled” (as the

Brooks plaintiffs assert) that whether they should be bound by their stipulations was

debatable, much less doubtful, because the nonconsolidated plaintiffs never

referenced their stipulations in their motion to lift the stays. Rather, Judge Irving

simply acknowledged the nonconsolidated plaintiffs’ argument that “the language of

the several stay orders has not been uniform, and the weight that a determination in

the Murray cases may hold in the subsequently filed cases is not necessarily clear,

at this juncture.” (emphasis added) In other words, Judge Irving did not examine the

language of the Brooks plaintiffs’ stipulations, as this court has done, and he merely

indicated generally that the effect of the Murray cases on the nonconsolidated cases

(which encompassed many more cases than the Brooks cases) had yet to be finally

resolved (as it was when Judge Irving granted the Brooks defendants’ summary

judgment motion, the order now on appeal).

But even if the Brooks plaintiffs’ adoption of the motion to lift the stays in all

the nonMurray cases in 2021 should also be understood as an attempt to revoke their

should split off from the Murray cases, they argued instead that these cases should continue to be litigated together “for efficiency[’s]” sake. 16 This argument is in some tension with the Brooks plaintiffs’ argument to this court, rejected above, that Judge Weisberg had already “recognized” their agreements related only to a Frye/Dyas hearing. Notably, the Brooks plaintiffs did not argue to Judge Irving that Judge Weisberg had already resolved this question. 38

agreements to be bound by the Murray litigation regarding expert admissibility on

general causation, we see no reason why that attempted revocation should be given

any force now. The Brooks parties made these agreements before the Murray parties

finally litigated the admissibility of expert testimony for the sole purpose of

streamlining the Brooks cases. Either the Brooks plaintiffs would get the benefit of

a breakthrough ruling if the Murray plaintiffs prevailed, or the defendants would

have the basis to seek a clean exit in eighteen additional cases. And when the parties

made these agreements, they both assumed the risk that the litigation in the Murray

cases might take some twists and turns. The Brooks plaintiffs cite no authority, and

we are aware of none, that supports their argument that they should not be held to

these agreements just because, years after they entered into them, they indicated that

they no longer desired to be bound by them.

The Brooks plaintiffs separately argue that it would be unfair to hold them to

their agreements. As their first line of attack, they argue that the Murray plaintiffs

were denied a full and fair opportunity to litigate the issue of the admissibility of

their experts at their Daubert/Rule 702 hearing and that the trial court’s

determination that none of their proffered testimony was admissible was wrong. But

after the Brooks plaintiffs filed their initial brief to this court, this court rejected in

Motorola III the Murray plaintiffs’ similar, if not identical, challenges to the

procedural and substantive rulings in their cases. 339 A.3d at 169-74. The Brooks 39

plaintiffs fail to explain why their argument is not foreclosed by our decision in

Motorola III, except to assert, without citation to any authority, that they, unlike the

Murray plaintiffs, are entitled to de novo review of the court’s trial rulings in the

Murray cases. But the full and fair opportunity the Murray plaintiffs (and the Brooks

plaintiffs, by agreement) had to litigate the admissibility of their expert testimony

regarding general causation encompassed this court’s abuse of discretion review of

the trial court’s ruling. And the fact that this court reviews de novo whether the

Brooks plaintiffs are bound by the expert admissibility ruling in the Murray cases

does not mean that we will reexamine the correctness of these rulings in this appeal.

The Brooks plaintiffs also argue that it would be unfair to hold them to their

agreements because of the new science supporting their claims. But the Murray

plaintiffs made this same argument to us on appeal in Motorola III, and we rebuffed

it. We explained, “in a world of ever-evolving scientific developments, discovery

cannot be allowed to proceed indefinitely. There must be a limiting principle,”

otherwise

[e]very year . . . as research universities graduate the next class of doctoral students, plaintiffs would be able to add new expert witnesses in a bid to strengthen their case. As new peer-reviewed studies are published, existing experts would seek to continuously revise their opinions or add new opinions. Such a system would trigger ever more discovery such that cases could effectively never proceed to trial . . . [and] civil defendants would be deprived of the 40

opportunity to resolve claims against them, including by prevailing pretrial such as on summary judgment.

339 A.3d at 169. We reiterate our pronouncement in Motorola III that “[w]e cannot,

and do not, countenance such a system.” Id.

C. Response to the Dissenting Opinion

The dissent looks everywhere but to the express agreements that are central to

the resolution of this case: the joint stipulations, signed by both the Brooks plaintiffs

and the cellphone defendants, in which they committed to be bound by the outcome

of the expert admissibility litigation in the Murray cases and by the case management

orders leading up to it. Instead, taking events out of order and misreading selections

of the 8,000-plus-page record, the dissent constructs an alternate narrative in which

the Brooks plaintiffs agreed with the court (albeit only implicitly) to be bound by the

determination that the Murray experts could not testify based on their particular

expert reports but retained the right to unfettered discovery and to relitigate expert

admissibility with new experts or even the same experts with new expert reports.

This did not happen, nor do the Brooks plaintiffs argue that it did. But a few points

warrant elaboration.

Although the dissent never examines the Brooks parties’ joint stipulations on

their own terms, the dissent effectively concedes, see post at 51-55, the import of

their reference to the fact that the Murray cases were in “Phase I discovery” that 41

would lead to an expert admissibility hearing, the ruling of which the Brooks parties

“agreed . . . will apply” to their cases. 17 Supra at I.B. The dissent, however, attempts

to show that there was confusion even in the Murray cases about what Phase I

discovery entailed, and contends that plaintiffs’ counsel’s passing remark at the

September 2012 hearing that he would not have “stipulated” to the Murray case

management order in the Murray cases had he understood it to confine discovery so

narrowly shows that the plaintiffs did not later agree to such restrictions in the Brooks

cases. Post a 53-55. The dissent misunderstands the record. First, at the November

2011 hearing and in the December 2011 order, Judge Burgess unambiguously limited

the scope of discovery in Phase I of the Murray cases to that which was necessary

to rule on expert admissibility. See supra I.A. Second, plaintiffs’ counsel did not

“stipulate” to the December 2011 order; as Judge Burgess noted when counsel used

that word at the September 2012 hearing, the order came from the court and the court

alone. See supra note 3. Third, although plaintiffs’ counsel tried to argue that there

had been a “disconnect” about “general causation” terminology used at the

November 2011 hearing which was then incorporated in the December 2011 order,

17 The dissent states that the joint stipulations’ language “was incorporated verbatim in the November 29, 2012, ‘Order Granting Stipulat[i]on’ . . . that is the focus of [the dissent’s] analysis.” Post at 51 note 2. But as the language from the joint stipulations quoted in Part I.B. above demonstrates, the language of the joint stipulations went beyond the court’s orders (the dissent suggests there was only one such order; in fact, there were eighteen, one for each of the component Brooks cases, see supra Part I.B. & notes 8 & 9). 42

Judge Burgess never conceded such disconnect 18; if anything, he perceived the

Murray plaintiff’s claims of confusion to be part of an attempt to move the goal posts

and to extend discovery to the boundaries they had initially suggested in their

original bifurcation proposal. 19 Fourth, any actual misunderstanding the Murray

plaintiffs had about the scope of Phase I discovery leading up to the expert

admissibility ruling was squarely addressed at the September 2012 hearing, which

18 The dissent states that “Judge Burgess agreed with [plaintiffs’ counsel] that there had been a ‘disconnect in terms of the terminology.’” Post at 54. In fact, when the plaintiffs’ counsel argued that there had been a “disconnect” about what general causation meant at the November 2011 hearing, Judge Burgess rejected this argument, responding that he had “said very clearly” at that proceeding that the parties would have “staged discovery” with the “first stage [of] discovery aimed toward a Frye hearing.” Later, when plaintiffs’ counsel stated they were having a “disconnect here,” i.e., at the September 2012 hearing about the proper scope of discovery, Judge Burgess agreed with that statement, but reiterated that he was “very firm in [his] opinion that [in his December 2011 order he] was directing this hearing toward, this discovery toward Frye hearing, nothing more.” Subsequently, in his ruling that the plaintiffs’ motion to compel was founded on a “mistaken premise,” Judge Burgess allowed that he “may have at one point in the hearing confused things by saying at page 73 that the Frye hearing and discovery leading up to it would be, ‘directed toward whether there’s a consensus among the scientific community that cellphone radiation can cause one of these four tumors or other health effects’”; but he then stated that he had been “clear that we would be trying to ‘figure out whether you, i.e., the plaintiffs can make the Frye standard.’” In other words, Judge Burgess consistently rejected the argument that he had been unclear either at the November 2011 hearing or in his December 2011 order. See supra note 3. 19 This was the cellphone company defendants’ assessment of the Murray plaintiffs’ arguments, and they accused the Murray plaintiffs of “trying to blow . . . up” the case management plan leading up to the expert admissibility hearing, which was supposed to be “an efficient, quick, and rifle shot procedure.” 43

preceded the signing of the Brooks parties’ joint stipulations. 20 See supra I.A & B.

In short, at the point when plaintiffs’ counsel began signing these joint stipulations

on behalf of the Brooks plaintiffs, they could not have reasonably thought that either

the Murray plaintiffs (or the Brooks plaintiffs, derivatively) were entitled to

discovery beyond that which was necessary to litigate whether their experts had

admissible testimony about general causation.

The dissent also finds in the record an affirmative agreement between the

court and the Brooks parties that the Brooks parties would not be bound by the case

20 As the dissent highlights, post at 57-58 note 8, both the cellphone defendants and Judge Burgess indicated at that September 2012 hearing that the Murray plaintiffs could get broad discovery they sought if they “survived Frye”—i.e., if the Murray plaintiffs proved they had admissible expert testimony. The dissent then floats the possibility that, because the Murray plaintiffs literally did survive Frye when Judge Weisberg ruled under that now-retired standard that some of their experts could testify, the Brooks plaintiffs could reasonably have thought they were entitled to full discovery from that point forward. Id. But this line of reasoning disregards what we have already explained: the parties used “Frye” only as a shorthand reference for whatever standard would ultimately govern expert admissibility. See supra Part II.A. And the Brooks plaintiffs’ subsequent failure to make the argument the dissent raises for them buttresses our analysis. In the wake of Judge Weisberg’s nonfinal August 2014 expert admissibility ruling the Brooks parties tellingly never sought full discovery or otherwise treated Judge Weisberg’s ruling as having triggered such an entitlement. When Judge Weisberg issued a stay in the Murray and Brooks cases in October 2014 pending this court’s review of his ruling on appeal, see supra Part I.C., the Brooks plaintiffs did not seek to challenge that stay on the grounds that they were entitled to proceed to full discovery because the Murray plaintiffs had “survived Frye” in Superior Court. And when the Brooks plaintiffs eventually moved, in 2021, to lift the stays in their cases, they did not argue that they had been promised full discovery if the Murray plaintiffs “survived Frye,” no matter the fate of that ruling on appeal. See supra Part I.E. 44

management and scheduling orders in the Murray cases. Post at 52. Looking to

September 2012, the dissent focuses on the status hearing the court held regarding

the three new not-yet-Brooks plaintiffs after the court denied the Murray plaintiffs’

motion to compel. The dissent then asserts that “the resolution of th[is] status hearing

was that the court and the parties understood that the Brooks plaintiffs were not

joining the Murray cases for management or scheduling purposes.” Id. at 51. The

Brooks parties themselves do not argue that they had such an agreement, although

one would think they would be the first to tell us about it. Again, the dissent

misunderstands the record. The issue the court raised at the status hearing for the

three new plaintiffs was whether their cases should be consolidated with the Murray

cases. See supra note 5. The new plaintiffs never spoke to this issue; rather the only

parties who did so were the cellphone company defendants. Id. And the cellphone

company defendants made clear that their opposition to consolidating these three

new cases with the Murray cases was based on their desire to avoid conducting

discovery about the individual plaintiffs (as contemplated by Phase I discovery in

the Murray cases), and to stay focused on the admissibility of plaintiffs’ expert

testimony regarding general causation. See supra note 1. The cellphone defendants

certainly did not agree to preserve the Brooks plaintiffs’ ability either to conduct

broad “general causation discovery” unrelated to expert admissibility or to present

new expert testimony or reports, independent of and subsequent to the expert 45

admissibility litigation in the Murray cases. To the contrary, as memorialized in the

joint stipulations signed in the months following the September 2012 hearing, the

Brooks parties both agreed they would be bound by the Murray expert admissibility

ruling and the case management rulings that led up to it.

Although the dissent determines, based on its reading of the record, that “the

Brooks plaintiffs impliedly agreed to be bound by the rulings in Murray about the

admissibility of expert witness causation testimony,” Post at 59, it then attempts to

distinguish between those rulings and “rulings that enforced the Murray case

management order.” Id. at 61. But tellingly, the Brooks plaintiffs have never sought

to sort out the rulings leading up to the Murray cases’ expert admissibility ruling that

applied to them and those that did not—and for good reason. The record does not

support such parsing. As discussed, the joint stipulations bound the Brooks parties

to the procedural rulings preceding the expert admissibility determination in the

Murray cases as a package. Nothing in their terms invites the line-drawing the

dissent now attempts on the Brooks plaintiffs’ behalf.

Lastly, because the dissent never examines the Brooks parties’ joint

stipulations, it never confronts the central problem that its reconstruction of the

record presents: why would both parties agree to a heads-the-plaintiffs-win-tails-the-

defendants-lose arrangement whereby the Brooks parties’ cases would be stayed

indefinitely for the Murray expert admissibility litigation but once that litigation was 46

over, the Brooks plaintiffs could engage in full discovery and take another run at

admitting new experts or even the same experts based on new expert reports? The

fact of the matter is that both the Brooks plaintiffs and the cellphone company

defendants agreed that the expert admissibility ruling and predicate procedural

rulings in the Murray cases would apply to the Brooks cases—i.e., that it would

resolve whether the Brooks plaintiffs had admissible expert testimony in their

cases—because each saw a possible strategic advantage to such an agreement. The

plaintiffs hoped that this ruling would be the spearpoint of further discovery and

litigation; the defendants hoped this ruling would be the immediate demise of both

the Murray and the Brooks cases. To conclude otherwise, as the dissent does, strips

the joint stipulations of all reasonable meaning. 21

The dissent closes by suggesting, concededly without any factual foundation,

that the cellphone companies may be harboring internal documents that show that

their products do in fact cause cancer—much as tobacco companies did for

decades—thereby thwarting scientific research that would prove their liability. Id.

21 In a footnote, the dissent attempts to sidestep this illogic by asserting that the cellphone company “defendants were not counterparties to the Brooks plaintiffs’ implied agreement” that the dissent (but not the Brooks plaintiffs themselves) claims the Brooks parties had with the court. Post at 60 note 9. But again, as the majority opinion explains and the dissent ignores, all but one of the Brooks parties had express, bilateral written agreements in the form of their joint stipulations (and we deem the one exception to have impliedly agreed to the same terms). See supra at Part II.A. 47

at 64-66. Building on this unfounded analogy, the dissent states, “even if it is still

the case that no American court had accepted the theory that non-ionizing radiation

from cellphones can cause the types of adverse health effects that the Brooks

plaintiffs allege, that is not a reason to bind the Brooks plaintiffs to the outcome in

Murray.” Id. at 66. But of course, the majority opinion does not “bind the Brooks

plaintiffs to the outcome in Murray” because of a lack of evidence or the novelty of

their claims; it binds the Brooks plaintiffs to the outcome of the expert admissibility

litigation in the Murray case, which this court upheld in Motorola III, because the

Brooks plaintiffs agreed to be so bound.

* * *

For the reasons stated above, we conclude that the Brooks plaintiffs agreed to

be bound by both the trial court’s substantive ruling regarding whether the Murray

plaintiffs had admissible expert testimony about general causation, and by all

predicate procedural rulings. We discern no reason that the trial court should have

declared these agreements nonbinding. And because the trial court determined in the

Murray cases that the plaintiffs could not satisfy the admissibility standards of

Daubert/Rule 702, we affirm the court’s decision to grant the defendant cellphone

companies summary judgment in the Brooks cases because the Brooks plaintiffs

lacked the requisite expert testimony to prove their case. 48

So ordered.

APPENDIX LIST OF COUNSEL Jesenka Mrdjenovic argued for appellants. The following were on the brief: Jeffrey B. Morganroth, Mayer Morganroth, and Cherie Morganroth, Morganroth & Morganroth, PLLC; James F. Green and Michelle A. Parfitt, Ashcraft & Gerel LLP; Hunter Lundy, Rudie R. Soileau, Jr., and Kristie Hightower, Lundy LLP; Victor Pribanic, Pribanic & Pribanic LLP; and Steven R. Hickman, Frasier, Frasier, & Hickman, LLP. Terrence Dee argued for appellees. The following were on the brief: Terrence Dee (admitted pro hac vice), Karalena G. Senese (admitted pro hac vice), Hannah Gallagher (admitted pro hac vice), Rand Brothers, and Dion J. Robbins (admitted pro hac vice), counsel for Motorola Mobility LLC, Motorola Solutions, Inc. f/k/a Motorola Inc. and Motorola Inc.; Kelley Connolly Barnaby, Scott A. Elder (admitted pro hac vice), and David Venderbush (admitted pro hac vice), counsel for Cellco Partnership d/b/a Verizon Wireless; Bell Atlantic Mobile, Inc. formerly d/b/a Bell Atlantic Nynex Mobile; and Verizon Wireless Inc.; Thomas C. Watson and Curtis S. Renner, counsel for AT&T Inc., AT&T Wireless Services Inc., Cingular Wireless LLC, and related entities; Seamus C. Duffy (admitted pro hac vice), counsel for AT&T Inc., AT&T Wireless Services Inc., Cingular Wireless LLC, and related entities; Jeffrey D. Skinner and Thomas M. Crispi, counsel for Apple Inc.; Paul J. Maloney, Matthew D. Berkowitz, and Kelly Cousoulis, counsel for Audiovox Communications Corporation; Howard D. Scher (admitted pro hac vice), Carrie G. Amezcua, and Andrew G. Hope, counsel for Cellular One Group; Michael D. McNeely and Vicki L. Dexter, counsel for Cellular Telecommunications & Internet Association; Eric M. Leppo, counsel for Cricket Wireless, LLC and Sanyo North America Corporation n/k/a Panasonic Corporation of North America; Matthew Wright, counsel for Blackberry Corp. and HTC America, Inc.; Matthew Wright, counsel for HTC America, Inc.; Brianna Lynn Silverstein, counsel for HP Inc., successor in interest to Palm; Sean M. Reilly, counsel for LG Electronics MobileComm U.S.A., Inc.; Mike Stenglein (admitted pro hac vice), Richard W. 49

Stimson (admitted pro hac vice), Lohr Beck (admitted pro hac vice), Steven M. Zager, and Erica Franzetti, counsel for Microsoft Mobile Oy, successor in interest to Nokia, Inc.; Stephen T. Fowler and Frank Citera (admitted pro hac vice), counsel for Sony Electronics Inc.; Jaime W. Luse, counsel for Samsung Electronics America, Inc., the successor by merger to Samsung Telecommunications America, LLC; Shannon Schoultz, counsel for Sprint Nextel Corporation f/k/a Nextel Communications Sprint Spectrum, L.P. d/b/a Sprint PCS; Ardelle M. Bahar and Renee B. Appel, Counsel for Telecommunications Industry Association; Michael Scoville, Daniel P. Ridlon (admitted pro hac vice), and Mary Rose Hughes, counsel for T-Mobile USA, Inc. and Metro PCS Communications, Inc.; and Elizabeth M. Chiarello (admitted pro hac vice), Frank R. Volpe, and Eugene A. Schoon (admitted pro hac vice), counsel for United States Cellular Corporation.

THOMPSON, Senior Judge, dissenting: The opinion for the court concludes that

“the Brooks plaintiffs agreed—either expressly or implicitly—to be bound by both

the substantive outcome of the Murray litigation and all predicate procedural

rulings.” Ante at 3. The opinion thus upholds the Superior Court’s summary

judgment ruling that was to the same effect: that the Brooks plaintiffs were “bound

by the substantive result in Murray” (a judgment in favor of the cellphone company

defendants upon exclusion of all of the Murray plaintiffs’ experts) and also “bound

by the case management arrangements in Murray,” such that the Brooks plaintiffs

were “limited to the same roster of experts as the Murray plaintiffs” and “precluded

from proffering other expert testimony in support of their claims.” 50

For the reasons set out below, I am unable to agree with my colleagues’

conclusion. I therefore respectfully dissent.

I. The record does not support a determination that the Brooks plaintiffs were bound by the case management schedule, including the expert- designation deadline, in Murray. Judge Burgess convened a hearing on September 20, 2012, that addressed the

Murray plaintiffs’ motion to compel and, after a recess, also served as the initial

status hearing in the Brooks cases. Regarding the Brooks cases, Judge Burgess asked

whether his order should say that the cases would “be joined” to the Murray cases

“for case management purposes” and “go along with . . . what I schedule with

respect to the rest of [the Murray] case[s][.]” Mr. Dee, counsel for one of the

cellphone defendants, said, “I think we want to stay those three [Brooks] cases. I

think that’s what we talked about with the plaintiffs. We’re not going to conduct any

discovery” and “[w]e’re not going to move forward in those cases. We’re just going

to keep them[.]” 1Thereafter, Judge Burgess issued in each of the Brooks cases an

order, the November 29, 2012, “Order Granting Stipulat[i]on and Proposed Case

Management Order,” drafted by the parties, that “stayed [each Brooks case] in its

entirety pending the [c]ourt’s resolution of the Frye/Dyas hearing” in the Murray

1 As appellants have articulated it, the purpose of the proposed stay was “simply to avoid duplication of effort with respect to the general causation experts at issue in the Murray cases.” 51

cases but also directed that “the [c]ourt’s ruling in the Frye/Dyas hearing in the

Murray cases will apply to this case.” 2 Thus, the resolution of the September 20,

2012, status hearing was that the court and the parties understood that the Brooks

plaintiffs were not joining the Murray cases for case management or scheduling

purposes. The Brooks case were simply stayed, “in [their] entirety.” 3 The Brooks

cases were on no schedule or deadlines; and, in particular, the Brooks plaintiffs were

not made subject to a deadline for designating experts.

In concluding—quite to the contrary—in his summary judgment ruling years

later that the Brooks plaintiffs “are bound by the case management arrangements of

the Murray cases such that [they] cannot now name new experts on the general

causation question,” Judge Irving quoted and emphasized comments by

Mr. Morganroth, counsel for both the Murray and the Brooks plaintiffs, at the outset

2 The November 29, 2012, order granted the stipulations and proposed order drafted by (and signed by each of) the Brooks parties. The “Parties agree that . . .” language of the stipulations was incorporated verbatim in the November 29, 2012, “Order Granting Stipulat[i]on . . .” that is a focus of my analysis in the text above. 3 Staying an action in its entirety “stop[s] th[e] case dead in its tracks for an extended, indefinite period of time,” Prodoehl v. Strassner, No. 07-0699-WS-B, 2008 U.S. Dist. LEXIS 52220, at *3 (S.D. Ala. July 8, 2008), “to include any pending deadlines, discovery, or other procedural elements[.]” Carr Gottstein Props., L.P. v. Seritage Growth Props., L.P., No. 3:16-cv-00224-RRB, 2017 U.S. Dist. LEXIS 176867, at *4 (D. Alaska March 29, 2017). 52

of the September 20, 2012, hearing. 4 Mr. Morganroth told the court that the Brooks

plaintiffs had “agreed to be bound by the phase one discovery in the cases that are

currently pending [i.e., the Murray cases], as well as the Frye hearing, without

upsetting the schedule, without adding anything.” While that statement at first glance

appears to support Judge Irving’s ruling that the Brooks plaintiffs “are bound by the

case management arrangements of the Murray cases,” the discussion that followed

during the September 20, 2012, hearing revealed the “disconnect” that underlay Mr.

Morganroth’s initial representation and shows why his statement did not actually

reflect “the consent of the parties as expressed on the record at the status hearing[]

on September 20, 2012,” and was not a valid basis for Judge Irving’s conclusion.

Addressing the Murray plaintiffs’ motion to compel, Mr. Morganroth told the

court that the cellphone company defendants were resisting the Murray plaintiffs’

efforts to conduct discovery on the “general causation issue,” which Mr. Morganroth

identified as “whether cellphone radiation can cause the types of adverse health

effects that the plaintiffs have alleged.” Mr. Morganroth reminded Judge Burgess,

the then-presiding judge, that the December 7, 2011, case management order in

4 The November 29, 2012, “Order Granting Stipulat[i]on and Proposed Case Management Order” in the Brooks cases states that it was “in accordance with the consent of the parties as expressed on the record at the status hearing[] on September 20, 2012,” so it is important to look to what the parties’ counsel expressed during that status hearing. 53

Murray (the “Murray case management order”), which had been drafted by the

parties after a November 15, 2011, case management conference and which was a

“stipulated order,” had set a “deadline for fact discovery . . . related to general

causation,” with “the only qualification [being] that all such discovery shall be

initiated sufficiently in advance in order to be completed by th[e specified] date” and

with “no other qualification, restriction or limitation[.]”

Judge Burgess’s comments that followed made it clear that he had not

intended the Murray case management order to permit, in Phase I, fact discovery

that was as broad as Mr. Morganroth was describing. Rather, Judge Burgess

indicated, he intended that Phase I discovery in Murray would be directed narrowly

at whether plaintiffs’ designated experts used a generally accepted methodology in

reaching their conclusions. Importantly, Mr. Morganroth’s response to that

clarification was that the Murray plaintiffs “wouldn’t have stipulated to [the Murray

case management] order” if he had understood that the court did not intend to allow,

in Phase I, general fact discovery about “cause and effect,” i.e., about whether cell

phones cause injury. Mr. Morganroth explained that the fact discovery the Murray

plaintiffs sought—and had understood the Murray case management order to permit

as part of Phase I—included, inter alia, discovery of the defendants’ internal test

data, internal communications and disclosures to insurers that might contain

statements against interest, defendant-sponsored research studies that were 54

terminated or not completed, and subpoenas to third-party scientists about relevant

research, material that Mr. Morganroth said plaintiffs’ experts would want to

consider in preparing their opinions.5

Judge Burgess confirmed that a limited first-round of discovery (“first stage[]

discovery aimed toward a Frye hearing”) had indeed been his intent in issuing the

Murray case management order. Judge Burgess agreed with Mr. Morganroth,

however, that there had been a “disconnect in terms of the terminology” regarding

what the court and counsel for the Murray plaintiffs understood to fall within the

“general causation” Phase I discovery that the Murray case management order

allowed. Judge Burgess acknowledged that his remarks during the November 15,

5 Mr. Morganroth explained:

[A] careful expert would say, all right, I want to see all the data, I want to see if there’s anything else out there that I should be considering or not considering. I want to make sure that these studies that I’m relying upon, the methodologies are sound, so if there’s anything out there that I don’t know, I want to know. I want to know if there was any biases there or influence or manipulation. I want to know if you can get me more information on how the cellphone actually emits the radiation or exposes the individuals, if there were protective devices that were supposedly to protect and limit the radiation, why were they doing that, what were the dangers, risks. Those are the things, one expert can be an engineer just specifically on that topic. So you wouldn’t just present a general causation expert opinion without having the opportunity to conduct discovery . . . . [O]ur expert[s] should have the full story before they have to give an opinion . . . . 55

2011, hearing “may have. . . confused things,” and he told the parties that he would

“take a lot of the blame for [the court and the parties having] spent a certain amount

of time here using words that we’re not comfortable with together.” 6

In summary, the foregoing background indicates the following: the Brooks

plaintiffs, through counsel, expressed a willingness, as the September 20, 2012,

hearing commenced, “to be bound by the phase one discovery” in Murray, “without

upsetting the schedule” and “without adding anything.” But the record also contains

the representation by their counsel (again, the same lawyer who represented the

Murray plaintiffs), made after Judge Burgess clarified the limitations on the fact

discovery he was allowing during first phase of discovery in Murray, that counsel

would not have agreed on behalf of the Murray plaintiffs to a limited first-phase

discovery that precluded discovery of the defendants’ internal test data and

communications.

Given this background, I believe the record provides no basis for concluding

that counsel knowingly agreed on behalf of the Brooks plaintiffs to that same limited

6 Judge Burgess added, “let’s put the word general causation out, except insofar as it is defined as I put it. General causation is[,] do the . . . plaintiffs satisfy Frye [i.e., the then-governing standard for admission of expert testimony in the District of Columbia].” That appears to be the sense in which counsel for the Murray and Brooks plaintiffs, who also represented a group of nonMurray, nonBrooks plantiffs, used the term “general causation” when they later told Judge Josey-Herring that that group of plaintiffs would “be bound by the general causation outcome in the Murray cases.” 56

initial-phase discovery, notwithstanding counsel’s remarks at the outset of the

September 20, 2012, hearing. At the very least, the record precludes any conclusion

that the circumstances were the “plainest circumstances” that could permit an

inference of an implied agreement by the Brooks plaintiffs to be bound by the Murray

case management order and schedule. See Cannon v. Armstrong Containers Inc., 92

F.4th 688, 709 (7th Cir. 2024) (quoting Restatement (Second) of Judgments § 40

(1982) (“While a party may agree to refrain from exercising his right to a day in

court in return for being spared the burden of active litigation, no such agreement

should be inferred except upon the plainest circumstances.”)).

Based on all the foregoing, I am persuaded by appellants’ arguments (which

the majority opinion appears to have overlooked) that they did not explicitly agree

“to forgo general causation discovery of their own, much less to be bound by the

Murray plaintiffs’ case management schedule,” that they “‘were not bound to the

deadlines in the Murray [c]ases,’” and that they were “‘not bound to use the same

experts.’” 7 I would hold that the Superior Court should not have entered summary

7 These are the same arguments the Brooks plaintiffs made in July 2021, when they joined in a motion by other nonMurray plaintiffs to lift the stays of their cases. They reminded the court that there had been “[n]o case management conferences or scheduling orders entered in [their] cases” and “[n]o deadlines ha[d] been set at all,” and they asserted repeatedly that they had never “agreed to be limited to naming just those same general causation experts who were named on February 1, 2013 in the Murray [c]ases” and that “[a]t no time did any of the parties in the [n]on- [c]onsolidated [c]ases agree that they could not name additional or different or 57

judgment against the Brooks plaintiffs on the ground that they had no admissible

expert testimony without their having been afforded an opportunity to conduct their

own fact discovery and to designate their own experts.

II. The record does not support a determination that the Brooks plaintiffs impliedly agreed to be bound by the ultimate outcome in Murray. The Brooks plaintiffs agreed, and Judge Burgess’s Brooks case management

order provided, that “the court’s ruling in the Frye/Dyas hearing in the Murray Cases

will apply to this case.” 8 However, after the interlocutory appeal of Judge Weisberg’s

updated experts, conduct additional or different or updated discovery regarding scientific evidence, or rely upon additional or different or supplemental expert reports.” 8 Despite the clear import of this sentence (especially its lead, “The Brooks plaintiffs agreed . . .”), the majority opinion chides me for purportedly “look[ing] everywhere but to the . . . joint stipulations” in which the Brooks plaintiffs “committed to be bound by the outcome of the expert admissibility litigation in the Murray cases and by the case management orders leading up to it.” Ante at 40. But the problem with looking to those stipulations to resolve this case, as my colleagues do, is twofold: (i) the stipulations say nothing about the Brooks plaintiffs being bound by (or “joined with,” as Judge Burgess suggested at first) the Murray case management orders, and instead state expressly that the Brooks cases were to be stayed in their entirety; and (ii) each stipulation was that the Superior Court’s ruling “in the Frye/Dyas hearing” in the Murray cases would apply. The majority opinion is forced to undertake a lengthy explanation to get to the conclusion that, by signing the stipulations, the Brooks plaintiffs agreed to be subject to the case management schedule the court had imposed in Murray and to be bound by the conclusion of the Daubert/FRE 702 hearing. The language of the stipulations, and of the November 29, 2012, “Order Granting Stipulat[i]on and Proposed Case Management Order” reflecting the stipulations, simply does not support the majority’s atextual argument.

An additional problem with the majority’s reliance on the stipulations regarding the Frye/Dyas hearing is this: During the September 20 hearing, Mr. Dee 58

Frye/Dyas ruling, he issued a January 2015 order in DeRosa, another case filed after

the Murray and Brooks cases, staying the new case and directing that “the court’s

rulings on the admissibility of expert witness testimony on general causation in the

Murray Cases, following remand . . . will apply to this case, as it will apply to all

related cases pursuant to prior orders of this court” (italics added). That italicized

language in Judge Weisberg’s order plainly implied that the Superior Court’s

admissibility-of-expert-witness-testimony rulings in Murray, based on whatever

standard would apply upon remand from this court, would apply to the Brooks cases

as well. No objection to the order was lodged on behalf of the Brooks plaintiffs even

though they had earlier explicitly agreed only that the Superior Court’s “ruling in the

Frye/Dyas hearing in the Murray cases w[ould] apply” to their cases. Further, in

2017, when Judge Josey-Herring issued a number of sua sponte orders in then-

said, “I can tell [Mr. Morganroth that] if he survives Frye, then he’s going to get discovery of us on that other stuff that he says he needs now. . . . [I]f he were to survive Frye, then that general causation discovery he’s talking about would be available to him.” Judge Burgess gave a similar assurance, saying that “if you pass Frye, . . . you get much fuller discovery of the defendants” and that discovery on general causation would be “the next part of the process.” The majority does not explain why, despite the foregoing context for their stipulations to be bound by the ruling in the Frye/Dyas hearing, the Brooks plaintiffs “could not have reasonably thought,” ante at 43, that they were entitled to additional discovery, or why it was fair for the Brooks plaintiffs to have had judgment entered against them when they never had the opportunity to conduct the additional fact discovery that the defendants and the court had agreed would be available if (as occurred) the Murray plaintiffs “pass[ed] Frye.” 59

recently filed additional nonMurray, nonBrooks cases, she stated in those orders that

the trial court’s “ruling [under Daubert/Rule 702] on the admissibility of expert

witness testimony on general causation in the Murray Cases, will apply to this case,

as it will apply to all related cases pursuant to prior orders of this court” (italics

added). Again, no objection was made to that language on behalf of the Brooks

plaintiffs. In light of the foregoing, I agree with the opinion for the court that the

Brooks plaintiffs must be deemed to have impliedly agreed that they would be bound

by the rulings on admissibility of expert witness causation testimony in the Murray

cases (and not bound by just the rulings applying Frye/Dyas).

But what does it mean that the Brooks plaintiffs impliedly agreed to be bound

by the rulings in Murray about the admissibility of expert witness causation

testimony (i.e., agreed that “the court’s rulings on the admissibility of expert witness

testimony on general causation in the Murray Cases . . . will apply”)?

Interpretation of an agreement “begins with the language of the [agreement]

itself,” and we may look to the “context to determine what a reasonable person in

the shoes of the parties making the agreement would have thought its language

meant,” Jabbour v. Bassatne, 673 A.2d 201, 203 (D.C. 1996) (internal quotation

marks omitted)), presuming that the reasonable person “know[s] all the

circumstances before and contemporaneous with the making of the agreement,”

Patterson v. District of Columbia, 795 A.2d 681, 683 (D.C. 2002) (internal quotation 60

marks omitted). Here, the full circumstances of the Brooks plaintiffs’ implied

agreement that “the court’s rulings on the admissibility of expert witness testimony

on general causation in the Murray Cases . . . will apply” included knowledge that

Judge Burgess had stayed the Brooks cases in their entirety without joining them to

the Murray cases “for case management purposes” and without having them “go

along with” the schedule for the Murray cases. Therefore, notwithstanding what any

party might prefer the Brooks plaintiffs’ implied agreement to mean, a reasonable

person would not have thought that the Brooks plaintiffs agreed to be bound by

rulings in Murray that were not rulings on “admissibility of expert witness causation

testimony” under Daubert/Rule 702. 9

Prior to Judge Irving’s April 25, 2023, rulings in Murray on the admissibility

of the proffered expert causation testimony under Daubert/Rule 702, the judges who

9 It might be argued that the cellphone company defendants would never have agreed to such a limited meaning of the Brooks plaintiffs’ implied agreement that “the court’s rulings on the admissibility of expert witness testimony on general causation in the Murray Cases . . . will apply.” The answer to that argument is that the defendants were not counterparties to the Brooks plaintiffs’ implied agreement. See Appellants’ Reply Br. at 13 note 11 (“[T]he . . . language on which Defendants rely was . . . added by the court, not agreed by the parties.”); see also Restatement (Second) of Judgments, § 40 (Reporter’s Notes) (“Arrangements under which the resolution of issues in a pending action will be treated as determinative in parallel litigation may, however, be reached not only through bilateral agreement of the parties but also through agreement involving the court itself, often as a concomitant of a ruling by the court concerning consolidation or severance of cases or trial schedules.” (italics added)). 61

presided seriatim (Judges Weisberg, Josey-Herring and Irving) made a number of

rulings pertaining to the Murray plaintiffs’ experts that were not “rulings on the

admissibility of expert witness testimony on general causation,” but instead were

rulings that enforced the Murray case management order (an order to which the

Brooks plaintiffs were not subject, as discussed above). For example, in a March

2017 post-remand order, Judge Weisberg determined that the Murray plaintiffs were

not entitled to designate new experts, a ruling that he made based on the fact that,

under the Murray case management order, the Murray plaintiffs had been required,

by specified dates, to complete discovery and “to produce all of their experts on

general causation, with a report from each expert setting forth ‘a complete statement

of all opinions the witness will express on general causation and the basis and

reasons for them.’” In August 2018, Judge Josey-Herring struck portions of the

Murray plaintiffs’ experts’ supplemental reports (e.g., designated experts’ citations

to pre-2013 studies cited for the first time in the supplemental reports and references

to post-2013 science that was outside the scope of the experts’ original reports) on

the ground that the Murray case management order directed that the experts provide

a complete statement of their opinions in their original reports. And, in April 2021,

Judge Irving rejected the Murray plaintiffs’ request to add as an expert

Dr. Christopher Portier, who “would opine that ‘the human epidemiology evidence

on an association between cell phone use and the risk of glioma and acoustic 62

neuroma in adults is strong.’” In so ruling, Judge Irving echoed Judge Weisberg’s

reliance on the Murray case management order.

As for the April 25, 2023, order excluding all of the Murray plaintiffs’ expert

testimony, that was indeed a ruling that the testimony that the designated experts

were permitted to present, in accordance with the expert-report deadline established

by the Murray case management order, did not meet the Daubert/Rule 702 standard

for admissibility of expert testimony. In other words, the April 25, 2023, order did

consist of “rulings on the admissibility of expert witness testimony on general

causation in the Murray [c]ases,” such that it applied to the Brooks cases so as to

preclude the Brooks plaintiffs from presenting that same testimony. But, importantly,

the April 25, 2023, ruling was not a ruling that there can be no relevant and reliable,

and therefore admissible, testimony that cellphone radiation causes brain tumors. 10

10 That is, in determining that the testimony of the Murray plaintiffs’ experts was inadmissible, Judge Irving did not find that good science would not permit a conclusion that cellphone radiation can cause brain tumors. Rather, Judge Irving found that Dr. Kundi had failed to explain through specific studies and data why incidence data of glioma and acoustic neuromas have not increased over time, failed to provide sufficient facts and data to support his opinions, and relied upon studies that suffered from bias without explaining how he ruled out that bias. Judge Irving found that Dr. Belyaev failed to provide a causation opinion as to acoustic neuroma and glioma to a reasonable degree of scientific certainty and thus did not provide a causation opinion that “fits this case,” and also failed to reliably apply the IARC methodology in that he “did no analysis of bias, confounding, or chance, and did not perform a dose-response analysis of the epidemiological data.” Judge Irving found that Dr. Mosgoeller was “not able to say that exposure to cell phone radiation causes an increased risk of glioma or acoustic neuroma specifically” and did not reliably 63

Therefore, in my view, the Superior Court erred in ruling that the April 25, 2023,

exclusion of the Murray plaintiffs’ expert testimony meant that the Brooks plaintiffs

are “precluded from proffering other expert testimony in support of their claims.” 11

Thus, for example, in my view, the Brooks plaintiffs’ agreement that the

rulings on expert testimony admissibility in Murray would apply should not have

apply the weight-of-the-evidence methodology to his literature review. Judge Irving found that Dr. Liboff’s biological plausibility opinion was not “relevant to the general causation question” because he did not “offer an opinion on whether cell phones cause or promote glioma, acoustic neuroma, or any other type of tumor.” Judge Irving found that Dr. Panagopoulos did not explain “how his research and experiments on fruit flies can be directly extrapolated to humans and how the effects on the fruit flies tie to cancer generally or brain cancer, and specifically gliomas or acoustic neuromas in humans.” Finally, Judge Irving found that the opinions of “support witness” Dr. Plunkett, who “by herself, does not offer a general causation opinion that cell phone radiation causes glioma or acoustic neuroma,” were not relevant once the court had excluded the Murray plaintiffs’ other experts. 11 In granting summary judgment in favor of the cellphone company defendants, Judge Irving reasoned that the Brooks plaintiffs’ argument that they “are not bound by the substantive result in the Murray cases . . . ignore[s] the lack of any timely action seeking to lift the stay orders or unbind the[ir] cases in the face of significant and likely adverse developments in the Murray cases.” But it is not difficult to understand why counsel who would be busy with the appeal in the Murray cases would be satisfied with an ongoing stay in the Brooks cases that would relieve counsel of having to litigate on two fronts. As the Restatement (Second) of Judgments recognizes, an agreement to be bound “cannot properly be inferred simply from the fact that the party in question . . . acquiesced in a . . . schedule designed to accommodate other related litigation.” Restatement (Second) of Judgments, § 40 (Reporter’s Notes); see also id., comment a (explaining that the inference is improper because “the trial of an action may be postponed until after that in a related proceeding simply for convenience”). Any doubt about the scope of the Brooks plaintiffs’ agreement to be bound “should be resolved against imposing preclusion.” Id. 64

precluded the Brooks plaintiffs from presenting the expert testimony of Dr. Portier,

whose testimony was not deemed inadmissible under Daubert and FRE 702, but

instead was disallowed in the Murray cases because the Murray plaintiffs had not

timely designated Dr. Portier and timely submitted a summary of his opinion in

accordance with the schedule imposed under the Murray case management order. I

also see no reason why the Brooks plaintiffs should be precluded from designating

and presenting to a jury the same experts who were designated in Murray if those

experts were to submit, according to case management schedules to be established

in the Brooks cases, revised reports that the Superior Court determines satisfy the

Daubert/FRE 702 admissibility standard. That is, I agree with the Brooks plaintiffs’

argument that the fate of their cases was not tethered to the inadmissible, “heavily

stricken expert reports of the Murray plaintiffs’ experts based on a scheduling order

issued in 2013 in the Murray cases only.”

An additional observation: the opinion for the court refers to Judge Weisberg’s

explanation in his March 2017 post-remand order in Murray that “the original ‘case

management orders were driven by the reality that no American court had ever

accepted the theory that . . . radiation from cellphones could cause [the sorts of

adverse health effects the Murray plaintiffs alleged and that] it was unfair to force

[d]efendants to defend such complex and expensive litigation unless Plaintiffs could 65

present admissible expert testimony on general causation.’” Ante at 18-19. Judge

Weisberg’s remark is reminiscent of the litigation record in cases brought against

tobacco companies by plaintiffs who alleged injuries to their health from cigarette

smoking. See, e.g., In re Tobacco Litig., No. SX-20-MC-090, 2023 V.I. LEXIS 62,

at *16, 19 (V.I. Super. Dec. 29, 2023) (referring to allegations that “tobacco

companies won every suit between the 1950s and 1990s because tobacco plaintiffs

did not have tobacco companies’ internal documents showing their fraud and

conspiracy” and that “since the year 2000, plaintiffs won two thirds of the cases

because they obtained access to, and used, the tobacco documents.”); see also In re

Simon II Litig., 2002 U.S. Dist. LEXIS 25632, at *53 (E.D.N.Y. Oct. 22, 2002)

(stating that “internal documents from the defendants’ own scientists suggest[] that

they possessed significant proof of the causal relationship between smoking and

disease, contradicting their denials” and noting “[t]he incongruity between

defendants’ public statements and internal documents lasted from the 1950s into the

late 1990s”). Some of the tobacco plaintiffs claimed that the defendant cigarette

companies had suppressed research showing the injurious health effects of their

products, and, after years of litigation losses, some of the plaintiffs were eventually

able to prevail after obtaining internal tobacco company documents showing that the

companies were aware of and accepted the link between their products and smokers’

health problems. See, e.g., Greene v. Philip Morris USA Inc., 208 N.E.3d 676, 870 66

(Mass. 2023) (“For decades, the cigarette companies continued to publicly deny that

smoking caused cancer . . . , even as their internal documents showed otherwise.”).

The Brooks plaintiffs similarly allege that defendants have suppressed and

discouraged research concerning the effects of radiation on cellphone users and have

prevented funding to replicate studies that have shown adverse findings. That

allegation may or may not be true; I have no basis for knowing. The point I would

make, however, is that even if it is still the case that no American court has accepted

the theory that non-ionizing radiation from cellphones can cause the types of adverse

health effects that the Brooks plaintiffs allege, that is not a reason to bind the Brooks

plaintiffs to the outcome in Murray—a result reached without the plaintiffs having

had discovery of the defendants’ internal documents, and with the Brooks plaintiffs

having been precluded from relying on science deemed to be beyond the type of data

that the Murray experts relied on for their reports prepared in 2013, even though the

Brooks plaintiffs were not subject to the Murray expert-report-disclosure schedule.