Wednesday, March 25, 2015

When Science Is Lost in a Legal Maze

In a saner world, where science and the law meshed more precisely, a case like Firstenberg v. Monribot would have been dead on arrival in court. But that is not what happened.

Earlier this month, five years after the lawsuit was filed, the New Mexico Court of Appeals upheld a lower court’s ruling that Arthur Firstenberg, an outspoken opponent of wireless technology, could not seek $1.43 million in damages from his neighbor, Raphaela Monribot, for damaging his health by using her iPhone and a Wi-Fi connection.

It was there, Mr. Firstenberg would claim, that she became the cause of his suffering. Dizziness, nausea, amnesia, insomnia, tremors, heart arrhythmia, acute and chronic pain — all because she insisted on using her cellphone, computers and other ordinary electronic equipment.Mr. Firstenberg and Ms. Monribot, the record shows, were once on good terms. He had hired her in 2008 to cook for him, and after she left for Europe, he rented and then purchased her small house in a densely populated old neighborhood in Santa Fe, N.M. When she returned to town, she moved into a house adjacent to the one he owned.

Her dimmer switches and compact fluorescent bulbs emitted their own painful rays. The fact that the two houses shared the same electric utility connection, Mr. Firstenberg argued, intensified the effect.

A self-described sufferer of a medically unrecognized condition called electromagnetic hypersensitivity, he was already known in Santa Fe for his unsuccessful effort to block the installation of Wi-Fi in the city library and other public places.

When I heard that Mr. Firstenberg, who lives a couple of miles from me, was filing a tort claim seeking damages for what amounted to electromagnetic trespassing, I assumed the case would be quickly dismissed. Instead, in 2010, it entered the maze of hamster tubes that make up the judicial system.

In an exchange of emails, he declined to be interviewed about the case, saying that reporters should focus instead on what he believes are grave dangers posed by electromagnetic radiation. But except for a few obscure experts who quote one another’s discredited research, the consensus of science is that the health risks are most likely nonexistent.

Unlike X-rays and gamma rays, the radiation emitted and received by wireless devices is far too low in frequency to shake apart the molecules in living cells. Only at extremely intense exposures, like those inside a microwave oven, can the waves cause harm by generating heat.

It is not impossible that low, “subthermal” levels of the waves might disturb cellular chemistry in less obvious ways, but the evidence isn’t there. Double-blind studies of people who consider themselves electrosensitive have found no relationship between the onset of their symptoms and the presence of electromagnetic fields.
Showing skepticism from the start, District Judge Sarah Singleton denied Mr. Firstenberg’s request for a preliminary injunction, ruling that he was “unlikely to prevail on the issue of causation.” If only the locomotive had stopped there.

The judge also denied Ms. Monribot’s motion to dismiss the case entirely, calling instead for an evidentiary hearing to consider “in depth proof and argument on the validity of both sides’ experts.”

The result, in retrospect, was like the comedian John Oliver’s “statistically representative climate change debate” in which three critics of human-caused global warming were pitted against 97 scientists who considered the evidence overwhelming. Any debate over the scientific legitimacy of electrosensitivity would be even more lopsided.

In 2012, after two more years of claims and counterclaims, depositions and cross-examinations, days of hearings and pages of affidavits, the court was persuaded in its circuitous way of what science already knew: Mr. Firstenberg had no case. His expert witnesses, consisting of a holistic doctor and a consulting psychologist on neurotoxicity, were ruled unqualified and his evidence scientifically unreliable. And so came a summary judgment against him.

About a week ago, after the Court of Appeals upheld the decision, I stopped by the office of Ms. Monribot’s lawyer, Christopher Graeser, with a tape measure. The files for the case sat in boxes on a table. Piled together, the pages would reach more than six feet high.

Court costs, not counting lawyers’ fees, had come to almost $85,000, or more than $1,000 an inch. Because of what the court described as Mr. Firstenberg’s “inability to pay,” the bill went instead to Ms. Monribot’s landlord’s insurance company — as if someone had slipped on an icy sidewalk, or pretended to.

Mr. Graeser and another lawyer, Joseph Romero, represented her pro bono, writing off an estimated $200,000 in legal fees. Lindsay Lovejoy, the lawyer for Mr. Firstenberg, said he wasn’t free to discuss their arrangement.

Mr. Firstenberg represented himself for the appeal. The next stop may be the New Mexico Supreme Court. After all, Mr. Graeser said, the plaintiff had “suffered no real disincentive to doing it again.”

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