This post examines an opinion the New Mexico Court ofAppeals recently issued in a civil suit:
Firstenberg v. Monribot, 2015
WL 993820 (2015). The court begins its opinion by explaining how and why the
suit arose:
Arthur Firstenberg sued his neighbor,
Raphaela Monribot, and Robin Leith, the owner-lessor of Monribot's
residence, for injunctive relief and monetary damages under the theories
of nuisance and prima facie tort. In his complaint, Firstenberg alleged that
because he suffers from a condition called electromagnetic sensitivity (EMS)
that renders him acutely sensitive to electromagnetic radiation, his health
was adversely affected by Monribot's use, within her own residence, of various
electronic devices that generate electromagnetic radiation, including a cell
phone, a Wi–Fi modem, dimmer switches, and a microcell.
Firstenberg v.
Monribot, supra. In a footnote, the
Court of Appeals noted that the
parties, the witnesses, and the district
court variously refer to Firstenberg's condition as electromagnetic hypersensitivity,
electromagnetic sensitivity, and idiopathic environmental intolerance
attributed to electromagnetic fields. For ease of reference, we use the acronym
EMS throughout this Opinion in reference to Firstenberg's condition.
Firstenberg v. Monribot,
supra.
In the Complaint Firstenberg filed to initiate the suit, he
alleged that because he
suffers from a condition called electromagnetic sensitivity
(EMS) that renders him acutely sensitive to electromagnetic radiation, his
health was adversely affected by Monribot's use, within her own residence, of
various electronic devices that generate electromagnetic radiation, including a
cell phone, a Wi–Fi modem, dimmer switches, and a microcell. After nearly three
years of litigation, having held an evidentiary hearing regarding the
admissibility of expert scientific testimony, the district court determined
that Firstenberg lacked admissible evidence of general causation and,
therefore, granted summary judgment in favor of Monribot and Leith (Defendants).
Firstenberg appeals from the court's summary judgment order.
Firstenberg v.
Monribot, supra. The opinion says
Monribot lived in the house next to Firstenberg’s until she “went to Europe for
four months.” Firstenberg v. Monribot, supra. When she came back, she sold the house to
Firstenberg and moved into a house Leith owned that was “next door to”
Firstenberg’s house. Firstenberg v.
Monribot, supra. The opinion says
that the “after Monribot moved in next door to him, Firstenberg became so ill he
thought he `could die[,]’ and his symptoms recurred every time he returned to
his house.” Firstenberg v. Monribot, supra.
Monribot refused Firstenberg's requests
to replace her dimmer switches with regular switches, use a land-line instead
of a cell phone, to turn off her Wi–Fi, and to unplug her computer at night;
she later refused [his] offer of $10,000 to comply with his requests.
Firstenberg stated that because Monribot would not comply with these requests,
he was unable to use his house for more than a few minutes at a time without
suffering EMS symptoms that were caused by radiation from Monribot's electronic
devices `entering’ and `leak[ing]’ into his house.
Firstenberg v. Monribot, supra. The court then explains the basis of
Firstenberg’s claims against the defendants:
His complaint for prima facie tort was
founded on allegations that . . . Monribot, who knew of Firstenberg's EMS,
`bombard[ed Firstenberg's] residence with electromagnetic radiation, which she
knew would injure [him]’; that she did so intentionally, with the certainty
that injury would necessarily result to Firstenberg; that her use of electronic
devices `rendered [his] home extremely difficult to inhabit and have caused him
years of inconvenience and acute and chronic pain and suffering’; and that
Monribot's conduct `had no valid purpose and was unjustifiable” because she
could use a land-line, cable instead of Wi–Fi, and engage in “other simple
practices that would not cause her undue expense or inconvenience.’
Firstenberg's claim of nuisance was
based . . . on his allegations that Monribot's use of electronic devices
interfered with his normal residential activities and his private use and
enjoyment of his home and his land; Monribot's actions were intentional and
unreasonable; she knew or should have known that `bombarding [his] home with
electromagnetic radiation interfered with [his] use and enjoyment of his land’;
and that her actions caused Firstenberg `years of inconvenience and acute and
chronic pain and suffering.’ Firstenberg's complaint sought damages totaling
1.43 million dollars and injunctive relief prohibiting Monribot from operating
equipment that emits electromagnetic radiation.
Firstenberg v.
Monribot, supra.
As Wikipedia notes, in a tort case, causation is an
essential element of the plaintiff’s claim:
Proximate cause means that you must be
able to show that the harm was caused by the tort you are suing for. .
. . A common situation where a prior cause becomes an issue is the personal
injury car accident, where the person re-injures an old injury. For example
someone who has a bad back is injured in the back in a car accident. Years
later he is still in pain. He must prove the pain is caused by the car
accident, and not the natural progression of the previous problem with the
back.
Leith and Monribot responded to Firstenberg’s suit by filing
a motion for summary judgment in their favor. Firstenberg v. Monribot, supra.
As Wikipedia explains, in
American legal practice summary judgment can be awarded by the court before trial, effectively holding that no trial will be necessary. Issuance of summary judgment can be based only upon the court's finding that: there are no disputes of `material’ fact requiring a trial to resolve, and in applying the law to the undisputed facts, one party is clearly entitled to judgment
That brings us back to the summary judgment entered in this case:
Owing to the nature of Firstenberg's
claims in this case, both Defendants and Firstenberg obtained experts on the
issue of the cause of [his] symptoms. Firstenberg sought to prove that his EMS
symptoms were caused by Monribot's use of electronic devices by relying on the
expert testimony of Dr. Erica Elliott, M.D., Firstenberg's treating physician,
and Dr. Raymond Singer, Ph.D, a neurotoxicologist. Defendants sought to prove,
through the testimony of psychologist, Dr. Herman Staudenmayer, Ph.D, that Mr.
Firstenberg's EMS symptoms were psychological, caused by
an undifferentiated somatoform disorder.
Each party filed motions seeking to
exclude the other's expert on the ground that the proffered expert testimony
was inadmissible pursuant to the standards by which the admissibility of scientific
expert testimony is measured. Defendants filed an amended version of their
motion to exclude the testimony of Drs. Elliott and Singer, and relying on
their memorandum in support thereof, [they] simultaneously filed a motion for
summary judgment on the ground that, because Firstenberg's proffered experts as
to causation were not qualified to provide expert scientific testimony,
Firstenberg could not prove causation.
Firstenberg v.
Monribot, supra.
As noted above, the County District Court Judge who had the
case granted summary judgment for Monribot and Leith based on
Firstenberg's failure to demonstrate
that admissible scientific evidence supported his theory of general causation,
that is, that exposure to electromagnetic fields causes, or is capable of
causing, the injuries that Firstenberg complains of, namely, adverse health
affects from EMS.
Firstenberg v.
Monribot, supra. The issue on appeal
was whether the District Court Judge erred in granting summary judgment, i.e.,
whether she improperly found that Firstenberg could not prove causation. Firstenberg
v. Monribot, supra.
The Court of Appeals noted that the District Court judge held
an
evidentiary hearing on the issues
raised in Firstenberg's and Defendants' respective motions to exclude expert
witnesses and on Defendants' amended motion for summary judgment. All three
proposed experts, Drs. Staudenmayer, Elliott, and Singer, testified at the
evidentiary hearing. Following the hearing, the parties filed written
arguments.
Firstenberg v.
Monribot, supra. After the hearing,
[h]aving
heard the testimony and considered the parties' written arguments, the district
court concluded that the testimony of Drs. Elliott and Singer on the issue of
general causation was inadmissible under the standard set forth in State
v. Alberico, 116 N.M. 156, 861 P.2d 192 (New Mexico Supreme Court
1993), for evaluating the admissibility of scientific expert testimony. See State
v. Alberico, supra (relying on Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993), to enumerate some of the factors that courts should consider
in assessing the admissibility of expert scientific testimony under [New Mexico Rule of Evidence 11–702).
Firstenberg's failure to demonstrate
that admissible scientific evidence supported his theory of general causation
led the court to grant summary judgment in Defendants' favor on the ground
that, in the absence of admissible evidence of general causation, Firstenberg
could not prevail in his claims of nuisance and prima facie tort. . . .
Firstenberg v.
Monribot, supra.
In his appeal, Firstenberg argued that the District Court
Judge erred in granting summary judgment for the defendants. Firstenberg
v. Monribot, supra. The Court of
Appeals began its analysis of his argument by noting that it reviews a court’s
decision to admit or exclude scientific
expert testimony under Rule 11–702 for an abuse of discretion. See State v. Alberico, supra. The abuse
of discretion standard allows the reviewing court to reverse a district court's
discretionary decision when the decision was `obviously erroneous, arbitrary,
or unwarranted’ or where it was clearly against the logic and effect of the
facts and circumstances before the court. See
State v. Alberico, supra. The party
seeking to admit expert testimony bears the burden of showing that the expert
is qualified, that the expert's testimony will assist the trier of fact, and
that the expert will `testify only as to scientific, technical[,] or other
specialized knowledge with a reliable basis.’ Rule 11–702; State v.
Anderson, 118 N.M. 284, 881 P.2d 29 (New Mexico Supreme Court 1994); Parkhill
v. Alderman–Cave Milling & Grain Co. of N.M., 149 N.M. 140, 245 P.3d
585 (New Mexico Supreme Court).
Firstenberg v.
Monribot, supra.
The Court of Appeals went on to explain that a District
Court Judge should consider these factors in deciding “whether scientific
evidence has a reliable basis”:
(1) whether a theory or technique can
be (and has been) tested; (2) whether the theory or technique has been
subjected to peer review and publication; (3) the known potential rate of error
in using a particular scientific technique and the existence and maintenance of
standards controlling the technique's operation; . . . (4) whether the theory
or technique has been generally accepted in the particular scientific field[;]
. . . [ (5) ] whether the scientific technique is based upon well-recognized scientific
principle[;] and [ (6) ] whether it is capable of supporting opinions based
upon reasonable probability rather than conjecture.
State v. Anderson,
supra.
The court then applied these standards to this case, noting
that it was Firstenberg’s
burden in the district court, to show
that his experts, including his treating physician, Dr. Elliott, were qualified
to present scientific expert testimony as to the cause of his EMS
symptoms. See Parkhill v. Alderman–Cave Milling & Grain Co. of
N.M., supra (a treating physician must be qualified pursuant to the [above] factors in order to present
scientific expert testimony as to the external causation of the patient's
symptoms. . . .
The district court, having reviewed the
parties' briefs, authorities, exhibits, reports, expert affidavits, and
testimony, concluded that Firstenberg did not meet that burden. Having reviewed
the testimony of Drs. Elliott and Singer, we conclude that the record fully
supports the district court's conclusion that they were not qualified to
present expert scientific testimony on the issue of general causation. Firstenberg's
vague and generalized arguments to the contrary provide no basis for
reversal. . . .
State v. Anderson,
supra.
The Court of Appeals also explained that Firstenberg’s
repeated references to the ninety-three
studies upon which his experts relied in forming their conclusions and his
argument that the district court erred by failing to familiarize itself with
those studies demonstrate a misunderstanding of the law. The studies and
articles, standing alone, do not constitute admissible evidence; rather, they
constitute inadmissible hearsay. See [New Mexico Rule of Evidence 801(A), (C)(2); [New Mexico Rule of Evidence] 802 (providing that
a written statement that is offered in evidence to prove the truth of the
matter asserted in the statement constitutes inadmissible hearsay). Therefore,
the district court was under no obligation to independently evaluate the
articles and studies upon which Mr. Firstenberg's experts relied in reaching
their conclusions. . . .
State v. Anderson,
supra.
Finally, the Court of Appeals explained that “to the extent”
Firstenberg
wished to rely upon the contents of the
articles and studies to demonstrate general causation, it was incumbent upon
him to establish, via his experts, that the articles constituted reliable
scientific authority. See Baerwald v. Flores, 122 N.M. 679, 930 P.2d
816 (New Mexico Supreme Court 1997) (recognizing that an `expert may rely
on an article because it is the expert who determines, based on study and
experience, whether the article is reliable’). . . .
Had Firstenberg established that his
experts relied on the articles and studies in forming their opinions and that
these items were reliable scientific authority, the content of the articles and
studies may have been admissible pursuant to a hearsay exception. See New Mexico Rule of Evidence 11-803(18)(b)
(governing the hearsay exception related to statements in learned treatises,
periodicals, or pamphlets).
Having failed to demonstrate through
his experts that the studies and articles upon which they relied were
admissible as reliable scientific authority showing causation, Firstenberg cannot argue that the district
court erred by failing to consider them.
State v. Anderson,
supra.
The Court of Appeals therefore held that, “[h]aving
concluded that Firstenberg's arguments regarding the court's expert witness
rulings provide no basis for reversal, we further conclude that the court
properly granted summary judgment in favor of Defendants as to Firstenberg's
nuisance and prima facie tort claims.” State
v. Anderson, supra. For these and
other reasons, it “affirm[ed] the district court's summary judgment in favor of
Defendants as to Mr. Firstenberg's claims of prima facie tort and nuisance.” State
v. Anderson, supra.
If you are interested in reading more about this opinion,
and this case, check out the news storied you can find here, here and here.
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