A New Mexico appeals court has refused to overturn the summary judgment dismissal of Arthur Firstenburg’s five-year-old lawsuit against his neighbor Raphaela Monribot, whom he had accused of causing him excruciating pain and discomfort by using her iPhone, a Wi-Fi connection, dimmer switches, and other electronic devices in her own home. Firstenburg says that he suffers from electromagnetic sensitivity, or EMS, an acute sensitivity to electronic radiation that doctors and and scientists almost unanimously (but not quite) believe doesn’t exist.
Because Monribot had the misfortune to live next door to this guy, she had to defend against a $1.43 million lawsuit that has racked up court costs of over $85,000, and heaven knows what in legal fees. Firstenburg is not paying for any of it because he is broke; his lawyer, Lindsay Lovejoy, had taken the case on a contingent fee basis. She decided the appeal was a lost cause: the plaintiff handled it himself.
This case will, I assume, become the new poster child for those favoring a “loser pays” system, a bad idea that would be godsend in abuses of the system like this one.
The case is unethical but not frivolous, which would mean that Lovejoy was in breach of ethical norms to take it. Electromagnetic sensitivity may be imaginary (Saul’s brother Chuck, above, in “Better Call Saul” has it), but if a plaintiff can present convincing evidence that he really is being harmed by his neighbor’s conduct, a court could decide to provide relief. Firstenburg couldn’t, though; his expert witnesses, a holistic doctor and a consulting psychologist on neurotoxicity, were ruled unqualified and his evidence scientifically unreliable. The lawyer didn’t know what she would find, however, when she first took Firtsenburg as a client. Maybe this would be the breakthrough case that establishes that eccentric and rare victims of disputed maladies can shut down technology in the communities where they live!
That’s not a frivolous lawsuit objective, but it is an unethical one, even if Monribot’s living her life in a normal and modern fashion really was making Firtsenburg sick. Such a result would be the absurd and societally destructive dead end of the slippery slope many critics detected with the Carter administration’s efforts on behalf of the handicapped. Whole fleets of buses had to be retrofitted with hydraulic wheelchair lifts to accommodate the rare wheelchair-using commuter at taxpayer expense. “Reasonable measures” mandated to accommodate employees with health and medical problems disrupted offices and prevented thousands of well-earned dismissals. Society shouldn’t have an ethical obligation to burden the majority to eliminate or mitigate the effects of every citizen’s physical problems. This is the entitlement mentality, however, and culturally, the battle against government-mandated extreme and expensive compassion was lost long ago.
Firtsenburg grew up in a post-Carter culture. I can’t blame him for believing he should be able to make his neighbor move or live like it is, well, 1976. His lawsuit is sincere, even if he may be deluded.
If there is a villain here, ethically, it is the trial judge who didn’t dismiss the case at the very beginning. District Judge Sarah Singleton denied Firstenberg’s request for a preliminary injunction, ruling that he was “unlikely to prevail on the issue of causation.” But she also denied Ms. Monribot’s motion to dismiss the case, sending her and the civil justice system into wasteful litigation that the judge thought would be futile and pointless.
A depressing footnote:Arthur has been drawing Social Security disability payments for a condition the medical profession has concluded doesn’t exist since 1992.