Now THIS Is An Unethical Lawsuit!

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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.

______________________

Facts: Overlawyered, New York Times

23 thoughts on “Now THIS Is An Unethical Lawsuit!

  1. “Society shouldn’t have an ethical obligation to burden the majority to eliminate or mitigate the effects of every citizen’s physical problems.”

    How is this really different from the Planet Fitness example?

  2. “Arthur has been drawing Social Security disability payments for a condition the medical profession has concluded doesn’t exist since 1992.”

    All of the technologies cited ( Wi-Fi, IPhones etc.) as a causal factor in his ailment did not exist in 1992. Therefore, it cannot be the proximate cause of the malady now.

    • There’s more to the ‘malady’ than that, these people believe that they can feel current from wires in walls, static in people around them, and power in batteries. I’m not a doctor, but I’ll bow to their experience, and it sounds like this is a genuine case where a psychiatrist might be more help than a medical doctor.

  3. Wait… do you mean
    ” has been drawing Social Security disability payments – for a condition the medical profession has concluded doesn’t exist – since 1992.”
    or do you mean
    ” has been drawing Social Security disability payments – for a condition the medical profession has concluded doesn’t exist since 1992.”
    Punctuation matters!

    Also, and less frivolously: please say more about why you say “loser pays” laws are undesirable; it’s an issue about which I’m actually educable.

    • I would guess because it might deter meritrocious lawsuits.

      I am in favor of limited loser pays in cases where the plaintiff and/or attorney committed fraud upon the court, or where the plaintiff would not be entitled to relief even assuming the factual allegations are true.

  4. From the “Guideline of the Austrian Medical Association for the diagnosis and treatment of EMF- related health problems and illnesses (EMF syndrome)”:

    “While a 2006 study by Regel et al. described no exposure effects, two provocation studies on exposure of “electrosensitive” individuals and control subjects to mobile phone base station signals (GSM, UMTS or both) found a significant decline in well- being after UMTS exposure in the individuals reporting sensitivity (Zwamborn et al. 2003, Eltiti et al. 2007). Analysis of the data available on exposure of people living near mobile phone base stations has yielded clear indications of adverse health effects (Santini et al. 2002, Navarro et al. 2003, Hutter et al. 2006, Abdel-Rassoul et al. 2007, Blettner et al. 2008).

    Based on the scientific literature on interactions of EMF with biological systems, several mechanisms of interaction are possible. A plausible mechanism at the intracellular and intercellular level, for instance, is interaction via the formation of free radicals or oxidative and nitrosative stress (Friedmann et al. 2007, Simkó 2007, Pall 2007, Bedard and Krause 2007, Pacher et al. 2007, Desai et al. 2009). It centres on the increased formation of peroxynitrite (ONOO-) from a reaction of nitrogen monoxide (NO) with superoxide (O2-). Due to its relatively long half-life, peroxynitrite damages a large number of essential metabolic processes and cell components.

    … In general, a wide variety of forms of EMF exposure (e.g. from cordless phones, wireless internet access, electrical installations and electrical devices in the building, mobile phone base stations, radio and TV transmitters, high-voltage lines or transformer stations) may be the root causes of health problems.”

      • From http://ec.europa.eu: “The Austrian Medical Chamber [Austrian Medical Association] is the statutory professional organization of all doctors practising in Austria. We represent approximately 37 000 doctors – working either in a self- employed, or in an employed capacity. On the one hand, the Austrian Medical Chamber represents their professional, social and economic interests, on the other it constitutes the competent national authority for Austrian doctors. The responsibilities of the Chamber comprise, besides others, the following areas: involvement in medical training, continuing medical education and professional development, quality assurance in continuing medical education and medical practice, the conclusion of contracts with social insurance institutions and of collective agreements, admission to and administration of the Medical Register, recognition of foreign medical diplomas, execution of disciplinary legislation and arbitration.”

        • Fella named Keith Roberts wrote a short story about the nasty effects of electricity back in 1965 called HIGH EIGHT. His story is as silly as this research.

          • Robert Heinlein wrote a pair of novellas called “Waldo and Magic, Inc.” back in, I believe, the 1950s. One of his premises was that broadcast radiation (I think microwaves beamed down from power satellites) was gradually degrading people’s neurological system. Heinlein could always write a plausible sounding story, even if the solution was, shall we say, a bit far fetched.

            • Magic, Inc. is one of my favorites. Waldo, not so much, but Waldo did hypothesize an allergic reaction to BROADCAST power. “Tin” foil was not presented as a preventive, but living in orbit, out of the field, was. There was also some sort of almost ‘magical’ fix for it, as I recall. However, none of this was ever found to have any factual basis.

  5. There are two observations that I wish to share that are relevant: the first is that “electromagnetic sensitivity” is not wholly bunk science (though the alleged doses in this case are insignificant); and two, how an actual minority group that is truly debilitated by common elements in modern life respond.

    In the first issue, targeted electromagnetic radiation have been shown to influence how the brain perceives the world. There are FDA approved medical devices that use such targeted electromagnetic fields to disrupt brain activity associated with anxiety and depression for instance. Exposure to untargeted fields at higher doses have been clinically shown to induce temporary feelings of paranoia. Thus the medical pathway for the alleged malady certainly exists, although it is nearly universally agreed that the doses from a neighbor’s home could not possibly have any meaningful effect.

    However, even if such small doses were medically relevant, the burden to avoid exposure falls upon those who are sensitive. This is how a community with a rare hypersensitivity to chemicals has responded. The condition called Multiple chemical sensitivity (http://discovermagazine.com/2013/nov/13-allergic-life; http://en.wikipedia.org/wiki/Multiple_chemical_sensitivity), usually develops after an acute exposure to a chemical, which subtly damages the nervous and immune systems. After recovery from the acute symptoms, minute exposures set off flu-like symptoms, and lasting damage can cause the disease to break down tolerance to additional, usually synthetic chemicals.

    True suffers often relocate to the desert and live in hypoallergenic trailers, away from as many synthetic toxicants as possible. They do not continue to live in neighborhoods and harass their neighbors with lawsuits, because their very presence in the community or courtroom would make them sick.

    While there was a lot initial skepticism about the disease, neural scans are showing adverse brain activity in response to the stimulus in some patients. The symptoms of electromagnetic exposure thus should not be dismissed entirely due to a lack of medical consensus, as new technology may reveal a connection in the future, as with chemical sensitivities. Sufferers, however, should take steps to avoid unduly burdening their neighbors, relocating if truly necessary. It is not ethical to tell you neighbor to stop turning on the lights!

  6. I don’t follow the analysis: the plaintiff’s lawyer behaved unethically in pursuing a non-frivolous case, and the judge was a “villain” for not dismissing it out of hand? When is a lawyer ethically required not to pursue a non-frivolous case? As you acknowledge, the number of would-be experts who support the EMS theory is not zero, and it’s not immediately obvious that none of them is an actual expert. Assuming that the state equivalent of Rule 11 wouldn’t have required the attorney to conduct such a thorough investigation of the scientific background that she could rule out the practical possibility of EMS-plus-causation (and we can make that assumption because you’ve said the suit wasn’t frivolous), why couldn’t the attorney proceed to let the judge determine whether any of those “experts” would qualify? And why is the judge a villain for having accepted that invitation? In her opinion precluding plaintiff’s proffered expert testimony, the judge seems to do a pretty thorough job of debunking the proponents of EMS. But by what standard should the court have done that on a motion to dismiss, i.e., on the face of the complaint?

    • I didn’t say the lawyer was unethical. I said it was an unethical case. Lawyers have an ethical obligation not to pursue frivolous cases, but no such obligation not to handle unethical cases, like this one. It’s unethical, in case I was too subtle for you, because its theory was unethical, and if accepted would overburden society.

      The standard that there was no reason to believe that the suit has a smidgeon of a chance of prevailing, to answer your last question.

      I also didn’t say there was a villain. Nuance does not seem to be your long suit. I said that if there was an ethics villain, it was the judge, because it wasn’t the lawyer or the plaintiff. Victimizing an innocent woman and subjecting her to a 5 year legal assault when there is virtually no theory whereby she would lose is a waste of resources, cruel, unfair, and wrong. A prudent judge would have shut down the case.

      • Thanks for the response, but I’m still not following your argument. A “prudent judge” has a complaint pleading a claim based on what purports to be a scientific theory. That judge is supposed to “shut down the case” by dismissing the complaint because there’s “no reason to believe that the suit has a smidgeon of a chance of prevailing”? How is the judge supposed to arrive at that conclusion? Is the idea that everyone just knows that EMS is a crock, that the judge is supposed to accept the defendant’s factual representations — or that the judge is expected to figure that out by doing a little extracurricular online research? Are we talking judicial notice? Seriously: a judge faces a difficult challenge when handling a well-pleaded complaint that depends on apparently — but not quite incontestably — unreliable “science”. I understand the frustration that the rules of civil procedure typically require such a case to go forward until it can be knocked out via summary judgment. I take the point that, based on what’s been reported, five years seems too long to get to that stage. But I’m completely baffled by your notion that the trial judge could defensibly have granted a motion to dismiss.

        • A judge wouldn’t have to decide whether the illness was real. She could decide that there was no wrongdoing or tortious conduct shown or alleged and that under current law, a woman’s daily legal activities in her own home could not be curtailed, stopped or be the basis for damages. The judge was in a position to declare the whole theory of the lawsuit as against public policy.

          Let’s say my neighbor sues me, alleging that I am using my psi abilities to cause him headaches. Should the judge say, “OK, let’s see what you’ve got?”

          • I don’t know of a case in which a court has done what you say the judge here should have: dismissed a lawsuit properly alleging injury and causation on the public policy ground that relief would interfere with the defendant’s otherwise legal activities (unless those activities are insulated from judicial interference under, say, the First Amendment). If you can cite a decision to that effect, I’d be very interested in looking at it. A complaint involving a psi-based claim would be dismissed on its face as patently frivolous.

            • If there is no tort, there is no tort. What recognized tort was being alleged here? No such case has ever prevailed. There was no precedent. I doubt that the remedy being sought would have even been constitutional. The psi suit is no different.

        • Could a judge dismiss the case? Yes. That’s why they are called “judges.” A judge has the discretion to say, there is no way you can make this case to my satisfaction, and its a waste of time and resources and an unfair burden on the defendant to let you do so. And judges don’t do this enough.

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