After more than five years in litigation, the New Mexico Court of Appeals ruled recently in Firstenberg v. Monribot. Mr. Firstenberg sued Monribot, his neighbor, for being affected by her use of electronics including cell phones, WiFi, etc. within the confines of her own home. He claimed that he is sensitive to electromagnetic radiation through a disorder called electromagnetic sensitivity (EMS). After a long, winding road through the district court, the Court of Appeals affirmed the district court's ruling that Firstenberg's experts were not reliable, and that Monribot should therefore be granted summary judgment. The case was dismissed.
EMS has no experimentally proven basis and no recognized fundamental mechanism of operation. Radiation from wireless devices is low frequency and does not ionize/damage molecules in the body like x-rays might. At extremely intense exposure, such as in a microwave, molecules might be excited/heated. But such conditions did not exist in Firstenberg's home due to Monribot's use of electronics for many reasons, including distance between the new homes. Further, double-blind studies of EMS sufferers show no correlation between exposure and the onset of pain. There is general acceptance that the condition is likely psychological.
As a New York Times article explained, any "debate" on the scientific legitimacy of this claim would be even more lopsided than a "statistically representative climate change debate in which three critics of human-caused global warming were pitted against 97 scientists who considered the evidence overwhelming." (internal quotes omitted).
All claims must have their fair day in court. Yet, given what science already knew, why did it take two years for the district court to "rediscover" the same thing? After a "motion to dismiss" was denied in part on July 8, 2010, it took more than two years to finally decide the scientific merits of the case. Discovery requests, depositions, expert reports, and even court-appointed experts were involved in ferreting out the scientific questions.
Two years of litigation racked up mountains of legal costs. According to Monribot's cost bill, she spent $7,000 to depose two experts, and $67,000 on her own expert, Dr. Herman Staudenmayer, to rebut plaintiff's experts. All told, a recent New York Times article explained that Monribot spent $85,000 in fees and expert costs, and her lawyers had to write off roughly $200,000 in pro bono work for the case. Firstenberg's legal costs are unknown as his attorneys likely worked on a contingency basis. Further costs were incurred in the appointment of a neutral expert to assess Firstenberg's claims of pain caused by electromagnetic radiation. The neutral expert's task came to naught, however, since Firstenberg resisted evaluation for his condition, claiming that purposeful exposure would be akin to torture and might even kill him.
With so many resources wasted on litigation involving baseless science, one must wonder whether or not there is a way for courts to more effectively harmonize with the scientific community. In this case, adversarial bias perpetuated the case far longer than it should have gone - even though the legal system eventually got it right.
Litigators and judges alike could benefit from gathering the pulse of the scientific community before spending precious resources. Effective due diligence by plaintiff's attorney can prevent wasted money and resources for contingency cases. Before taking on a case with questionable science, peer review of the field could help to gather the pulse of the scienctific community. Sometimes, there are legitimate disputes between scientists. Other times, adversarial bias can skew scientific analysis to the illegitimate. Why fight a case with losing science?
Judges can, and should, use their authority to obtain the pulse of the scientific community on confusing technical matters. Neutral experts can be used, although in this case, the expert's scope did not actually provide what was needed by the court. An alternative strategy would be to have both sides' expert reports blindly peer reviewed. In doing so, a panel of neutral scientists could provide input about the validity of the methods and principles used to formulate the expert opinions, and provide a fast and cost effective method to ferret out scientific wheat from chaff. This "gatekeeping" function, after all, is what Daubert demands, and expects, of judges in adopted jurisdictions.