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Judge Says Plaintiff Can’t Detect Presence of Wi-Fi

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A Santa Fe judge has ruled that a man who claims his neighbor’s phone and wireless services have caused him physical harm “cannot reliably detect the presence or absence” of the electromagnetic stimuli he maintains he is sensitive to.

District Judge Sarah Singleton in a recent order also took anti-Wi-Fi advocate Arthur Firstenberg to task for failing to comply with her orders to work with a court-appointed expert on protocols for testing his purported sensitivity to wireless signals, despite her “repeated admonitions.”

Firstenberg filed suit seeking monetary damages from his neighbor Raphaela Monribot and her landlord Robin Leith in January 2010. A victory for him could have a huge impact on the electronics business and everyday consumers of Wi-Fi devices.

But because Firstenberg won’t cooperate with the judge’s expert or the defendants on “blind testing” to determine whether he can tell or is affected when electronics are turned off or on, Singleton ruled that at trial he cannot submit as evidence any testing from his own experts that purports to show symptoms from his exposure to electromagnetic fields.

In the absence of any independent testing, Singleton also made findings that Firstenberg can’t reliably detect the presence of electromagnetic stimuli and “cannot discern or discriminate the effects of anxiety caused by a testing situation or the presence of electromagnetic stimulus.”

Attorneys for Monribot and Leith have argued that any symptoms Firstenberg may have are due to his fear of wireless signals or other health issues.

Singleton’s ruling doesn’t mean the end of Firstenberg’s case.

In other orders filed last week, she said Firstenberg can still try to prove damages for injuries or pain and suffering, and that it is still in dispute whether Monribot “knew with certainty her acts or failures to act” caused him harm.

Singleton also postponed the non-jury trial in the case, which had been scheduled to start next week.

Christopher Graeser, attorney for Monribot, said she has moved out of state, but he wouldn’t comment on whether Firstenberg’s continuing litigation prompted the move.

Graeser said Singleton still hasn’t ruled on what he called “the science” — whether Firstenberg can present experts who say that electromagnetic sensitivity is real and that Firstenberg has it.

“There’s also a further aspect that if it’s real and he suffers from it, whether it’s anything coming from her (Monribot’s former) house that’s causing harm,” Graeser said.

Graeser said the motion to postpone the trial “was kind of joint request” from both sides. Firstenberg’s attorney, Lindsay Lovejoy Jr., couldn’t be reached for comment.

In an eight-page order on the testing issue, Singleton wrote that Firstenberg has throughout the case asserted that “painful or objectionable symptoms” have been closely linked to Monribot’s property or electronic equipment and that he has often described “immediate” reactions.

She also detailed her appointment of an expert, Dr. Ned Siegel, a psychologist, to work out a testing protocol after the two sides couldn’t agree, and Firstenberg’s failure to cooperate, with his lawyer reiterating Firstenberg’s “objection to essentially any testing at all” that is jointly agreed on while intending to present the results of his own private testing at trial.

Singleton wrote that Firstenberg testified that complying with proposed testing protocols “would be inconvenient for him because ‘he has a life’ and because it would subject him to the same injuries he alleges he sustained on account of Defendant Monribot’s activities.”

Firstenberg “continues to maintain that he cannot be tested because of potential injury, despite willingly subjecting himself to the same exposure by moving back into his house” and by willingly subjecting himself to his own expert’s testing regimen, Singleton asserted.

She found that Firstenberg’s actions “have resulted in a de facto refusal to undergo properly requested and Court-ordered provocation testing.”

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