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Tuesday, March 16, 2010
Woman Can Still Use iPhone
By Jessica Dyer
Journal Staff Writer
A district court judge ruled Monday that a Santa Fe woman can continue to use her cell phone despite her next-door neighbor's claim that it is making him sick.
But 1st Judicial District Judge Sarah Singleton didn't dismiss the rest of Arthur Firstenberg's lawsuit alleging that Raphaela Monribot's use of various electronic devices is negatively impacting his health.
Firstenberg, an anti-WiFi advocate, filed suit against Monribot in January. He alleges that his house in a condo complex near St. Francis and Agua Fria has become uninhabitable because Monribot, whose home electrical system is fed from the same main cable, is using an iPhone, a computer with a wireless connection and dimmer light switches.
Singleton heard Firstenberg's motion for injunctive relief in the case as well as Monribot's motion for dismissal Monday.
Singleton ruled to dismiss the cell phone-related complaint on the basis that the safety of such devices is already regulated by the Federal Communications Commission and shouldn't be changed by individual states. The FCC, she said, had been asked to issue regulations based on individual hypersensitivity and refused to do so.
"According to submittals made in this case, somewhere between 3 percent and 15 percent of people report some sort of EMS (electromagnetic sensitivity) or whatever you want to call it. If you figure that those people are surrounded in their homes by other people on four sides of them, then potentially 12-45 percent of people could be sued for the way they used their cell phones," Singleton said. "And if you multiply that by 50 states imposing different standards on cell phone (radio frequency) emissions, pretty soon we won't have uniform technical regulations for cell phones anymore."
As for the injunction, Firstenberg attorney Lindsay Lovejoy said his client was seeking an order pending the resolution of the lawsuit that would require Monribot, among other things, to disconnect the WiFi element on her computer, to turn off the computer when not in use and to replace light dimmer switches.
After hearing those requests, which Monribot's attorney Christopher Graeser said were "scaled back," Singleton said they seemed like "relatively minor steps" that could be resolved without her. She deferred ruling on the motion for injunction and gave the parties one week to try to mediate an agreement "to try to ameliorate some of the effects that Mr. Firstenberg believes he has."
Both parties agreed to attempt mediation.
That decision came nearly four hours after Monday's hearing started.
Singleton had imposed time limits for each side, so only three witnesses testified. All three were for the plaintiff as the defense used its allotted time on cross-examination.
Firstenberg testified that he started noticing drastic health problems within days of Monribot moving in next door.
She moved into the house in October after living out of the country. Firstenberg said he knew Monribot previously because he'd hired her to be his personal cook at a rate of $500 per week for one daily meal. When she returned to Santa Fe, he helped her move into the place next door.
"I considered her a friend and want her next door to me," said Firstenberg, noting that Monribot was aware of his sensitivities and had previously expressed sympathy.
But within the next few days, he said he noticed problems.
"I started to experience low back pain the following morning (after helping her move) and cardiac symptoms, extreme discomfort in my chest, extreme weakness. I couldn't lift anything — a couple of books. I couldn't walk uphill. I had fluttering in my chest. I felt like I was going to die," he testified.
A former medical student, he said he used his stethoscope to listen to his own heart.
"Instead of what I used to hear which was lub-dub, lub-dub, I was hearing lub-lub-dub, lub-lub-dub and every three or four beats, I would hear a gurgling sound."
Monribot's attorneys argued that there is no proof that Monribot's devices are causing these particular ailments.
"The science isn't there, Your Honor," Graeser said. "We're not questioning Mr. Firstenberg's symptoms; we're not questioning the need for medical treatment. The issue is causation. Even Mr. Firstenberg is struggling with that. It's trial and error."
Under cross-examination, Firstenberg said he has previously expressed concern about other sources of electromagnetism affecting his health that turned out not to be troublesome, including the Rail Runner commuter train.
"That's part of this disease. You have to make certain assumptions. It's trial and error how to survive in this world with so many sources of EMS. Yes, I do make assumptions and they turn out to be correct or incorrect," he said.
Graeser said later that more proof was required for someone to alter another individual's life in the way that Firstenberg is trying to with Monribot, from whom he is also seeking $430,000 in damages.
"It's OK if you believe that's what is happening to you, but you don't sue your neighbor to control her lifestyle and to get half-a-million," he said. "You need the science."
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