350 P.3d 1205
N.M. Ct. App.2015Background
- Firstenberg sues Monribot and Leith for nuisance and prima facie tort over EMS alleged from nearby devices; district court granted summary judgment for defendants on general causation; Monribot’s counterclaims for declaratory judgment, injunctive relief, and trespass; Firstenberg later obtained a partial summary judgment on an implied easement by necessity for access to an electric meter; court held evidentiary issues nullified Firstenberg's general causation; appeal and cross-appeal followed; court affirmed in part and moot in part; issues included preemption and ADA-related challenges; final affirmance of nuisance/prima facie tort judgments and denial of costs; EMS causation standard involved Alberico/Daubert framework.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether summary judgment on general causation was proper | Firstenberg argues admissible expert evidence supports EMS causation | Defendants contend EMS lack of admissible general causation evidence bars relief | Yes; summary judgment affirmed on general causation grounds |
| Whether Drs. Elliott and Singer were admissible experts on general causation | Firstenberg contends Alberico standard satisfied | Defendants argue experts not qualified under Alberico/Rule 11-702 | Yes; court affirmed exclusion of improper expert testimony and upheld summary judgment |
| Whether there was an implied easement by necessity for Firstenberg to access the meter | Firstenberg showed integration of properties and necessity to access utilities | Monribot argued no implied easement due to alternative access | Yes; Firstenberg has an implied easement by necessity for access to the meter |
| Whether federal preemption bars the EMS-related claims | Firstenberg argues state tort claims not preempted | Defendants rely on Murray v. Motorola to show preemption | Yes; cell-phone related claims preempted; preemption upheld |
| Whether the district court properly exercised costs disposition | Firstenberg argues costs should be awarded to defendants | Defendants request costs; court exercised discretion to deny | Yes; district court did not abuse discretion in denying costs |
Key Cases Cited
- Alberico, 116 N.M. 156 (1993-NMSC-047) (Daubert/ Alberico factors for admissibility of expert testimony)
- Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (U.S. Supreme Court 1993) (establishing methodology for admissibility of scientific evidence)
- Parkhill v. Alderman-Cave Milling & Grain Co. of N.M., 149 P.3d 585 (2010-NMCA-110) (applying Alberico/Rule 11-702 framework in NM)
- Anderson, 881 P.2d 29 (1994-NMSC-089) (Daubert-Alberico factors guide admissibility of expert testimony)
- Murray v. Motorola, Inc., 982 A.2d 764 (D.C. Cir. 2009) (conflict preemption; FCC environmental RF rules preempt state torts)
- Pinney v. Nokia, Inc., 402 F.3d 430 (4th Cir. 2005) (preemption not warranted where FCC regulation is at issue)
- Wilde v. Westland Dev. Co., 148 N.M. 627 (2010-NMCA-085) (appellate review of summary judgment and evidentiary rulings)
- Amethyst Land Co. v. Terhune, 326 P.3d 12 (2014-NMSC-015) (parol evidence limitations; context of written instruments)
- Farris v. Intel Corp., 493 F. Supp. 2d 1174 (D.N.M. 2007) (illustrates general/specific causation framework in toxic torts)