G v. Fay Sch., Inc.
282 F. Supp. 3d 381
D.D.C.2017Background
- Plaintiff G (a student) and his parents allege G suffers from Electromagnetic Hypersensitivity (EHS) triggered by Wi‑Fi at the Fay School and seek ADA accommodations and related relief.
- Plaintiffs disclosed five experts (Drs. Carpenter, Hubbuch, Herbert, Maret, and electrician Bowdoin); defendants moved to exclude some under Fed. R. Evid. 702.
- Court held Daubert hearing and excluded Dr. Hubbuch (specific causation/differential diagnosis unreliable), Dr. Maret (testimony not helpful on dosimeter use), and Mr. Bowdoin (opinion beyond reliable scope); admitted Drs. Carpenter and Herbert.
- Defendants moved for summary judgment on Counts I–V. Court provisionally accepted Dr. Carpenter’s general‑causation opinion that EHS can exist but found record insufficient to prove specific causation linking Fay’s Wi‑Fi to G.
- Court granted summary judgment for defendants on Count I (failure to accommodate under ADA), Count III (breach of contract), Count IV (misrepresentation as to School and Gustavson), and Count V (negligence); denied summary judgment as to Count II (ADA retaliation) for specified adverse acts.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of general‑causation experts (Dr. Carpenter) | Carpenter: EMF can cause EHS; literature supports biological plausibility. | Defendants: methodology unreliable; cherry‑picking; outside scientific consensus. | Admitted — court found methods sufficiently reliable and within range of expert dispute. |
| Admissibility of specific‑causation experts (Dr. Hubbuch; Dr. Herbert) | Hubbuch/Herbert: differential diagnosis shows G has EHS and Wi‑Fi caused it. | Defendants: differential diagnosis not reliably applied; failed to rule out other causes; insufficient data. | Hubbuch excluded for unreliable application and insufficient data; Herbert admitted (careful, cautious analysis). |
| Expert testimony on dosimeter/wiring (Maret; Bowdoin) | Maret/Bowdoin: technical opinions on dosimeter use and classroom rewiring/accommodation feasibility. | Defendants: opinions not helpful, lack factual basis, beyond expertise. | Both excluded: Maret (not helpful on facts here); Bowdoin (beyond reliable scope re: classroom impact). |
| Jurisdiction / FCC preemption / primary jurisdiction | Plaintiffs: ADA claim is about accommodations for an individual disability, not an attack on FCC standards. | Defendants: claims preempted/collateral attack on FCC or require deference under primary jurisdiction. | Not preempted; primary jurisdiction not compelled — Court may decide accommodation claim despite FCC regulatory role. |
| ADA reasonable accommodation (Count I) — specific causation requirement | Plaintiffs: general causation + experts link Wi‑Fi to G; school must accommodate. | Defendants: plaintiffs lack proof Wi‑Fi caused G’s symptoms; no disability established. | Summary judgment for defendants on Count I: genuine dispute on general causation exists, but insufficient evidence of specific causation. |
| ADA retaliation (Count II) | Plaintiffs: school acted adversarially/hostilely and took adverse acts after protected conduct. | Defendants: actions non‑retaliatory, legitimate reasons (attendance policy, no medical proof, handbook rules). | Summary judgment denied as to two alleged retaliatory acts (ban from athletics and omission of brother from program) — those survive as prima facie. |
| Contract / Misrepresentation / Negligence (Counts III–V) | Plaintiffs: Handbook promises and school conduct breached contracts/misrepresented standards and were negligent. | Defendants: Handbook statements are aspirational; no evidence of knowingly false statements; Wi‑Fi complied with FCC limits. | Counts III, IV (against School and Gustavson individually), and V dismissed — handbook promises too vague to be contractual; no evidence of knowing misrepresentation; negligence fails absent causation and FCC‑compliant operation. |
Key Cases Cited
- Daubert v. Merrell Dow Pharm., 509 U.S. 579 (expert testimony must be reliable and relevant)
- Ruiz‑Troche v. Pepsi Cola of Puerto Rico Bottling Co., 161 F.3d 77 (Daubert does not require court to pick among competing scientific views)
- Milward v. Rust‑Oleum Corp., 820 F.3d 469 (differential diagnosis must reliably rule in/out causes to support causation opinion)
- Cellular Phone Taskforce v. F.C.C., 205 F.3d 82 (FCC declined to regulate non‑thermal RF effects and hypersensitivity given scientific uncertainty)
- Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (summary judgment standard: genuine dispute vs. material fact)
- McDonnell Douglas Corp. v. Green, 411 U.S. 792 (burden‑shifting framework for retaliation claims)
- Crawford v. Lamantia, 34 F.3d 28 (conclusory allegations and speculation insufficient to defeat summary judgment)