282 F.Supp.3d 381
D. Mass.2017Background
- G, a minor, and his parents sued The Fay School and its headmaster after the school refused requests to remove Wi‑Fi from G’s classrooms; plaintiffs allege G suffers from Electromagnetic Hypersensitivity (EHS) and needs accommodation under the ADA.
- Plaintiffs sought mitigation (Ethernet access, separation from Wi‑Fi sources); the school implemented partial measures but declined full Wi‑Fi removal as impractical; G withdrew from the school in January 2016.
- Plaintiffs assert ADA failure‑to‑accommodate (Count I), ADA retaliation (Count II), breach of contract (Count III), misrepresentation (Count IV), and negligence (Count V).
- Defendants moved to exclude five plaintiff experts under Rule 702 and for summary judgment on all counts; the court held a Daubert hearing and assessed each expert’s admissibility.
- Court admitted Dr. David Carpenter (general causation) and Dr. Martha Herbert (specific‑causation opinion framed as plausible), but excluded Dr. Jeanne Hubbuch, Dr. Karl Maret, and electrician Robert Bowdoin for unreliable methods, lack of helpfulness, or lack of sufficient facts.
- On summary judgment the court: granted judgment for defendants on Counts I (ADA accommodation), III (breach of contract), IV (misrepresentation against school and headmaster), and V (negligence); denied summary judgment as to Count II (ADA retaliation) with respect to two specific adverse acts (exclusion from athletics and omission of brother from program).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Jurisdiction/preemption (FCC/primary jurisdiction) | ADA claim for accommodation of EHS is cognizable in court; not an attack on FCC rules | FCC expertise and discretion preempt or require deference; TCA §255 preempts | Court: FCC rulemaking not a bar; primary jurisdiction not invoked; ADA claim not preempted |
| Admissibility of general causation expert (Dr. Carpenter) | EMFs/Wi‑Fi can cause EHS; expert methodology reliable | Carpenter is a dissenting, unscientific ‘‘cherry‑picking’’ advocate | Court: Admitted Carpenter; minority views may be presented to jury |
| Admissibility of specific causation experts (Drs. Hubbuch, Herbert) | Experts show G has EHS caused by Fay’s Wi‑Fi | Experts fail to reliably rule in Wi‑Fi and rule out other causes; insufficient data | Court: Excluded Hubbuch (unreliable differential diagnosis); admitted Herbert (plausible, cautious analysis) |
| ADA failure‑to‑accommodate (Count I) | Plaintiffs: Wi‑Fi caused G’s disability; accommodation required | Defendants: plaintiffs lack proof of specific causation; mitigation already provided | Court: Granted summary judgment for defendants—insufficient evidence of specific causation |
| ADA retaliation (Count II) | Plaintiffs: school’s hostile responses and actions were retaliation for protected conduct | Defendants: actions justified by school policy and nondiscriminatory reasons | Court: Denied summary judgment as to two discrete acts (athletics exclusion; program omission); other alleged acts failed prima facie or were non‑retaliatory |
| Breach of contract re: Handbook | Handbook promises created enforceable contractual obligations to support students | Handbook statements are aspirational, not definite contractual terms | Court: Handbook provisions cited were aspirational; summary judgment for defendants |
| Misrepresentation & individual liability | Plaintiffs relied on Handbook representations; headmaster involved in misrepresentations | Statements were general/aspirational; no evidence of knowing falsity or personal benefit by headmaster | Court: Summary judgment for defendants on misrepresentation claims (no knowledge of falsity; no personal liability shown) |
| Negligence | School negligently exposed G to harmful RF | School complied with FCC safety limits; no proof of harm from Wi‑Fi | Court: Summary judgment for defendants—no proven causation and compliance with safety limits satisfies ordinary duty of care |
Key Cases Cited
- Daubert v. Merrell Dow Pharm., 509 U.S. 579 (1993) (trial courts must ensure expert testimony rests on reliable foundation and is relevant)
- Ruiz‑Troche v. Pepsi Cola of Puerto Rico Bottling Co., 161 F.3d 77 (1st Cir. 1998) (Daubert does not require courts to choose the best scientific theory; admissible if on good grounds)
- Milward v. Rust‑Oleum Corp., 820 F.3d 469 (1st Cir. 2016) (differential diagnosis is reliable only if causes are ruled in/out by scientifically valid methods)
- Cellular Phone Taskforce v. F.C.C., 205 F.3d 82 (2d Cir. 2000) (FCC found impracticable to resolve controversial non‑thermal RF biological effects; declined to regulate electrosensitivity)
- McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) (burden‑shifting framework for discrimination/retaliation claims)
- Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) (summary judgment standard: genuine dispute as to any material fact)