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G. v. The Fay School, Inc.

United States District Court, D. Massachusetts

September 29, 2017

G, a 12-year-old minor suing by a fictitious name for privacy reasons, MOTHER, and FATHER, suing under fictitious names to protect the identity and privacy of G, their minor child, Plaintiffs,
THE FAY SCHOOL, INC. by and through its Board of Trustees and ROBERT J. GUSTAVSON, JR. Defendants.



         Plaintiffs “G, ” a 12-year old minor suing by a fictitious name for privacy reasons, and G's parents brought the present action against defendants The Fay School, Inc. (“Fay School” or “School”) and Robert Gustavson, its Head of School (“Gustavson”) after the Defendants' refused to remove Wi-Fi from his classrooms. Plaintiff G, a former student of the Fay School, alleges that he suffers from Electromagnetic Hypersensitivity Syndrome, and experiences a spectrum of symptoms, including headaches and nosebleeds, because of the Wi-Fi at the School. Plaintiffs claim that the School's refusal to take down the Wi-Fi in G's classrooms, and replace it with Ethernet access, amounts to a failure to make a reasonable accommodation in violation of the Americans with Disabilities Act, 42 U.S.C. §12101 et seq. (“ADA”) (Count I). Plaintiffs also claim that the Fay School retaliated against them in violation of the ADA (Count II), and further assert common law claims for breach of contract (Count III), misrepresentation (Count IV), and negligence (Count V) against the Fay School and Gustavson. Defendants move to exclude several of the Plaintiffs' expert witnesses, and for summary judgment on all Counts. For the reasons set forth below, the Defendants' motion to exclude experts (Docket No. 58) is granted-in-part and denied-in-part, and Defendants' motion for summary judgment (Docket No. 95) is granted-in-part and denied-in-part.


         The Fay School is an independent private school in Southborough, MA, for children in pre-K through 9th grades. Plaintiff G attended the Fay School from September 2009 through January 2016 (midway through his 7th grade year). The Fay School's curriculum is, in large part, delivered electronically, with each student equipped with a laptop that connects to the School's network using Wi-Fi.

         At least as early as October 2012, G's parents came to believe that Wi-Fi was generally harmful, and expressed their concerns to the School and other parents. By May 2014, after discussing the issue with G's parents, the School had decided that there was insufficient evidence to require any mitigation of their Wi-Fi system. Around the same time, G's mother took G to his primary care provider complaining that her son suffered from Wi-Fi-related symptoms, including headaches, nosebleeds, and chest tightness, and subsequently sought the advice of specialists. The parents continued to advocate against Wi-Fi within the School community, to which the School administration objected.

         In November 2014, G's parents formally asserted that G had a disability known as Electromagnetic Hypersensitivity Syndrome (“EHS”), and requested accommodation, including reducing the level of radio frequency emissions (“RF”) at the School. The School verified that it was in compliance with the Federal Communications Commission's Wi-Fi safety limits, but declined to recognize G's EHS, requesting additional medical evidence. The parents and the School continued to dispute the steps necessary to establish the medical evidence needed to support an EHS diagnosis. Plaintiffs filed the present action on August 12, 2015.

         From mid-2015, G's parents and the School participated in negotiation concerning mitigation of G's Wi-Fi exposure. In an attempt to mitigate G's Wi-Fi exposure, the School arranged for G to access curriculum using an Ethernet cable, and have at least an 8 ft. separation from Wi-Fi emission sources, principally other laptops in the classroom. In November 2015, G's parents advised that G continued to suffer symptoms, despite the reductions in his Wi-Fi exposure achieved by the mitigations, and demanded further accommodation.

         G took leave from the School on December 1, 2015, and on December 18, 2015, the parents requested that the School provide only wired connections to all students in G's classrooms, or provide G with a Wi-Fi-free classroom, and rotate G's classes into that room. The School formally declined this request as impractical on January 4, 2016. G's parents withdrew him from the School on January 13, 2016.

         The Plaintiffs noted several sequelae to their dispute with the School that they have alleged were retaliatory. During G's Fall 2015 medical leave (due to headaches), the School declined to allow G's classes to be recorded, or for him to listen to classes remotely. The Fay School also declined to allow G to participate in school athletics during the period that he was on leave, studying away from the School. The School omitted G's brother's name from the written program of an 8th grade graduation dinner, and did not recognize him by name at the dinner, causing distress to the child. When it emerged that G had been carrying a dosimeter at the School to measure RF emissions, the School threatened to expel him on the grounds that carrying the device breached the terms of the Fay School student handbook (“Handbook”). In discovery, it emerged that some of the Fay School staff derided the parents' claims concerning Wi-Fi, and suggested that the school ignore or otherwise frustrate their claims. For example,, a member of the Fay School staff sent an email to teachers entitled “Rabbit Ears and Aluminum Foil, ” that instructed teachers not to respond to emails from G's mother about Wi-Fi issues. In a reply email, one of the teachers wrote back, “Blahahahahahahahaha!” Docket No. 62-7. The President of Fay's Board of Trustees sent an email to other Trustees accusing G's parents of harassment, and claiming that G's mother misrepresented herself, a claim that G's parents have suggested the Headmaster knew to be false but failed to correct. The Plaintiffs assert that, as a result of such misrepresentations, the Parents' Association removed G's mother from her long-standing committee service.

         The School publishes a Handbook for each academic year that sets out, inter alia, standards of behavior in the school community, as well as making declaratory statements about the School's commitments to civility, diversity and equality of opportunity. The Handbook provides that

[t]he School keeps “as a ‘core value…the wellness of mind, body and spirit of each student;'” “will provide each student with a ‘safe and supportive environment that recognizes, respects, and celebrates the full range of human diversity;'” “will help when students are in physical need;” “will ‘recognize and celebrate…disabilities;'” “affirms the necessity of respect for individual differences;” the School maintains an environment where “all community members feel supported;” and, the School affords its students “all rights, privileges, programs, and activities generally accorded or made available to students at Fay School. The School does not discriminate on the basis of such factors in the administration of its educational policies, employment policies…or other school administered policies.” The Handbook also states that “[h]onesty, respect, responsibility, empathy and kindness inform our conduct” and that “[t]he development of manners, civility, and integrity are hallmarks of our school.”

Docket No. 121, p. 13. Plaintiffs also highlight that the Handbook states

Fay School promotes and affirms the concept of human dignity. We expect all members of the community to respect the rights of others and to behave appropriately at all times. Fay recognizes and celebrates the diversity of our school community regarding racial, cultural, ethnic and religious backgrounds, gender identity, disability, sexual orientation…and the school affirms the necessity of respect for individual differences….

Docket No. 121, p. 13.

         Plaintiffs filed the present action on August 12, 2015. Defendants now move to exclude the Plaintiffs' expert witnesses, and for summary judgment on all Counts.

         Motion to Exclude Plaintiffs' Experts

         Defendants move to exclude the reports, opinions, and testimony of five of Plaintiffs' disclosed expert witnesses: David Carpenter, M.D. (“Dr. Carpenter”), Jeanne Hubbuch, M.D. (“Dr. Hubbuch”), Martha Herbert, M.D. (“Dr. Herbert”), Karl Maret, M.D., Ph.D. (“Dr. Maret”), and Robert Bowdoin (“Mr. Bowdoin”).

         Per Federal Rule of Evidence 702, a witness who is qualified as an expert may testify in the form of an opinion or otherwise provided that

(a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of the case.

Fed. R. Evid. 702. In applying Rule 702, the court qualifies expert testimony by “ensuring that [it] ... both rests on a reliable foundation and is relevant to the task at hand.” Daubert v. Merrell Dow Pharm., 509 U.S. 579, 597, 113 S.Ct. 2786 (1993). In seeking to introduce expert testimony, the plaintiff has the burden of establishing its reliability. See U.S. ex rel. Loughren v. UnumProvident Corp., 604 F.Supp.2d 259, 264 (D. Mass. 2009).

         A. David Carpenter, M.D.

         Plaintiffs provided the expert testimony of Dr. Carpenter to prove general causation - that EHS is a real, albeit rare, phenomenon. Dr. Carpenter received his medical degrees from Harvard Medical School, is the Director of the Institute for Health and the Environment at the University of Albany, and a Professor of Environmental Health Sciences within the School of Public Health. He is a researcher and educator on the subject of environmental causes of human disease, and his education and experience support his opinions as set forth in his expert Statement. Docket No. 59-3.

         Dr. Carpenter generally opines that exposure to electromagnetic fields (“EMFs”) can, in some people, cause EHS, the symptoms of which are consistent with those reported by G. Dr. Carpenter also suggests that it is biologically plausible that the symptoms described could be caused by the known biological effects of EMFs. Defendants move to exclude Dr. Carpenter's testimony on the grounds that his opinions are not based on reliable methods of assessing scientific evidence, and are outside the consensus of the relevant scientific community.

         If an expert's testimony is within “the range where experts might reasonably differ, ” the jury, not the trial court, should be the one to “decide among the conflicting views of different experts.” United States v. Zolot, 968 F.Supp.2d 411, 417 (D. Mass. 2013). As the First Circuit instructed in Ruiz-Troche v. Pepsi Cola of Puerto Rico Bottling Co., 161 F.3d 77, 85 (1st Cir. 1998),

Daubert does not require that a party who proffers expert testimony carry the burden of proving to the judge that the expert's assessment of the situation is correct. As long as an expert's scientific testimony rests upon ‘good grounds, based on what is known, ' it should be tested by the adversary process-competing expert testimony and active cross-examination-rather than excluded from jurors' scrutiny for fear that they will not grasp its complexities or satisfactorily weigh its inadequacies. In short, Daubert neither requires nor empowers trial courts to determine which of several competing scientific theories has the best provenance. It ...

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