United States District Court, D. Massachusetts
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.
MEMORANDUM AND ORDER ON DEFENDANTS' MOTION TO
EXCLUDE PLAINTIFFS' EXPERTS (Docket No. 58) AND
DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (Docket No.
TIMOTHY S. HILLMAN DISTRICT JUDGE
“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
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.
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
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.
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
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.
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
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
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.
filed the present action on August 12, 2015. Defendants now
move to exclude the Plaintiffs' expert witnesses, and for
summary judgment on all Counts.
to Exclude Plaintiffs' Experts
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.
Federal Rule of Evidence 702, a witness who is qualified as
an expert may testify in the form of an opinion or otherwise
(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
(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.
David Carpenter, M.D.
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.
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.
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
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 ...