California Reinstates Claim Based on Wi-Fi-Induced Illness
Justice Wiley Says in Concurring Opinion That Cause of Action Was Adequately Pled, but Expresses Concern That ‘Green Light’ Is Given to Claims Based on Idiosyncratic Reactions to Common Circumstances
MetNews Staff Writer, Metropolitan News-Enterprise, Feb 19, 2021
The Court of Appeal for this district yesterday ordered reinstatement of a cause of action by a teacher against the Los Angeles Unified School District for failure to accommodate a disability—an adverse physical reaction to a Wi-Fi system—with a concurring justice remarking that under California’s lax pleading standards, a demurrer was improperly sustained, but expressing concern that offbeat disability claims will be encouraged.
Justice John Shepard Wiley of Div. Eight said in his concurring opinion:
“I worry about giving any sort of green light to this unprecedented and unorthodox disability claim. Plaintiff’s counsel was most reluctant at oral argument to admit it, but it seems clear we are the first court in the United States of America—a nation of over 300 million people—to allow a claim that ‘Wi-Fi can make you sick.’ ”
He said that “[u]p till now, the main published appellate opinion” on the subject “seems to have been” that of the Seventh U.S. Circuit Court of Appeals in Hirmiz v. New Harrison Hotel Corp. There, summary judgment was affirmed in an action against a hotel by a fired desk clerk who claimed discrimination in violation of the Americans With Disabilities Act (“ADA”), citing a disorder caused by prolonged exposure to electromagnetic voltage at the work site.
Black Cat Phobia
Then-Judge Richard Allen Posner (now retired) wrote:
“There is debate in the medical community over whether sensitivity to electromagnetic voltage is a physical disorder or a psychological one….If it is psychological, the symptoms might not constitute a disorder that would entitle Hirmiz to the protections of the Americans with Disabilities Act. A great deal of psychological distress is trivial—fear of black cats, for example.”
Wiley observed that Wi-Fi systems are ubiquitous, and remarked:
“Nearly everyone wants the phenomenal convenience of the virtual world in your hand, everywhere you go, and the faster the better. All the potential defendants responding to this popular demand may take solemn note of news that, as of today, their Wi-Fi systems now may possibly invite costly litigation from members of the public who say that Wi-Fi made them sick. And potential plaintiffs and their counsel will have an interest too.
“The law worries about junk science in the courtroom. One concern is that a partisan expert witness can bamboozle a jury with a commanding bearing, an engaging manner, and a theory that lacks respectable scientific support.”
Wiley had a suggestion: appointment of an expert by the court, pursuant to Evidence Code §§730-732. He commented:
“The option of a court-appointed expert has been available in California for generations. Few judges have tried this option, though, because the parties never suggest it. The last thing trial lawyers want is another source of uncertainty in the case: something powerful and beyond their control….
“The trial court may want to consider this option in this case.”
Once an expert is appointed, he said, “it can be startling how fast the case settles.”
Justice Maria E. Stratton wrote the majority opinion, in which Acting Presiding Justice Elizabeth A. Grimes joined. The opinion reverses, in part, a judgment of dismissal that followed the sustaining of demurrers without leave to amend by then-Los Angeles Superior Court Judge Richard Rico (now a private judge).
Stratton expressed agreement with Rico’s dumping of teacher Laurie Brown’s causes of action for employment discrimination based on a disability, retaliation for her complaints, and failure to engage in an interactive process. But Rico erred, she said, in sustaining a demurrer to the cause of action for failure to accommodate her disability—which Stratton labeled “electromagnetic hypersensitivity” (“EHS”), otherwise known as “microwave sickness.”
She found unpersuasive federal cases such as Hirmiz which do not recognize EHS as a disability, noting that Brown sued under California’s Fair Employment and Housing Act (“FEHA”) which defines a disability more broadly than the ADA. Under the FEHA, Stratton pointed out, a physical disability includes a condition that “[a]ffects one or more of the following body systems: neurological, immunological, musculoskeletal, special sense organs, respiratory, including speech organs, cardiovascular, reproductive, digestive, genitourinary, hemic and lymphatic, skin and endocrine” and also “[l]imits a major life activity.”
The jurist quoted the operative complaint as saying that Brown suffered “chronic pain, headaches, nausea, itching, burning sensations on her skin, ear issues, shortness of breath, inflammation, heart palpitations, respiratory complications, foggy headedness, and fatigue, all symptoms of Microwave Sickness or EHS.”
“These described symptoms affect one or more of the body systems listed in the statute and limited Brown’s major life activity of working as a teacher…. Brown adequately pled physical disability within the four corners of the statute.”
She went on to say:
“Brown has adequately pled failure to accommodate. The FAC alleges that she suffers from a physical disability, but can perform the essential functions of the position with the accommodation ‘to which LAUSD initially agreed to but subsequently refused to honor and/or other reasonable accommodations, such as use of paints, fabrics and/or other shielding materials to block or minimize exposure to electromagnetic frequencies.’ ”
The case is Brown v. Los Angeles Unified School District, 2021 S.O.S. 729.
Attorneys on appeal were Joseph M. Lovretovich and Jennifer A. Lipski of JML Law in Woodland Hills, for Brown, and Anthony J. Bejaranoand David V. Greco of LAUSD’s Office of General Counsel arguing for an affirmance.
LAURIE BROWN, Plaintiff and Appellant, v. LOS ANGELES UNIFIED SCHOOL DISTRICT, Defendant and Respondent. Court of Appeals of California, Second District, Division Eight.Filed February 18, 2021.