LOS ANGELES (Legal Newsline) - A California appeals court restored a teacher’s lawsuit against the Los Angeles Unified School District, saying she adequately claimed the district failed to accommodate her disabling sensitivity to microwave radiation.
The decision drew a tepid concurrence from one judge, who said it was correct on the law but demonstrated the potential risk of allowing high-priced expert witnesses and junk science into the courtroom.
Laurie Brown joined the L.A. school district in 1989 and says she suffered crippling symptoms after LAUSD installed a new wi-fi system at Millikan Middle School in 2015. Soon after the system was activated, Brown says, she 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.”
She reported her symptoms to superiors and they gave her several days of leave, but she fell ill again two to three hours after returning to work. Her physician, Dr. Huy Hoang, diagnosed her with electromagnetic hypersensitivity, also called “microwave sickness,” and said it was disabling.
The school district tried to accommodate Brown by turning off the wi-fi in her room and using a hardwired computer, but the teacher said the measures didn’t work and she needed “paints and other forms of shielding materials to block wi-fi and radio frequencies from her room.”
School officials met with her for a second time and Brown asked to be moved to a place on the campus where she wouldn’t be exposed to radio waves. The board denied her second request on Nov. 13, 2015, concluding the wi-fi system was safe. Her medical leave was extended until June 2016.
After an appeal hearing in February 2016 the school district offered three options: allow the district’s own consultant to measure microwave emissions, choose another consultant, or drop her request for testing. In April Brown told the board its consultant was biased and she wanted a different consultant. The board decided in June they didn’t agree with her choice of consultant and concluded the wi-fi system was safe.
Brown sued the school district in March 2018, claiming discrimination, retaliation and failure to accommodate her disability under the California Fair Employment and Housing Act. The trial court dismissed her case, saying she failed to plead facts to support her claims.
The California Court of Appeal for the Second District partially reversed, ruling that while Brown’s discrimination and retaliation claims were unsupported, a jury could conclude the district had failed to accommodate her disability.
California law is broader than the Americans with Disabilities Act, the appeals court noted. With FEHA, the court said, the legislature “has stated its intent that `physical disability’ be construed so that employees are protected from discrimination due to actual or perceived physical impairment.” Since her claimed symptoms involved body systems named in the law, “Brown adequately pled physical disability within the four corners of the statute,” the court concluded.
The school district argued it made multiple attempts to accommodate Brown and failed, and since she suffered similar symptoms at home there was nothing more it could do for her. The appeals court disagreed, saying “those are questions for the ultimate finder of fact.”
Judge John Shepard Wiley concurred in the ruling, saying “California state civil procedure makes complaints easy to write and hard to attack.” He said this is justified since pretrial litigation over pleadings “is costly and time consuming and rarely yields much helpful information for litigants about the true value of their case.”
“Yet even with our state’s healthy attitudes about easy pleading, I worry about giving any sort of green light to this unprecedented and unorthodox disability claim,” he continued. “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.’”
Such a case lends itself to high-priced expert witnesses, Judge Wiley wrote, who have “enormous potential as a weapon of pure advocacy.”
“It does not take much experience as a trial judge in Los Angeles to realize the use of expert witnesses has run riot,” he wrote. He suggested judges appoint their own experts, a rarely used option because lawyers on both sides hate it.
“The last thing trial lawyers want is another source of uncertainty in the case: something powerful and beyond their control,” the judge wrote. But “once you appoint that expert, it can be startling how fast the case settles,” he concluded.