RICHMOND, Va. (Legal Newsline) - A mother and daughter who blamed a constellation of symptoms including hair loss, epilepsy and “brain fog” on the electric “smart meter” installed on their house lost their chance for compensation when the Virginia Supreme Court upheld the dismissal of their complaint because it was preempted by federal law.
Donna and Sarah Kinsey sued Virginia Electric and Power Co. after they discovered the utility had installed electric meters that transmitted information via radio waves on their house and shed as part of an experimental program. After years of living in the home with no health issues, Donna and her daughter said they fell ill in March 2012 with a variety of complaints, from mood swings to inability to concentrate and an “auto immune endocrine disorder.”
In November 2012, Donna began looking for causes for the ringing in her ears and discovered Internet references to smart meters, including a picture she used to identify the smart meter on her house. She asked Virginia Electric to remove the meters but the utility refused, telling her they were safe. The company offered to move the meter from her house to a nearby pole but said she'd have to pay.
Later the utility allowed customers to opt out of the smart meter program and eventually Virginia Electric replaced the Kinseys’ meter with a unit that had the radio transmission capability disabled. Donna sued the company in 2014, and her daughter Sarah filed her own suit in 2016.
The trial court refused to dismiss claims of fraud and negligence and the Kinseys moved for a jury trial on disputed facts and issues. After the Federal Communications Commission released proposed guidelines on radio emissions in 2019, the plaintiffs withdrew their request for a jury and asked the judge to decide whether their claims were preempted by federal law.
The judge held a hearing in January 2020 and dismissed the case on preemption grounds a couple of weeks later, saying the Kinseys tried to recast their complaint as a lawsuit over a malfunctioning smart meter on their home, but it was really a direct challenge to FCC regulations.
On appeal, the Virginia Supreme Court agreed. In a July 15 decision by Chief Justice Donald Lemons, the court said the lawsuits weren’t over any specific meter, but over whether the radio emissions themselves were dangerous. Since the FCC regulates radio frequency emissions, the court concluded, their state-law claims were preempted by federal law.