Firstenberg v. Monribot

• Decision Date: 05 March 2015
• Docket Number: 32,549.,No. 35,275.,35,275.
• Citation: 350 P.3d 1205
• Parties: Arthur FIRSTENBERG, Plaintiff–Appellant/Cross–Appellee, v. Raphaela MONRIBOT, Defendant–Appellee/Cross–Appellant and Robin Leith, Defendant.
• Court: Court of Appeals of New Mexico

350 P.3d 1205

Arthur FIRSTENBERG, Plaintiff–Appellant/Cross–Appellee

v.Raphaela MONRIBOT, Defendant–Appellee/Cross–AppellantandRobin Leith, Defendant.

32,549.

No. 35,275.

Court of Appeals of New Mexico.

March 5, 2015.

Certiorari Denied, June 3, 2015,

Arthur Firstenberg, Santa Fe, NM, Pro Se Appellant.

Graeser & McQueen, LLC, Christopher L. Graeser, Joseph L. Romero Trial Lawyer LLC, Joseph L. Romero Santa Fe, NM, for Appellee.

OPINION

SUTIN, Judge.

{1} Arthur Firstenberg sued his neighbor, Raphaela Monribot, and Robin Leith, the owner-lessor of Ms. Monribot's residence,¹ for injunctive relief and monetary damages under the theories of nuisance and prima facie tort. In his complaint, Mr. Firstenberg alleged that because he suffers from a condition called electromagnetic sensitivity (EMS)² that renders him acutely sensitive to electromagnetic radiation, his health was adversely affected by Ms. Monribot's use, within her own residence, of various electronic devices that generate electromagnetic radiation, including a cell phone, a Wi–Fi modem, dimmer switches, and a microcell. After nearly three years of litigation, having held an evidentiary hearing regarding the admissibility of expert scientific testimony, the district court determined that Mr. Firstenberg lacked admissible evidence of general causation and, therefore, granted summary judgment in favor of Ms. Monribot and Ms. Leith (Defendants). Mr. Firstenberg appeals from the court's summary judgment order. As will be discussed in this Opinion, Mr. Firstenberg raises several points of error related to the district court's summary judgment order and to various district court orders that preceded the court's summary judgment.

{2} The electric lines and meter serving Mr. Firstenberg's property were located on Defendants' property. In an effort to force Mr. Firstenberg to relocate and cease using the electric lines and meter on Defendants' property, Ms. Monribot filed counterclaims against Mr. Firstenberg, seeking declaratory and injunctive relief and trespass damages. The court, having determined that Mr. Firstenberg had an implied easement by necessity that permitted him to access the equipment, granted partial summary judgment in favor of Mr. Firstenberg as to all of Ms. Monribot's counterclaims. Ms. Monribot cross-appeals from this and other district court rulings. Ms. Leith is not a party in this appeal.

{3} As to Mr. Firstenberg's appeal, we conclude that his arguments do not demonstrate that the district court's summary judgment in favor of Ms. Monribot as to his claims of prima facie tort and nuisance was in error. We hold that Mr. Firstenberg's remaining arguments provide no basis for reversal, and we affirm the district court's summary judgment in favor of Ms. Monribot. As to Ms. Monribot's cross-appeal, we conclude that the issues raised therein provide no basis for reversal.

BACKGROUND

{4} This case comes to us with a lengthy and complicated factual and procedural history. As background, we provide only those facts that are necessary to illuminate the appellate issues. Further facts are provided, as necessary, in the body of this Opinion.

{5} Mr. Firstenberg claims that he suffers from EMS, the numerous symptoms of which are triggered by electromagnetic radiation, such as radio waves emitted from cell phones, computers, electrical transmission lines, and similar devices. Mr. Firstenberg claims, further, that owing to “chemical” and electromagnetic sensitivities, he has been declared totally and permanently disabled by the United States Social Security Administration and that since 1992 Mr. Firstenberg has been collecting social security disability benefits on that basis.

{6} Mr. Firstenberg and Ms. Monribot met in 2008 when Ms. Monribot responded to his Craigslist ad seeking a personal cook. Mr. Firstenberg hired Ms. Monribot to cook his meals, and he ate his meals in her house; this arrangement lasted approximately one month until Ms. Monribot went to Europe for four months. While she was in Europe, Ms. Monribot sublet her house to Mr. Firstenberg, and later, Mr. Firstenberg purchased the house. Approximately one year later, Ms. Monribot returned to Santa Fe and moved into a house (owned by Ms. Leith) that was next door to Mr. Firstenberg's house. The day after Ms. Monribot moved in next door to him, Mr. Firstenberg became so ill that he thought he “could die[,]” and his symptoms recurred every time he returned to his house.

{7} Mr. Firstenberg attributed his illness to Ms. Monribot's use, within her own home, of a cell phone and a number of dimmer switches, and later, to her Wi–Fi and microcell. Ms. Monribot refused Mr. Firstenberg's requests to replace her dimmer switches with regular switches, use a land-line instead of a cell phone, to turn off her Wi–Fi, and to unplug her computer at night; she later refused Mr. Firstenberg's offer of $10,000 to comply with his requests. Mr. Firstenberg stated that because Ms. Monribot would not comply with these requests, he was unable to use his house for more than a few minutes at a time without suffering EMS symptoms that were caused by radiation from Ms. Monribot's electronic devices “entering” and “leak[ing]” into his house. Accordingly, Mr. Firstenberg filed the present lawsuit.

{8} Mr. Firstenberg's original complaint, filed on January 4, 2010, for nuisance and prima facie tort named only Ms. Monribot as a Defendant. He later filed a first amended complaint, in which Ms. Leith was added as a defendant and indispensable party, and a second and third amended complaint.³ His complaint for prima facie tort was founded on allegations that, in summary, Ms. Monribot, who knew of Mr. Firstenberg's EMS, “bombard[ed Mr. Firstenberg's] residence with electromagnetic radiation, which she knew would injure [him]”; that she did so intentionally, with the certainty that injury would necessarily result to Mr. Firstenberg; that her use of electronic devices “rendered [Mr. Firstenberg's] home extremely difficult to inhabit and have caused him years of inconvenience and acute and chronic pain and suffering”; and that Ms. Monribot's conduct “had no valid purpose and was unjustifiable” because she could use a land-line, cable instead of Wi–Fi, and engage in “other simple practices that would not cause her undue expense or inconvenience.” Mr. Firstenberg's claim of nuisance was based, in summary, on his allegations that Ms. Monribot's use of electronic devices interfered with his normal residential activities and his private use and enjoyment of his home and his land; Ms. Monribot's actions were intentional and unreasonable; that she knew or should have known that “bombarding [Mr. Firstenberg's] home with electromagnetic radiation interfered with [his] use and enjoyment of his land”; and that her actions caused Mr. Firstenberg “years of inconvenience and acute and chronic pain and suffering.” Mr. Firstenberg's complaint sought damages totaling 1.43 million dollars and injunctive relief prohibiting Ms. Monribot from operating equipment that emits electromagnetic radiation.

{9} Ms. Monribot filed counterclaims, seeking a declaratory judgment, injunctive relief, and damages for trespass, seeking to force Mr. Firstenberg to cease using and to relocate the electric lines and meter that are on Defendants' property. Further details related to the factual bases of Ms. Monribot's counterclaims and the district court's disposition of those claims are provided later in this Opinion.

{10} Owing to the nature of Mr. Firstenberg's claims in this case, both Defendants and Mr. Firstenberg obtained experts on the issue of the cause of Mr. Firstenberg's symptoms. Mr. Firstenberg sought to prove that his EMS symptoms were caused by Ms. Monribot's use of electronic devices by relying on the expert testimony of Dr. Erica Elliott, M.D., Mr. Firstenberg's treating physician, and Dr. Raymond Singer, Ph.D, a neurotoxicologist. Defendants sought to prove, through the testimony of psychologist, Dr. Herman Staudenmayer, Ph.D, that Mr. Firstenberg's EMS symptoms were psychological, caused by an undifferentiated somatoform disorder

. Each party filed motions seeking to exclude the other's expert on the ground that the proffered expert testimony was inadmissible pursuant to the standards by which the admissibility of scientific expert testimony is measured. Defendants filed an amended version of their motion to exclude the testimony of Drs. Elliott and Singer, and relying on their memorandum in support thereof, Defendants simultaneously filed a motion for summary judgment on the ground that, because Mr. Firstenberg's proffered experts as to causation were not qualified to provide expert scientific testimony, Mr. Firstenberg could not prove causation.

{11} Mr. Firstenberg appeals from the district court's order granting summary judgment in favor of Defendants as to all “allegations, counts[,] and causes of action asserted against Defendants in [Mr. Firstenberg's t]hird [a]mended [c]omplaint for [n]uisance and [p]rima [f]acie [t]ort.” The basis for the district court's summary judgment order was Mr. Firstenberg's failure to demonstrate that admissible scientific evidence supported his theory of general causation, that is, that exposure to electromagnetic fields causes, or is capable of causing, the injuries that Mr. Firstenberg complains of, namely, adverse health affects from EMS. The crux of this appeal, therefore, is the propriety of the district court's summary judgment.

{12} Although Mr. Firstenberg raises numerous contentions of error related to various district court rulings and actions that preceded the summary judgment order and that, in his view, warrant reversal of particular rulings, many of Mr. Firstenberg's contentions of error were rendered moot by the district court's summary judgment order. Because we conclude that the district court did not err in granting summary judgment based on Mr. Firstenberg's failure to demonstrate that admissible evidence supported...