Lakey v. Puget Sound Energy, Inc.
| Citation | 176 Wash.2d 909,296 P.3d 860 |
| Decision Date | 07 March 2013 |
| Docket Number | No. 87679–7.,87679–7. |
| Parties | Catherine LAKEY, a single woman; Gertha Richards, a single woman; Michael Heslop, a single man; Troy Freeman and Carolina Ayala de Freeman, husband and wife; Patrick McClusky and Michelle McClusky, husband and wife; Shahnaz Bhuiyan and Ann Rahman; husband and wife; Steven Ryan and Nora Ryan, husband and wife; Kevin Corbett and Margaret Corbett, husband and wife; Kathryn McGifford, a single woman; and Jacquelyn Miller, a single woman, Appellants, v. PUGET SOUND ENERGY, INC., a Washington corporation; and City of Kirkland, a Washington municipal corporation, Respondents. |
| Court | United States State Supreme Court of Washington |
OPINION TEXT STARTS HERE
Paul Edward Brain, Brain Law Firm PLLC, Tacoma, WA, for Appellant.
Oskar E. Rey, City of Kirkland, Robin Jenkinson, City Attorney, Kirkland, WA, Jeffrey M. Thomas, Jeffrey Iver Tilden, Gordon Tilden Thomas & Cordell LLP, Jessica Levin, Attorney at Law, Seattle, WA, Curtis S. Renner, Watson & Renner, Washington, DC, for Respondent.
Eric Christensen, Gordon Thomas Honeywell, Seattle, WA, amicus counsel for Public Utility District No. 1, Washington Public Utility District No. 1, and City of Seattle.
Daniel Brian Heid, City of Auburn, Auburn, WA, Amicus Curiae on behalf of Washington State Association.
FAIRHURST J.
[176 Wash.2d 913]¶ 1 Catherine Lakey, Gertha Richards, Michael Heslop, Troy Freeman and Carolina Ayala de Freeman, Patrick and Michelle McClusky, Shahnaz Bhuiyan and Ann Rahman, Steven and Nora Ryan, Kevin and Margaret Corbett, Kathryn McGifford, and Jacquelyn Miller (hereinafter the homeowners) own property bordering a parcel owned by Puget Sound Energy, Inc. (PSE) where an electrical substation has been located for over 50 years. The homeowners sued PSE and the city of Kirkland (City) after PSE constructed a new neighborhood power substation on PSE's property. The homeowners seek review of the trial court's decision to exclude the testimony of their expert under the rule announced in Frye v. United States, 54 App. D.C. 46, 293 F. 1013 (1923), and its ultimate decision to grant summary judgment to PSE on the homeowners' nuisance claim.1 The homeowners also seek review of the trial court's decisions to apply the provisions of the Land Use Petition Act (LUPA), chapter 36.70C RCW, to their inverse condemnation claim and to grant summary judgment to the City on this claim. Although we reverse the trial court's Frye and LUPA rulings, we affirm its decisions disposing of the homeowners' claims.
¶ 2 The homeowners each own property near a parcel owned by PSE in the Juanita neighborhood of Kirkland, Washington. PSE bought its property in 1958 and built the original substation in 1960. For 52 years, there has been a substation on the property. In 2008, in order to satisfy growing electrical demand in Kirkland, PSE sought to replace the existing substation with a new one. The planned new substation had the added advantage of having two transformers, providing redundancy in case a transformer failed, a feature lacking at the old substation. Because the new substation was larger and did not comply with the City's zoning code, PSE applied for a variance from the applicable ordinances.2
¶ 3 The City's hearing examiner approved PSE's variance application after holding a public hearing. The homeowners appealed to the Kirkland City Council, but the council affirmed the variance decision. The homeowners did not appeal the council's decision with a land use petition.
¶ 4 PSE constructed the substation and in early 2010 it went on line. The homeowners thereafter filed suit against PSE in King County Superior Court. The homeowners alleged that the electromagnetic fields (EMFs) emanating from the substation trespassed on their property and constituted both a public and private nuisance. The homeowners claimed they reasonably feared exposure to the EMFs emitted by the substation and that this was injurious to their health and interfered with the use and enjoyment of their property.
¶ 5 PSE moved to dismiss with prejudice all of the homeowners' claims under CR 12(b)(6). PSE argued, among other things, that the homeowners could not reasonably fear the EMFs emitted by the substation because, PSE contended, the fields have no deleterious health effects. After reviewing PSE's motion, the trial court ordered the homeowners to submit scientific evidence to support their claims.
¶ 6 The homeowners submitted multiple declarations, including sworn statements by experts Dr. Be Kun Li and Dr. David Carpenter, to which they attached scientific studies and statements made by governmental bodies. The homeowners contend these attachments show the adverse health effects of, and therefore the reasonableness of the homeowners' fears of, EMF exposure.
¶ 7 PSE moved to exclude the testimony of Li and Carpenter under ER 702 and the rule announced in Frye.3 The trial court ordered a Frye hearing on the admissibility of the testimony.
¶ 8 In the interim between PSE's motion to dismiss and the Frye hearing, the homeowners moved to amend their complaint to add the City as a defendant and alleged that the City's decision to grant PSE the variance amounted to an inverse condemnation.4
¶ 9 At the three day Frye hearing, both sides offered expert testimony. The homeowners offered Carpenter who testified that he concluded that EMF was a possible cause of childhood and adult leukemia, Alzheimer's disease, amyotrophic lateral sclerosis, and infertility. Carpenter also testified about the methodology he employed to reach his conclusions. Carpenter explained that he performed no original research. Instead, he performed a literature review, reanalyzing data collected by others as part of peer reviewed epidemiological studies.5 Carpenter stated that this was a generally accepted practice used by governmental agencies to decide whether to list an agent as capable of causing human disease. Carpenter did admit, however, that he discounted studies and data that showed no EMF-disease link when reaching his conclusions, especially newer studies. He also testified that he reached his conclusions about the health effects of EMF exposure using epidemiological studies alone and without considering toxicological studies. 6
¶ 10 PSE called Dr. Nancy Lee and Dr. Mark Israel. PSE offered Lee as an expert in epidemiology and she began her testimony with an overview of epidemiological practices. Lee explained that epidemiology has protocols to ensure accurate and reliable results. Lee then testified that Carpenter had failed to comply with these protocols by failing to consider all the data relevant to a link between EMF exposure and illness and that his failure to do so violated generally accepted epidemiological practices. Specifically, Lee testified that Carpenter had selectively ignored numerous studies that contradicted his conclusions, including the most recent studies about EMF exposure. Lee also noted that Carpenter had not only selectively ignored studies that disagreed with his conclusions, but he had even selectively ignored data within studies, creating a distorted view of the effects of EMF exposure. Lee testified that this approach also violated established epidemiological protocols.
¶ 11 Both Lee and Israel also testified that proper epidemiological methodology required consideration of the toxicologicalstudies, which showed no correlation between EMF exposure and illness. In their opinion, Carpenter's methodology violated established epidemiological protocols.
¶ 12 The trial court ruled Carpenter's testimony was inadmissible at the end of the Frye hearing. The trial court determined that Carpenter's theories lacked general acceptance in the scientific community and that he had failed to follow proper epidemiological methodology, rendering his conclusions unreliable. Consequently, the trial court excluded Carpenter's opinion under Frye. After excluding Carpenter's testimony, the trial court granted PSE's motion “to the extent that [the homeowners] cannot bring a nuisance or trespass claim based on the presence of [EMFs].” Clerk's Papers at 1422.
¶ 13 After hearing the City's motion for summary judgment, the trial court ruled that the homeowners were required to appeal the City's decision to grant the variance under LUPA. Because the homeowners had failed to timely file a LUPA petition, the trial court granted the City summary judgment on the inverse condemnation claim.
¶ 14 The homeowners appealed, and the Court of Appeals certified the appeal to this court pursuant to RCW 2.06.030.
1. Did the trial court properly exclude Carpenter's testimony under Frye on the nuisance claim to PSE?
2. Did the trial court properly grant summary judgment on the nuisance claim?
3. Did the trial court properly interpret LUPA as applying to the inverse condemnation claim brought against the City?
4. Did the trial court properly grant summary judgment on the inverse condemnation claim?
¶ 15 The homeowners assign error to two trial court decisions regarding their nuisance claim against PSE. First, they appeal the trial court's order excluding Carpenter's testimony because they claim that his testimony did not involve novel scientific evidence. Second, they appeal the trial court's ultimate decision to grant PSE summary judgment.
1. The trial court improperly excluded Carpenter's testimony under Frye but properly excluded it under ER 702
¶ 16 The trial court must exclude expert testimony involving scientific evidence unless the testimony satisfies both Frye and ER 702. State v. Copeland, 130 Wash.2d 244, 255–56, 922 P.2d 1304 (1996). To admit evidence under Frye, the trial court must find that the underlying scientific theory and the “ ‘techniques, experiments, or studies utilizing that theory’ ” are generally accepted in the relevant scientific community and capable of producing...
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