Using Law and Advocacy to win Accommodations for Clients with Electromagnetic Hypersensitivity (EHS): Part 2 [i], [ii]
David McRobert[iii]
This is part 2 of a two-part series on using law and advocacy to win accommodations for clients suffering from electromagnetic hypersensitivity (EHS) associated with use of wireless technologies including routers and cell phones. Part 1 can be read here.
Introduction to Part 2
As noted in Part 1 of this series, the challenges facing lawyers and experts associated with addressing alleged injury caused by electromagnetic hypersensitivity (EHS) and other toxic substances through tort lawsuits are significant. Lawyers, experts, and their clients face several complex legal issues including: 1) identifying pathways; 2) calibrating dosages; 3) difficult diagnoses due to long latency periods; and 4) a duty on potential plaintiffs of workplace or health insurance claimants to mitigate harm.
Many EHS tort cases are addressed through insurance programs when available. Some cases involving workplace exposures are also submitted to the Ontario Workers Safety and Insurance Board (WSIB), which has consistently refused to recognize EHS claims as legitimate disabilities. Accommodations for EHS claimants are typically achieved through government legislation that protects the rights of individuals with ongoing disabilities and/or health impacts. Part 2 of this series will discuss how advocates can achieve these accommodations and examine the types of conflicts that arise due to competing rights. The bad news is that these individuals and their legal and medical representatives often have to make persistent efforts to obtain modest accommodations. As argued, this makes creativity and a willingness to compromise essential in the developing workable accommodations that meet the needs of affected individuals, employers, other employees and third parties.
Tort law
Tort Law is a core form of private, civil law that addresses harms and injuries caused by individuals, corporations or governments (ICGs) to other ICGs. In essence, tort law is the law of accidents and personal injury which inherently encodes and prescribes appropriate types of behaviour and penalizes other behaviours. Tort laws historically were shaped by the courts and have increasingly been reshaped by legislatures, particularly in areas such as automobile accident compensation where damage awards often are limited. In many areas, tort laws have become very effective in promoting improved ICG behaviours. Lawyers believe that tort litigation provides a valuable mechanism of social integration and control, as they are used to deter risky activities and spread out the costs of risk. The importance of tort litigation varies to plaintiffs, defendants, judges, lawyers, insurers, and the public.
For example, prior to 1990s tort law was replete with examples of large torts awards against doctors for alleged negligence during surgical procedures. This encouraged doctors and hospitals to adopt better practices such as checklists to ensure surgical instruments and sponges were removed from the surgical site and not left inadvertently in a patient’s stomach after an operation was concluded.
Harm must be proven on a balance of probabilities, e.g. 50% plus one. It must show there was a duty of care on the part of the defendant or that some expected standard of behaviour or a duty to warn was not provided. Most standards are set through a duty of care, and the duty of care evolves over time. Likewise, the duty to warn has evolved because government regulators have set minimal standards on appropriate types of warnings.
Environmental and toxic torts often have high stakes for victims and huge liability for defendants. Many legal experts would argue that toxic tort lawsuits are a poor way to address health impacts caused by new technology, leading to the question, how can we better regulate risks associated with the technologies we develop and introduce into schools, workplaces, and homes, to prevent future health problems related to wireless technology?
Further challenges with undertaking tort litigation relating to alleged injury caused by toxic substances include:
- Pathways can be hard to identify;
- Dosages can be hard to calibrate;
- Latency periods tend to be long, making diagnosis difficult; and
- Where contractual relationship involved such as an employment or service provision, there is a duty on plaintiffs suffering from the EHS impact to mitigate the harm.
Wireless device manufacturers increasingly are concerned about liability issues related to their products. Many Canadians remain unaware that since the early 2010s cell phone manufacturers such as Apple have advised their smart phone users to not hold their phones within as much as a couple of centimeters from their ears and other parts of their bodies because of the possible cancer risk.[1] This is an explicit – although somewhat minimal and difficult to find – effort by Apple to warn its device users of the risks inherent in its wireless technologies and possibly reduce future liabilities related to anticipated increases in cancer incidences and other health impacts.[2]
Mass toxic torts and class action lawsuits also provide a means of access to justice. For example, the Agent Orange case was the first mass toxic tort allowed to proceed as a class action lawsuit.[3] These types of cases usually consolidate separate (individual) cases and involve a network of law firms and experts who collaborate.
Most courts understand that causation testimony without an EMF/EMR dose assessment is scientifically questionable and inadmissible. Other judges, however, have struggled with the debate between plaintiff and defence experts, and the difficulty of determining how much exposure is enough.[4] Tort lawyers representing government agencies and corporations often argue that low-dose cases should presumably face a major hurdle since scientific evidence usually does not link minimal exposures to disease or injury. In the late 1990s and 2000s lawyers and experts for asbestos plaintiffs addressed this by adopting a unique and controversial form of causation testimony—most widely known as either the every exposure or any exposure theory.[5] The causation theory underlying this approach is that any level of exposure to asbestos should be presumed by the courts to possibly cause illness and even lung cancer.[6]
However, in our current political climate, more and more cases that lawyers and advocates for injured individuals thought were established as legally viable are being rejected. For instance, in November 2018, New York’s highest court issued a decision in an asbestos case that has significant impact beyond asbestos litigation. In the Juni case, the New York Court of Appeals affirmed a 2017 decision tossing out a $11M asbestos verdict related to mesothelioma alleged to have been caused by asbestos found in Ford Motor Company’s brakes, clutches, and gaskets. At first instance, Mrs. Juni, the auto mechanic’s widow, obtained an $11 million jury verdict against the Ford Motor Company. However, on appeal the court ruled that the relied-on expert opinions were deemed insufficient under reliability standards established in prior rulings. Exposure to asbestos was “not enough for a determination of liability against Ford; a causation expert must still establish that the plaintiff was exposed to sufficient levels of the toxin … to have caused his disease.” Even if it is not possible to quantify a plaintiff’s exposure, “causation from exposure to toxins in a defendant’s product must be established through some scientific method ….” Currently, tort liability in wealthy states is growing. New York has a resulting tort liability of $20 billion which is approximately $2,700 per household. New York state has an estimated 177, 000 lawyers, or one for every 112 residents. According to some critics, New York’s litigious environment “is not helping the state’s image” with employers.[7]
Will this climate of concern about low dose litigation cause a backlash against low EMF/EMR dose causation cases? It is impossible to know but certainly some pushback should be expected and factored into strategies employed by lawyers and the experts they retain.
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