FIRSTENBERG V. MONRIBOT, 2015-NMCA-062,
350 P.3d 1205
ARTHUR FIRSTENBERG,
Plaintiff-Appellant/Cross-Appellee,
v.
RAPHAELA MONRIBOT, Defendant-Appellee/Cross-Appellant
and
ROBIN LEITH, Defendant.
COURT OF APPEALS OF NEW MEXICO
2015-NMCA-062, 350 P.3d 1205
APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY, Sarah
M. Singleton, District Judge.
Certiorari Denied, June 3, 2015, No.
35,275. Released for Publication July 7, 2015.
Arthur Firstenberg, Santa Fe, NM, Pro Se
Appellant.
Graeser & McQueen, LLC, Christopher
L. Graeser, Santa Fe, NM, Joseph L. Romero Trial Lawyer LLC, Joseph L. Romero,
Santa Fe, NM, for Appellee.
JONATHAN B. SUTIN, Judge. WE CONCUR:
MICHAEL D. BUSTAMANTE, Judge, CYNTHIA A. FRY, Judge.
AUTHOR: JONATHAN B. SUTIN.
{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.
{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 his theory of general causation, we do not
consider the moot issues, including issues related to the district court’s
early partial summary judgment orders or its denial of Mr. Firstenberg’s
request for a preliminary injunction. Further, because the district court’s
summary judgment order was based upon Mr. Firstenberg’s lack of evidence of
general causation, we limit our discussion to that issue and do not consider
issues related to specific causation.
I. Summary
Judgment on General Causation Grounds Was Proper
{13} “A defendant seeking
summary judgment bears the initial burden of negating at least one of the
essential elements upon which the plaintiff[’s] claims are grounded.”
Snow
v. Warren Power & Mach., Inc.,
2014-NMCA-054, ¶ 5,
326 P.3d 33
(omission, internal quotation marks, and citation omitted),
cert. granted,
2014-NMCERT-005, 326 P.3d 1112. “Once such a showing is made, the burden shifts
to the plaintiff to come forward with admissible evidence to establish each
required element of the claim.”
Id. (internal quotation marks and
citation omitted). Where the defendant negates an essential element of the
plaintiff’s case, and the plaintiff fails to show that admissible evidence
creates an issue of fact regarding that element, summary judgment is
appropriate.
Estate of Haar v. Ulwelling,
2007-NMCA-032, ¶ 10,
141 N.M.
252,
154 P.3d 67. We review the district court’s decision to grant summary
judgment de novo.
Id.
{14} Causation is an
essential element of both nuisance and prima facie tort.
See UJI
13-1631
NMRA (stating the elements of prima facie tort, including that the defendant’s
act or failure to act was a cause of the plaintiff’s harm);
Scott v. Jordan,
1983-NMCA-022, ¶ 12,
99 N.M. 567,
661 P.2d 59 (stating that liability for
private nuisance requires proof that the alleged nuisance is the cause of an
“invasion of another’s interest in the private use and enjoyment of land”
(internal quotation marks and citation omitted)). In a toxic tort case, where
the plaintiff seeks to establish injury as a result of exposure to a harmful
substance, including radiation, the plaintiff is required to prove both general
and specific causation.
See Andrews v. United States Steel Corp.,
2011-NMCA-032, ¶ 9,
149 N.M. 461,
250 P.3d 887 (“[T]o establish cause in a
toxic tort case, the evidence must show both general causation and specific
causation.” (internal quotation marks omitted));
Black’s Law Dictionary
1718 (10th ed. 2014) (defining a “toxic tort” as “[a] civil wrong arising from
exposure to a toxic substance, such as . . . radiation”). “General causation is
whether a substance is capable of causing a particular injury or condition in
the general population and specific causation is whether a substance caused a particular
individual’s injury.”
Andrews,
2011-NMCA-032, ¶ 9 (internal quotation
marks and citation omitted).
{15} In the present case,
where Mr. Firstenberg sought to establish injury, specifically, EMS symptoms,
as a result of exposure to electromagnetic radiation, he was required to prove
both general and specific causation. As noted earlier, the district court
granted summary judgment on the ground that Mr. Firstenberg failed to present
admissible evidence of general causation. Because we affirm the district
court’s summary judgment order on general causation grounds, we need not and
therefore do not address specific causation.
See Farris v. Intel Corp.,
493 F. Supp. 2d 1174, 1180 (D.N.M. 2007) (stating that a “[p]laintiff must
first demonstrate general causation because without general causation, there
can be no specific causation” (internal quotation marks and citation omitted));
Acosta v. Shell W. Exploration & Prod., Inc.,
2013-NMCA-009, ¶¶ 9, 12,
26,
293 P.3d 917 (affirming the district court’s grant of summary judgment
owing to the plaintiff’s failure to produce admissible scientific evidence
showing general causation).
{16} In relevant part, in
their motion to exclude Mr. Firstenberg’s experts, Defendants argued that “EMS
[attributed to electromagnetic radiation] has not been established,” nor has it
“withstood scrutiny in either the scientific or medical communities.” Further,
Defendants argued that Mr. Firstenberg’s proffered experts on the issue of
general causation were not qualified, under Rule
11-702 NMRA, to provide
scientific expert testimony as to the existence of EMS.
{17} In response to
Defendants’ amended motion for summary judgment, Mr. Firstenberg argued, in
relevant part, that because the district court had yet to rule upon Defendants’
motion to exclude his proffered experts, Defendants’ claim that he could not
prove causation was baseless. Also pending at that time was Mr. Firstenberg’s
motion to exclude Dr. Staudenmayer’s testimony on the ground that Dr.
Staudenmayer did not meet the qualifications of an expert witness under Rule
11-702.
{18} Over the course of
three days, the district court held an evidentiary hearing on the issues raised
in Mr. Firstenberg’s and Defendants’ respective motions to exclude expert
witnesses and on Defendants’ amended motion for summary judgment. All three
proposed experts, Drs. Staudenmayer, Elliott, and Singer, testified at the
evidentiary hearing. Following the hearing, the parties filed written
arguments.
{19} Having heard the
testimony and considered the parties’ written arguments, the district court
concluded that the testimony of Drs. Elliott and Singer on the issue of general
causation was inadmissible under the standard set forth in
State v. Alberico,
1993-NMSC-047,
116 N.M. 156,
861 P.2d 192, for evaluating the admissibility of
scientific expert testimony.
See id. ¶ 51 (relying on
Daubert v.
Merrell Dow Pharm., Inc., 509 U.S. 579 (1993), to enumerate some of the
factors that courts should consider in assessing the admissibility of expert
scientific testimony under Rule 11-702). Mr. Firstenberg’s failure to
demonstrate that admissible scientific evidence supported his theory of general
causation led the court to grant summary judgment in Defendants’ favor on the
ground that, in the absence of admissible evidence of general causation, Mr.
Firstenberg could not prevail in his claims of nuisance and prima facie tort.
Additionally, in light of its summary judgment order, the district court
concluded that it was “unnecessary to consider [Mr. Firstenberg’s] motion to
exclude Dr. Staudenmayer.”
{20} Mr. Firstenberg
argues on appeal that the district court made a number of errors in regard to
his and Defendants’ respective proffered experts. We address Mr. Firstenberg’s
arguments in turn but first we discuss our standard of review and the standards
by which the admissibility of expert testimony is to be determined in the
district court.
{21} We review the
district court’s decision to admit or exclude scientific expert testimony under
Rule 11-702 for an abuse of discretion.
Alberico,
1993-NMSC-047, ¶ 58.
The abuse of discretion standard allows the reviewing court to reverse a
district court’s discretionary decision when the decision was “obviously
erroneous, arbitrary, or unwarranted” or where it was “clearly against the
logic and effect of the facts and circumstances before the court.”
Id. ¶
63. The party seeking to admit expert testimony bears the burden of showing
that the expert is qualified, that the expert’s testimony will assist the trier
of fact, and that the expert will “testify only as to scientific, technical[,]
or other specialized knowledge with a reliable basis.” Rule 11-702;
State v.
Anderson,
1994-NMSC-089, ¶ 14,
118 N.M. 284,
881 P.2d 29 (internal
quotation marks and citation omitted);
Parkhill v. Alderman-Cave Milling
& Grain Co. of N.M.,
2010-NMCA-110, ¶ 54,
149 N.M. 140,
245 P.3d 585
(Vigil, J., specially concurring).
{22} In determining
whether scientific evidence has a reliable basis, the district court should
consider:
(1) whether a theory or technique
can be (and has been) tested; (2) whether the theory or technique has been
subjected to peer review and publication; (3) the known potential rate of error
in using a particular scientific technique and the existence and maintenance of
standards controlling the technique’s operation; . . . (4) whether the theory
or technique has been generally accepted in the particular scientific field[;]
. . . [(5)] whether the scientific technique is based upon well-recognized
scientific principle[;] and [(6)] whether it is capable of supporting opinions
based upon reasonable probability rather than conjecture.
Anderson, 1994-NMSC-089, ¶ 15 (internal quotation
marks and citations omitted). Because the foregoing factors were derived from
the United States Supreme Court’s opinion in Daubert and adopted by the
New Mexico Supreme Court in Alberico, New Mexico cases often refer to
them as the “Daubert/Alberico factors.” See Alberico,
1993-NMSC-047, ¶ 51 (relying on Daubert to enumerate some of the factors
that courts should consider in assessing the admissibility of scientific
evidence under Rule 11-702); see, e.g., Loper v. JMAR,
2013-NMCA-098, ¶ 38, 311 P.3d 1184 (referencing the “Daubert-Alberico
factors”). In this Opinion, for ease of reference, we refer simply to the “Alberico
factors.” We turn now to Mr. Firstenberg’s expert witness issues.
Mr. Firstenberg’s Arguments
Regarding Dr. Staudenmayer
{23} On appeal, Mr.
Firstenberg argues that by failing to rule on his motion to exclude Dr.
Staudenmayer’s testimony, which he continues to assert was inadmissible under
Rule 11-702, the court failed to perform its gate-keeping function. We
disagree. Insofar as the purpose of Mr. Firstenberg’s motion to exclude Dr.
Staudenmayer’s testimony was to exclude him from testifying at trial, we agree
with the district court’s ruling that its summary judgment disposition, which
eliminated the possibility of this case going to trial, rendered a ruling on
Mr. Firstenberg’s motion unnecessary.
Mr. Firstenberg’s Arguments
Regarding Drs. Elliott and Singer
{24} Mr. Firstenberg also
argues that the district court erred in excluding the testimony of his
proffered experts on a number of grounds. Namely, he argues that the court
erroneously ruled on the proffered experts’ conclusions, not their
methodologies, and thereby failed to apply the appropriate standard in
evaluating the admissibility of the experts’ testimony; the court’s findings
were “clearly erroneous” insofar as its order contained various typographical
and semantic errors; and the court erred in excluding the testimony of his
treating physician. Additionally, Mr. Firstenberg contends that the district
court failed to review and to understand the ninety-three studies that his
experts relied upon for their conclusions and were admitted as exhibits and
that had the district court familiarized itself with these studies, it would
have permitted his experts to testify regarding EMS. We address these arguments
summarily.
{25} As an initial
matter, we do not consider Mr. Firstenberg’s arguments concerning the district
court’s typographical and semantic errors. To the extent that Mr. Firstenberg
believed that these errors warranted further consideration, pursuant to the
district court’s order he could have timely filed objections to the form of the
court’s order. Having failed to file such objections in the district court, Mr.
Firstenberg has waived the opportunity to challenge the form of the court’s
order.
{26} Mr. Firstenberg’s
remaining arguments, founded upon a litany of errors that he alleges were
committed by the district court in excluding his experts, are unpersuasive. His
arguments in this regard are presented without any attempt to demonstrate that
applying the
Alberico factors to the testimony provided by his experts
leads to a conclusion that their testimony constituted admissible scientific
testimony. We will not do for Mr. Firstenberg what he has failed to do on his
own behalf—that is, search the record in an attempt to demonstrate that his
experts meet the standard of reliability required of expert scientific
testimony pursuant to the
Alberico factors.
See Muse v. Muse,
2009-NMCA-003, ¶ 72,
145 N.M. 451,
200 P.3d 104 (“We will not search the record
for facts, arguments, and rulings in order to support generalized arguments.”).
{27} It was Mr.
Firstenberg’s burden, in the district court, to show that his experts,
including his treating physician, Dr. Elliott, were qualified to present
scientific expert testimony as to the cause of his EMS symptoms.
See
Parkhill,
2010-NMCA-110, ¶ 20 (stating that a treating physician must
be qualified pursuant to the
Alberico factors in order to present
scientific expert testimony as to the external causation of the patient’s
symptoms);
id. ¶ 54 (Vigil, J., specially concurring) (recognizing that
it is the proponent’s burden to demonstrate the admissibility of expert
scientific testimony). The district court, having reviewed the parties’ briefs,
authorities, exhibits, reports, expert affidavits, and testimony, concluded
that Mr. Firstenberg did not meet that burden. Having reviewed the testimony of
Drs. Elliott and Singer, we conclude that the record fully supports the
district court’s conclusion that they were not qualified to present expert
scientific testimony on the issue of general causation. Mr. Firstenberg’s vague
and generalized arguments to the contrary provide no basis for reversal.
See
Muse,
2009-NMCA-003, ¶ 72 (recognizing that an appellant seeking to
establish that the district court abused its discretion must do so by a
discussion of facts, arguments, and rulings that appear in the record).
{28} Finally, Mr.
Firstenberg’s repeated references to the ninety-three studies upon which his
experts relied in forming their conclusions and his argument that the district
court erred by failing to familiarize itself with those studies demonstrate a
misunderstanding of the law. The studies and articles, standing alone, do not
constitute admissible evidence; rather, they constitute inadmissible hearsay.
See
Rule 11-801(A), (C)(2) NMRA; Rule
11-802 NMRA (providing that a written
statement that is offered in evidence to prove the truth of the matter asserted
in the statement constitutes inadmissible hearsay). Therefore, the district
court was under no obligation to independently evaluate the articles and
studies upon which Mr. Firstenberg’s experts relied in reaching their
conclusions.
See Wilde v. Westland Dev. Co.,
2010-NMCA-085, ¶ 28,
148 N.M.
627,
241 P.3d 628 (stating that the district court may not consider
inadmissible hearsay in deciding a summary judgment motion).
{29} Rather, to the
extent that Mr. Firstenberg wished to rely upon the contents of the articles
and studies to demonstrate general causation, it was incumbent upon him to
establish, via his experts, that the articles constituted reliable scientific
authority.
See Baerwald v. Flores,
1997-NMCA-002, ¶ 18,
122 N.M.
679,
930 P.2d 816 (recognizing that an “expert may rely on an article because
it is the expert who determines, based on study and experience, whether the
article is reliable”);
see also Andrews,
2011-NMCA-032, ¶ 9
(recognizing that “general causation is established by demonstrating (usually
by reference to a scientific publication) that exposure to the substance in
question causes (or is capable of causing) disease” (alteration, internal
quotation marks, and citation omitted)). Had Mr. Firstenberg established that
his experts relied on the articles and studies in forming their opinions and
that these items were reliable scientific authority, the content of the
articles and studies may have been admissible pursuant to a hearsay exception.
See
Rule 11-803(18)(b) NMRA (governing the hearsay exception related to statements in
learned treatises, periodicals, or pamphlets). Having failed to demonstrate
through his experts that the studies and articles upon which they relied were
admissible as reliable scientific authority showing causation, Mr. Firstenberg
cannot argue that the district court erred by failing to consider them.
{30} In sum, we conclude
that Mr. Firstenberg has not demonstrated that the district court abused its
discretion in concluding that his proffered experts were not qualified to
present expert scientific testimony on the issue of general causation or in
failing to consider the articles and studies upon which they relied. Having
concluded that Mr. Firstenberg’s arguments regarding the court’s expert witness
rulings provide no basis for reversal, we further conclude that the court
properly granted summary judgment in favor of Defendants as to Mr.
Firstenberg’s nuisance and prima facie tort claims. In light of this holding,
we do not address his contentions of error regarding the court’s denial of a
preliminary injunction, its order granting partial summary judgment on prima
facie tort, and its order granting summary judgment as to nuisance on grounds
other than causation, all of which preceded the court’s summary judgment order.
Consideration of these issues would have no effect on the outcome of this
appeal.
See Stennis v. City of Santa Fe,
2006-NMCA-125, ¶ 28,
140 N.M.
517,
143 P.3d 756 (“[A]n appellate court need not decide an issue that will
have no practical effect on the current litigation[.]”),
rev’d on other
grounds by 2008-NMSC-008,
143 N.M. 320,
176 P.3d 309.
II. Mr.
Firstenberg’s Remaining Arguments
A. Mr.
Firstenberg’s Argument Regarding Federal Preemption
{31} At a hearing on a
motion filed by Ms. Monribot
4
seeking to dismiss Mr. Firstenberg’s complaint on federal preemption grounds,
the district court concluded that to the extent that Mr. Firstenberg’s claims
related to Ms. Monribot’s use of her cell phone, the claims were preempted by
federal law. In so holding, the district court relied on
Murray v. Motorola,
Inc., in which the District of Columbia Court of Appeals held that lawsuits
based on the premise that radio frequency (RF) emissions from cell phones are
harmful to human health are preempted under the doctrine of conflict preemption
because “[s]uch claims conflict with the [Federal Communications Commission
(FCC)] determination that wireless phones that do comply with the FCC’s RF
standards are safe for use by the general public[.]” 982 A.2d 764, 768-69,
777-78 (D.C. 2009) (alteration omitted);
see id. at 772 (recognizing
that conflict preemption precludes laws that “under the circumstances of a
particular case, stand as an obstacle to the accomplishment and execution of
the full purposes and objectives of Congress” (omission, alteration, internal
quotation marks, and citation omitted)).
{32} Mr. Firstenberg
argues that the district court erred in finding federal preemption with respect
to cell phones because, he claims, permitting states to entertain tort law
actions premised on the harmful effects of RF emissions would not stand as an
obstacle to any congressional objectives. In support of his argument, Mr.
Firstenberg cites
Pinney v. Nokia, Inc., 402 F.3d 430, 457 (4th Cir.
2005), for the proposition that the Federal Communications Act provided no
evidence of an objective “of ensuring that all equipment used in connection
with wireless telecommunications be subject to exclusive national RF radiation
standards that have the effect of precluding state regulation on the subject.”
We review this issue de novo.
Humphries v. Pay & Save, Inc.,
2011-NMCA-035, ¶ 6,
150 N.M. 444,
261 P.3d 592 (stating the standard of review
applicable to federal preemption issues).
{33} As was the district
court, we are persuaded by the reasoning in
Murray. The
Murray
court considered and rejected the reasoning in
Pinney because, among
other things, the
Pinney court failed to consider the fact that Congress
had expressly mandated that the FCC “shall prescribe and make effective rules
regarding the environmental effects of [RF] emissions,” a fact that the
Murray
court considered “critical” in considering whether states may permit lawsuits
that are premised on the notion that cell phones cause injury.
Murray,
982 A.2d at 778 n.19, 780-81 (omission, internal quotation marks, and citation
omitted). As the
Murray court explained, in effecting its congressional
mandate, the FCC set limits on the RF emissions for cell phones and other
devices that “provide a proper balance between the need to protect the public
and workers from exposure to excessive RF electromagnetic fields and the need
to allow communications services to readily address growing marketplace
demands.”
Id. at 776 (internal quotation marks and citation omitted). In
order to prevail in a lawsuit based on an alleged injury caused by RF emissions
from cell phones, a jury would have to accept the premise that FCC’s
regulations are inadequate to ensure the safe use of cell phones.
Id. at
781. This would allow cell phone providers to “be held liable even though they
indisputably complied with” FCC regulatory requirements, thereby imposing a
legal duty that would directly conflict with federal mandates.
Id. Such
lawsuits are therefore conflict preempted.
Id.
{34} The
Murray
court’s reasoning persuasively demonstrates that conflict preemption prohibits
states from establishing tort law liability for claimed injuries resulting from
federally permitted cell phone RF emissions. Because the
Pinney court
failed to consider the FCC’s regulatory authority or its established
regulations concerning RF emissions from cell phones, Mr. Firstenberg’s
reliance on that case is not persuasive.
See Murray, 982 A.2d at 778
n.19 (discussing
Pinney). We conclude that the district court
appropriately dismissed Mr. Firstenberg’s claims of injury resulting from Ms.
Monribot’s cell phone usage.
B. Mr.
Firstenberg’s Argument Regarding the Americans With Disabilities Act
{35} Mr. Firstenberg
argues that because the district court entered summary judgment in favor of
Defendants in regard to his nuisance claim and because the district court
dismissed his claims to the extent that they related to Ms. Monribot’s use of
her cell phone, the court violated his constitutional right to equal protection
under the Fourteenth Amendment and the Americans with Disabilities Act (ADA)
5 and “adopted a new legal doctrine
denying access to the courts by a class of individuals.” Further, Mr.
Firstenberg argues that because the court is a public entity, it is subject to
the ADA. Mr. Firstenberg’s argument in this regard boils down to a contention
that by denying the relief requested in his complaint, the district court
violated the ADA and the Fourteenth Amendment. Mr. Firstenberg’s arguments in
this regard are founded on a misunderstanding of the law, and they provide no
basis for reversal.
{36} As an initial
matter, Mr. Firstenberg’s complaint, having failed to allege that Defendants’
conduct amounted to a constitutionally impermissible state action, does not
state an actionable claim for a deprivation of equal protection under the ADA.
See
Manning v. N.M. Energy, Minerals & Natural Res. Dep’t,
2006-NMSC-027,
¶ 45,
140 N.M. 528,
144 P.3d 87 (“The ADA provides [a] remedy . . . when a
state violates the Fourteenth Amendment by depriving an individual of
. . . equal protection[.]”);
Foley v. Horton,
1989-NMSC-061, ¶
8,
108 N.M. 812,
780 P.2d 638 (stating that an equal protection claim requires
the plaintiff to allege or otherwise demonstrate that the at-issue conduct
constituted impermissible state action).
{37} Furthermore, the
district court’s mere adjudication of Mr. Firstenberg’s lawsuit does not
constitute “state action” within the meaning of the Equal Protection Clause.
See
King v. King, 174 P.3d 659, 671 (Wash. 2007) (en banc) (recognizing that a
state court’s “[a]djudication . . . of private rights is not sufficient state
action in the sense necessary to implicate constitutional protections”).
Insofar as the United States Supreme Court in
Shelley v. Kraemer, 334
U.S. 1, 14 (1948), stated a contrary position, the Supreme Court has since
modified its position.
Compare id. (stating that the actions of state
courts and their judicial officers “is to be regarded as [an] action of the
[s]tate within the meaning of the Fourteenth Amendment”),
with Lugar
v. Edmondson Oil Co., 457 U.S. 922, 928, 937, 939 n.21 (1982) (recognizing
that “the party charged with the deprivation [of a federal right] must be a
person who may fairly be said to be a state actor” and rejecting the notion
“that a private party’s mere invocation of state legal procedures” satisfies
the state-actor requirement (internal quotation marks and citation omitted)).
See
King, 174 P.3d at 671 (recognizing that “the United States Supreme Court
has . . . pulled back the reach of
Shelley, if not overruling
it sub silentio, by requiring something more than the reliance on a
. . . judicial proceeding” (internal quotation marks omitted)).
{38} In sum, we reject
the notion that Mr. Firstenberg’s lawsuit against two private individuals was
somehow transformed, by virtue of the district court’s adjudication of the
matter, into an equal protection lawsuit under the ADA. We will not consider
this issue further.
III. Summary
Regarding Mr. Firstenberg’s Appeal
{39} In sum, regarding
Mr. Firstenberg’s appeal, we conclude that the district court did not err in
granting summary judgment in Defendants’ favor on the ground that Mr.
Firstenberg failed to demonstrate that admissible scientific evidence supported
his theory of general causation, that is, that electromagnetic fields are
capable of causing the types of harm from which he suffers. Because we conclude
that Mr. Firstenberg has not demonstrated reversible error on that or any other
ground, we affirm the district court’s summary judgment. We turn now to the
issues raised by Ms. Monribot in her cross-appeal.
IV. Ms.
Monribot’s Cross-Appeal
{40} In her cross-appeal,
Ms. Monribot raises four contentions of error, of which we address only two.
Ms. Monribot argues that the district court erred in failing to dismiss Mr.
Firstenberg’s complaint in its entirety on the ground that federal preemption
barred Mr. Firstenberg’s claims of injury resulting from any of her electronic
devices. She argues, further, that the district court erred in denying, in
part, Defendants’ amended motion for partial summary judgment on Mr.
Firstenberg’s prima facie tort claim. Having affirmed, on direct appeal, the
district court’s summary judgment as to all of Mr. Firstenberg’s claims, the
foregoing cross-appeal arguments are moot, and we do not address them.
See
Crutchfield v. Dep’t of Taxation & Revenue,
2005-NMCA-022, ¶ 36,
137
N.M. 26,
106 P.3d 1273 (“A reviewing court generally does not decide academic
or moot questions.”).
{41} Additionally, Ms.
Monribot argues that the district court erred in finding that Mr. Firstenberg
had an implied easement by necessity to access the electrical meter on
Defendants’ property. Finally, she argues that the district court erred in
denying Defendants’ motion to recover costs. We address each of these arguments
in turn.
{42} The electric meter
and switch that provided electricity to Mr. Firstenberg’s house were located on
the exterior wall of Defendants’ house. In response to Ms. Monribot’s
counterclaims by which she sought to exclude Mr. Firstenberg from using
Defendants’ property to access his electric meter and switch and to force him
to remove his electrical meter and switch from the property, Mr. Firstenberg
filed a motion for summary judgment on the ground that, in relevant part, he
had an implied easement by necessity that permitted the location of and his
access to the electrical meter and switch.
{43} The district court
granted Mr. Firstenberg’s partial summary judgment motion. In its summary
judgment order, the court stated that Mr. Firstenberg had an implied easement
by necessity to access his electric meter on Defendants’ property that “permits
all reasonable uses, including but not necessarily limited to turning on and
off the electrical switch, accessing the meter, [and] access for maintaining
and repairing this switch[.]” The court further stated that Mr. Firstenberg’s
right of access “does not permit abusive use of the easement” for which “the
Landowner” (Ms. Leith) would have “all remedies afforded by law for the
over-burdening [of] the [servient] estate.”
{44} Ms. Monribot
contends that the court erred in determining that Mr. Firstenberg had an
implied easement by necessity. “We review de novo legal questions arising from
a district court’s application of law to the facts involving the existence of
an easement.”
Los Vigiles Land Grant v. Rebar Haygood Ranch, LLC,
2014-NMCA-017, ¶ 25,
317 P.3d 842. Likewise, we review de novo the district
court’s decision to grant summary judgment.
Estate of Haar,
2007-NMCA-032, ¶ 10.
{45} In considering the
nature of implied easements by necessity, New Mexico courts rely on the
Restatement (Third) of Property: Servitudes § 2.15 (2000).
Kysar v. Amoco
Prod. Co.,
2004-NMSC-025, ¶ 25,
135 N.M. 767,
93 P.3d 1272 (relying on the
Restatement (Third) of Property § 2.15 to discern the nature of an implied
easement by necessity). According to the Restatement, an implied easement by
necessity arises out of “[a] conveyance that would otherwise deprive the land
conveyed to the grantee . . . of rights necessary to reasonable enjoyment of
the land . . . unless the language or circumstances of the conveyance clearly
indicate that the parties intended to deprive the property of those rights.”
Restatement (Third) of Property § 2.15. The phrase “[r]ights necessary to
reasonable enjoyment of property” is not limited to access rights; it applies
to “whatever is reasonably necessary for the enjoyment of property, if the
conveyance would otherwise eliminate the property owner’s right to do those
things.”
Id. cmt. b. This includes the delivery of electricity.
Id.
cmt. d. To find an implied easement by necessity, the necessity must have
arisen as a result of a severance of rights held by a single owner, for
example, where a single parcel of land is divided into two parcels.
Id.
cmt. c. “The easement by necessity rests . . . heavily upon the intent of the”
grantor, and unless there is “a clear indication to the contrary, the grantor
is presumed to have intended to have . . . conveyed to his grantees, a means of
access to the property in question, so that the land may be beneficially
utilized.”
Los Vigiles Land Grant,
2014-NMCA-017, ¶ 28 (alteration,
internal quotation marks, and citations omitted).
{46} In support of his
summary judgment motion, Mr. Firstenberg provided, among other things, an
affidavit of Yolette Catanach, the former owner of Defendants’ and Mr.
Firstenberg’s properties. Ms. Catanach stated that the two properties
originally constituted a single lot upon which two houses (now occupied by Mr.
Firstenberg and Ms. Monribot) were located. When Ms. Catanach purchased the
lot, both houses were served by a single overhead power line, with the electric
meters and switches for both houses attached to the house now occupied by Ms.
Monribot. In 1991 Ms. Catanach and her husband split the single lot into two
lots, and in so doing, they granted an express easement “as shown and for all
existing utilities[.]” Ms. Catanach’s affidavit attached, as an exhibit, the
deed that indicated the parameters of the express easement. The express
easement did not refer to or include the electric meter or switch for the house
now occupied by Mr. Firstenberg; however, Ms. Catanach stated that at the time
the lot was split, she and her husband intended that the location of and access
to the switch and the meter would continue unchanged and unimpaired.
Additionally, Mr. Firstenberg stated in an affidavit that there was no electric
utility pole on his street from which he could receive electricity service.
{47} Based on the
foregoing facts, we conclude that Mr. Firstenberg made a prima facie showing
that he had an implied easement by necessity for the transmission of
electricity and for access to the switch and meter attached to Defendants’
property that entitled him to summary judgment as to Ms. Monribot’s
counterclaims. To counter Mr. Firstenberg’s prima facie showing, Ms. Monribot
was required to demonstrate that disputed issues of material fact precluded
summary judgment.
See Spencer v. Health Force, Inc.,
2005-NMSC-002, ¶ 7,
137 N.M. 64,
107 P.3d 504 (stating that once a movant for summary judgment
makes a prima facie showing that summary judgment is appropriate as a matter of
law, the burden shifts to the opponent to show at least a reasonable doubt as
to the existence of a genuine issue of fact).
{48} In response to Mr.
Firstenberg’s summary judgment motion, Ms. Monribot argued, in relevant part,
as admitted to by Mr. Firstenberg, that because he could have an electric
utility pole installed on his street and have his electric meter and switch
relocated to his own property, Mr. Firstenberg failed to establish the
requisite element of “necessity” for an implied easement by necessity. Ms.
Monribot reiterates this argument on appeal, claiming that the question whether
it would be unreasonable for Mr. Firstenberg to access utilities through his
own street was an issue of fact that should have precluded summary judgment. We
disagree.
{49} Ms. Monribot’s
argument evokes the notion of strict, instead of reasonable, necessity. Under
the strict necessity test, where “any alternative was available to an easement
claimant, no easement would be found.”
Martinez v. Martinez,
1979-NMSC-104, ¶ 29,
93 N.M. 673,
604 P.2d 366. This state does not follow the
strict necessity test; rather, “[t]he test of necessity in New Mexico is
whether the party claiming the easement could, through the reasonable
expenditure of labor or money, create an alternative [to the easement] on his
own estate.”
Id.
{50} The only evidence in
the record pertaining to the cost of installing a utility pole on Mr.
Firstenberg’s property and relocating his meter and switch was Mr.
Firstenberg’s statement that the cost of doing so would not be reasonable,
specifically, that it would be “in excess of $12,000.” Ms. Monribot failed to
provide any evidence to refute that cost, nor did she attempt to show that the
cost was reasonable, for example, by providing evidence of the relative values of
the properties or the effect, if any, of the easement on those values.
See
Jackson v. Nash, 866 P.2d 262, 269-70 (Nev. 1993) (stating that in
determining whether the expense of creating an alternative to an easement is
reasonable, the court may consider the cost of creating the alternative as
compared with the values of the servient and the dominant estates and the
extent to which the easement will affect their respective values).
{51} Implicit in the
district court’s determination that Mr. Firstenberg had an implied easement by
necessity was its conclusion that the cost of creating a substitute source of
electricity was not reasonable under these circumstances and that reasonable
minds would not differ as to that issue.
See Beggs v. City of Portales,
2013-NMCA-068, ¶ 11,
305 P.3d 75 (stating that summary judgment is
appropriate “[w]here reasonable minds will not differ as to an issue of
material fact” (internal quotation marks and citation omitted)). Ms. Monribot,
having failed to present evidence that would support a contrary conclusion to
Mr. Firstenberg’s summary judgment motion, has therefore failed to raise an
issue of material fact in that regard.
{52} Ms. Monribot further
argues that the district court relied on inadmissible parol evidence in granting
summary judgment.
See Amethyst Land Co. v. Terhune,
2014-NMSC-015, ¶ 24,
326 P.3d 12 (stating that parol evidence is inadmissible to the extent that it
varies “or explain[s] the terms or contradict[s] the legal effect of an
unambiguous written instrument” (internal quotation marks and citation
omitted)). Specifically, Ms. Monribot argues that the district court relied on
Ms. Catanach’s affidavit to conclude that the electrical meter and switch
serving Mr. Firstenberg’s property “was really part of the declared utility
easement[.]” The district court’s legal conclusion that Mr. Firstenberg had an
implied easement by necessity is an obvious indication that the court did not
conclude that the express easement encompassed the electrical meter and switch.
Ms. Monribot’s argument is, therefore, unavailing.
{53} For the foregoing
reasons, we affirm the district court’s grant of summary judgment in favor of
Mr. Firstenberg on the ground of an implied easement by necessity, which
permits his reasonable, non-abusive use of the easement for the purpose of
accessing his electrical meter and switch.
{54} Pursuant to Rule
1-054(D)(1) NMRA, “costs . . . shall be allowed to the prevailing party unless
the court otherwise directs[.]” Rule 1-054 vests the district court with wide
discretion in determining whether to award costs.
Martinez v. Martinez,
1997-NMCA-096, ¶ 20,
123 N.M. 816,
945 P.2d 1034. Ms. Monribot argues that
because Defendants prevailed on summary judgment, they were entitled to recover
their costs totaling $84,857.60 and that the district court erred in refusing
to award that sum. “[W]e review the trial court’s order granting or denying an
award of costs for abuse of discretion.”
Id. ¶ 17.
{55} At a hearing on
Defendants’ motion to recover costs, the district court ruled that a number of
the costs Defendants sought to recover were not recoverable.
See Rule
1-054(D)(2) (enumerating the costs that “generally are recoverable”). The
district court denied Defendants’ remaining costs on equitable grounds,
including Mr. Firstenberg’s inability to pay and the disparity of income
between him and Ms. Leith’s insurance company, which had paid for nearly all of
Defendants’ costs.
{56} On appeal, Ms.
Monribot does not specifically identify the costs to which her claims of error
are directed, nor does she persuasively demonstrate why, based on the record in
this case, the court’s discretionary decision to deny Defendants’ costs was
“contrary to logic or reason.”
Marshall v. Providence Wash. Ins. Co.,
1997-NMCA-121, ¶ 28,
124 N.M. 381,
951 P.2d 76 (stating that in order to
demonstrate that the district court abused its discretion in awarding costs,
the appellant must demonstrate that the “court’s ruling [was] contrary to logic
or reason”). Rather, Ms. Monribot’s argument regarding costs is comprised of a
series of quotations from various authorities with no coherent attempt to
demonstrate how those authorities relate to the circumstances of this case or
why reversal is warranted. We will not attempt to decipher this unclear
argument.
See Elane Photography, LLC v. Willock,
2013-NMSC-040, ¶ 70,
309 P.3d 53 (stating that an appellate court “will not review unclear
arguments[] or guess at what a party’s arguments might be” (alteration,
internal quotation marks, and citation omitted)).
{57} In exercising its
discretion to deny or to award costs under Rule 1-054(D), the district court is
permitted to disallow costs based upon equitable grounds, including a losing
party’s inability to pay.
See Martinez,
1997-NMCA-096, ¶ 20 (stating
that equitable considerations are appropriate in determining whether to award
costs);
Gallegos ex rel. Gallegos v. Sw. Cmty. Health Servs.,
1994-NMCA-037, ¶ 30,
117 N.M. 481,
872 P.2d 899 (“[T]he losing party’s
ability to pay is a proper factor to consider in determining whether to award
costs.”). Further, in reviewing an issue on appeal, this Court presumes that
“the district court is correct and . . . the burden is on the appellant to
clearly demonstrate the district court’s error.”
Wilde,
2010-NMCA-085, ¶
30 (internal quotation marks and citation omitted). Because Ms. Monribot has
failed to demonstrate error as to costs, we cannot say that the district court
abused its discretion in that regard, and therefore, her argument provides no
basis for reversal.
{58} We affirm the
district court’s summary judgment in favor of Defendants as to Mr.
Firstenberg’s claims of prima facie tort and nuisance. We affirm the district
court’s summary judgment in favor of Mr. Firstenberg as to Ms. Monribot’s
counterclaims. And we affirm the district court’s decision to deny Defendants’
motion for costs. As to the remaining issues raised by either party, we
conclude that they do not require reversal.
MICHAEL D. BUSTAMANTE, Judge