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EMF Studies

29 November 2015

Electromagnetic Hypersensitivity (EHS): Fad Allergy, Debilitating Disease, or What?

"If EHS becomes as prevalent as “gluten sensitivity,” we can expect more EHS sufferers to ask courts to fashion them a remedy. Unlike bread and pasta for the gluten-obsessed, EMF is not something a person can easily avoid. Americans are exposed to EMF on a daily basis, from the likes of garage door openers, cell phones, cordless phones, laptops, tablets, to Wi-Fi routers in their homes, supermarkets, malls and places of work. Radio frequency energy is literally everywhere. While there is no science to support the causation hypothesis, people who believe they have EHS really believe they have a legitimate sensitivity, and many have demonstrable symptoms that are not frivolous. That makes for motivated litigants, which means the courts will probably see more of these cases in the future. But for courts to decide that EHS is something more than a fad allergy, or a psychological manifestation arising from the nocebo effect, they will need controlled scientific studies supporting the case..."

Electromagnetic Hypersensitivity (EHS): Fad Allergy, Debilitating Disease, or What?
The National Law Review, 15 October 2015

Less than 1% of the population suffers from the serious gluten allergy known as celiac disease. Yet every time this writer goes out to dinner at least one dining companion passes on bread and pasta, claiming a self-diagnosed “gluten sensitivity” that manifests as a collection of nondescript symptoms, the major one being “fatigue.” The odd thing is that our obsession with gluten – present in a staple food for millennia – has only recently become the bad actor in all sorts of physical and mental maladies in celiac-free individuals.

Like “gluten sensitivity,” electromagnetic hypersensitivity (or “EHS” – sensitivity to radio waves from Wi-Fi routers, cell phones and similar products) is an “allergy” that has recently gotten more mainstream media attention and is also “characterized by a range of non-specific symptoms.” The Access Board, which is the federal agency responsible for promulgating accessibility guidelines under the Americans with Disabilities Act, has recognized that “electromagnetic sensitivities may be considered disabilities under the ADA.” In August 2015, the parents of a 12-year-old boy filed suit against the boy’s private school, claiming it violated the ADA by refusing to accommodate their son’s EHS. The parents wanted the school to go back to ethernet cables or to turn down the Wi-Fi signal – which was already 1/10,000th of the applicable safety limit. Of course, that would have no effect on their son’s exposure to electromagnetic waves from friends’ and strangers’ use of cell phones in his proximity on a school bus, at a restaurant, or just walking down the street.

According to the WHO, “there is no scientific basis to link EHS symptoms to EMF [electromagnetic frequency] exposure.” In their article, Allergic to Technology: Ethics and the “Electrically Hypersensitive” Individual, Dr. Kenneth R. Foster and Dr. G. James Rubin write that “[a]fter many years of research, no reliable and reproducible link has been established between the symptoms of IEI-IMF [Idiopathic Environmental Intolerance Attributed to Electromagnetic Fields] individuals and exposure to EMF (of whatever description) in their environment, and consequently an explanation in terms of EMF exposure is untenable.” Allergic to Technology: Ethics and the “Electrically Hypersensitive” Individual, Ethics in Biology, Engineering & Medicine – An International Journal, 5(1): 39-50 (2014), at 42-3. The majority of the provocation studies on the topic show that EHS individuals cannot detect electromagnetic frequency any better than symptom-free subjects. In short, controlled studies show that EHS symptoms appear to be associated with whether a person believes that he or she is being exposed, rather than any actual exposure. This is referred to in the medical community as the “nocebo effect,” where an individual suffers a legitimate adverse effect from a totally inert exposure. The effects might be real but the cause of the effects isn’t the exposure itself—it’s the expectation of the individual that the exposure is dangerous.

“there is no scientific basis to link EHS symptoms to EMF exposure.”

Courts have recognized this apparently psychosomatic syndrome to varying degrees. In September 2015, a French court awarded $900/month in disability to a 39-year-old woman who claims her EHS prevents her from working (or even participating in the modern world). The woman, a former radio documentary producer, has been living in a house without running water or electricity in the mountains of south-west France in order to alleviate her EHS. She heralded the court’s decision as a major breakthrough, but according to the Guardian, the court “stopped short of recognizing EHS as an illness.”

Similarly, an Australian court granted workers compensation rights to a man who claimed he could no longer work as a result of his EHS, and Sweden recognizes the syndrome as a “functional impairment.”

Other courts have been less sympathetic. In March 2015, the New Mexico Court of Appeals affirmed the lower court’s ruling that there was no scientific basis for the plaintiff’s claim that his neighbor’s use of Wi-Fi and other electronic devices caused him to become ill. Likewise, in April, the Israeli Supreme Court rejected a lawsuit to ban the use of Wi-Fi in schools.

Unlike bread and pasta for the gluten-obsessed, EMF is not something a person can easily avoid.

The upshot of court rulings to date is that while some courts will overlook the lack of scientific evidence that EHS is caused by exposure to EMF in the context of government benefits, they have not been so accommodating where another individual’s (or company’s) rights would be adversely affected by a ruling in favor of an EHS plaintiff.

If EHS becomes as prevalent as “gluten sensitivity,” we can expect more EHS sufferers to ask courts to fashion them a remedy. Unlike bread and pasta for the gluten-obsessed, EMF is not something a person can easily avoid. Americans are exposed to EMF on a daily basis, from the likes of garage door openers, cell phones, cordless phones, laptops, tablets, to Wi-Fi routers in their homes, supermarkets, malls and places of work. Radio frequency energy is literally everywhere. While there is no science to support the causation hypothesis, people who believe they have EHS really believe they have a legitimate sensitivity, and many have demonstrable symptoms that are not frivolous. That makes for motivated litigants, which means the courts will probably see more of these cases in the future. But for courts to decide that EHS is something more than a fad allergy, or a psychological manifestation arising from the nocebo effect, they will need controlled scientific studies supporting the case—studies that at the moment do not exist.

Paul A. Scrudato
Partner

Paul A. Scrudato has been a member of Schiff Hardin's Executive Committee since 2015. He has tried numerous successful cases in the New York state and federal courts, and has also been lead trial counsel in federal and state actions in Illinois, Wisconsin, Maryland, Texas, Kentucky, Pennsylvania, and Indiana. Mr. Scrudato focuses his practice in complex litigation, with particular emphasis in product liability and government investigations. He serves as national trial counsel to multiple companies with high-profile litigation and trial exposure, and he has extensive...
pscrudato@schiffhardin.com

212.745.0833
www.schiffhardin.com


Katia Asche
Associate

As a first-year associate, Katia Asche is working in several practice areas to learn and gain experience before she chooses a practice group.

Prior to joining Schiff Hardin, Katia was a judicial intern for the Honorable Harold Baer, Jr. in the U.S. District Court for the Southern District of New York. In addition, she was an Appellate Fellow at the Center for Appellate Litigation in New York, where she performed criminal defense work at the appellate level. She also gained valuable experience as a Schiff Hardin summer associate.
kasche@schiffhardin.com
212.745.9550
www.schiffhardin.com


http://www.natlawreview.com/article/electromagnetic-hypersensitivity-ehs-fad-allergy-debilitating-disease-or-what

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