Fay School seeks dismissal of retaliation counts in WiFi sickness case
by Scott O’Connell, Telegram & Gazette Staff, 30 April 2018
WORCESTER – The attorney for the Fay School in Southboro on Monday asked a federal judge to dismiss the remaining counts brought against her client by a former student who claims the school’s wireless Internet sickened him.
In September, U.S. District Judge Timothy S. Hillman dismissed most of the case against the private day and boarding school, ruling the plaintiffs – the student, identified as “G,” and his parents – hadn’t proven it was the school’s WiFi that was making the boy ill. But he did allow two retaliation claims against Fay to continue, which the school is now seeking to have dismissed as well.
“We believe very strongly this is essentially game over,” the school’s attorney, Sara Schwartz, said at Monday’s motion hearing in U.S. District Court. “We don’t believe there’s any case or controversy left.”
Ms. Schwartz argued the two remaining retaliation claims, which allege Fay prevented G from participating in after-school sports because of his WiFi complaints and excluded his brother from his graduation program, were only seeking injunctive relief, not damages. Considering time has long since passed for an injunction to have any effect on either alleged instance of retaliation, she said, “there’s nothing left that Fay can do.”
John Markham, the attorney representing G and his parents, meanwhile, has filed a motion for the judge to reconsider his dismissal of the other counts against the school, which included breach of contract, misrepresentation and negligence. Mr. Markham argued that ruling was not so much a misapplication of the law but a “misapprehension of the facts,” including the significance of Fay’s handbook as a contract between G and the school, which the school has therefore broken through its alleged poor treatment of G in response to his and his families claims about the campus’s WiFi.
After Monday’s hearing on each side’s motion, Judge Hillman is set to deliver his decision in the case. Should the retaliation counts not be tossed, the case would remain on track to proceed to trial.
Originally brought in August of 2015, the lawsuit against Fay rests on the supposed existence of a controversial disorder known as Electromagnetic Hypersensitivity Syndrome, which G purports to suffer from. EHS allegedly can cause adverse physical effects like nausea and skin irritation when the sufferer is exposed to electromagnetic radiation like WiFi, but it is not an officially recognized diagnosis in medicine.
The dispute between G and his family and the Fay School stems from the former’s claims that the school refused to make accommodations to alleviate G’s symptoms, such as turning down the WiFi signal in his classroom or switching to Ethernet-based internet. G has since unenrolled at the school and is now a freshman at St. John’s High School in Shrewsbury, according to the family’s lawyer.
Mr. Markham said G and his parents still want the boy to go back to Fay, where the family has already invested $400,000 for their sons’ education, as long as the school “reasonably cooperates” with them. The family is hopeful, he added, that a ruling in their favor will make the school provide better accommodations for G and prevent any further retaliation against him and his parents.
According to Ms. Schwartz, however, a return to the school would be “nonsensical,” given that the school’s ninth-grade year is really a capstone year at Fay’s middle school; essentially G would be going backwards in his schooling, she argued – “it’s never been done.”
She also cited a recently filed affidavit that reported G’s condition has been better at St. John’s, which allegedly has made efforts to reduce his exposure to WiFi, although Mr. Markham said more recently G has had some reccurrence of his symptoms there.