Is the Appellate Court ruling misinterpreted?
Opinion 1: California Appellate Court DID NOT rule about Electromagnetic Hypersensitivity (EHS) as a disability.
The case is far from over, and nothing’s been proven yet.
As Judge Wiley who concurred on the ruling stated:
“I worry about giving any sort of green light to this unprecedented and unorthodox disability claim. Plaintiff’s counsel was most reluctant at oral argument to admit it, but it seems clear we are the first court in the United States of America—a nation of over 300 million people—to allow a claim that ‘Wi-Fi can make you sick.’ ”
Input of a lawyer:
“I have read this Appellate decision several times and I don’t believe it says what is being reported that it says. I think that people are over-reading the words of the Court. In reversing the demurrer, the Court said: “Brown adequately pled physical disability within the four corners of the statute.” They specifically say ‘physical disability’ and the Court’s discussion indicates it was immaterial what caused the disability. And nowhere in the decision does it say that the disability was caused by electromagnetic fields or is triggered by electromagnetic fields. So, the conclusion that the Court found that EHS is a disability under the act is a stretch. The court said she adequately showed that she was impaired.”
The superior court must now hear the case and determine the appropriate accommodations that LAUSD needs to adopt to address the plaintiff’s physical disabilities. One of the Appellate jurists recommended that the superior court employ an expert witness to help make these determinations.
Input of an attorney:
It’s true that the case is not over. The plaintiff must still prove what she alleges in her complaint.
But as Justice Wiley’s concurrence states, the court’s holding greenlights disability claims where the alleged disability is electromagnetic hypersensitivity. The defendant argued that even if what the plaintiff alleges in the complaint is true, the plaintiff does not have a disability within the meaning of the disability protection law. The appellate court’s ruling means that it will be for the jury to decide, so long as the plaintiff can offer evidence supporting her factual allegations, including about her electromagnetic hypersensitivity.
Based on my reading of the decision, I disagree with the suggestion that the cause of the disability is irrelevant under the court’s decision here and going forward in the case. She alleged that her disability is electromagnetic hypersensitivity. So when the court ruled that she adequately alleged a disability, it is approving that condition as a recognized disability under the statute.
What makes this case significant news, in my opinion, is not what will happen with Ms. Brown’s case. That remains to be seen. The significance lies in the ruling’s ramifications on other cases. The ruling is binding precedent for other cases in the California trial courts. Justice Wiley’s concurrence hints at one practical ramification: settlement value. Before this ruling, a plaintiff alleging a similar claim faced daunting hurdle of no American court previously holding that electromagnetic hypersensitivity qualifies as a disability under disability protection laws. That hurdle is no more (assuming this ruling remains good law), which changes settlement value of similar claims significantly.
Note: these views are based on different readings of the ruling, and is not legal advice.