SGU Episode 364: Difference between revisions
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* [http://www.sciencebasedhealthcare.org Campaign for Science-Based Healthcare] | * [http://www.sciencebasedhealthcare.org Campaign for Science-Based Healthcare] | ||
* [mailto:jbellamy@sciencebasedhealthcare.org jbellamy@sciencebasedhealthcare.org] | * [mailto:jbellamy@sciencebasedhealthcare.org jbellamy@sciencebasedhealthcare.org] | ||
* http://www.wweek.com/portland/article-19350-wireless_waste.html | * [http://www.wweek.com/portland/article-19350-wireless_waste.html Wireless Waste: Portland schools have had to spend $172,000 fighting a parent's lawsuit over Wi-Fi] | ||
S: We are joined now by Jann Bellamy. Jann, welcome to the Skeptics' Guide. | |||
JB: Thanks, it's nice to be here. | |||
S: And Jann is one of my fellow founding fellows of the Institute for Science and Medicine and also blogs for us over at Science-based Medicine, and she's the founder and president of Science-based Healthcare, a Florida non-profit whose mission is to promote science and health care. And you're a practicing attorney, and we asked you to come on the show today to discuss an interesting case that has a lot of legal aspect to it and, as some of our readers are fond of pointing out, none of us are lawyers. And so we don't really know what we're talking about. So, I thought it would be a good idea to get an actual lawyer on the show to give us the skinny. So, the case involves a family who was suing a school system over alleged damage from Wi-Fi in the school system. Could you tell us about – just summarize the case for us? | |||
JB: Sure. The plaintiffs are a father and his daughter; the daughter is a middle-school student out in Oregon. They claim that there is scientific evidence that Wi-Fi causes various harms to adults, and that the daughter is suffering physical damage because of this, although she doesn't have any real symptoms that have shown up, but in any event, they're saying that the school board should be enjoined from using Wi-Fi. | |||
S: Are they suing for damages as well as trying to stop them from having Wi-Fi in the school? | |||
JB: No, no damages; just an injunction. | |||
S: So is this based on just theoretical risk from Wi-Fi; they're not actually claiming actual damage has occurred? | |||
JB: Right. Well, they do claim that damage is ongoing to her body, but there's nothing that has shown up that they can point to. They say that Wi-Fi is inherently damaging. | |||
S: OK, just that it's damaging, not that there's any evidence or symptoms or signs that damage has occurred in this case. | |||
JB: No, there are not. | |||
S: OK, so it's really just all hypothetical. | |||
JB: Exactly. | |||
S: So then, of course, that's what the case can focus on: just the question, "does Wi-Fi cause damage". | |||
JB: Right. Well, there's some other issues, jurisdictional issues, but that the battle of the experts that's going on in the case right now. Both sides have moved for what's called summary judgment, saying that there are no real questions of fact and they are entitled to win as a matter of law, and they're also both trying to exclude the other's experts under Daubert<ref>[http://en.wikipedia.org/wiki/Daubert_standard Wikipedia: Daubert standard]</ref>. | |||
S: Could you explain Daubert for a little background for our listeners? | |||
JB: Sure. Daubert is a division of the U.S. Supreme Court which interpreted the federal rules of evidence to require certain basic elements before an opinion of an expert could be admitted into testimony, and the judge acts as a gatekeeper to keep out so-called "junk science" from getting before the jury. And the question is, "is the evidence that the expert wants to testify to, is it reliable and is it relevant?". And reliability looks to whether the reasoning or methodology underlying the testimony is scientifically valid. In other words, it's the same sort of thing a scientist would look to to see if he or she would think that this particular theory is valid. And relevance just asks whether that reasoning or methodology can be applied to the facts of the particular case. | |||
S: So essentially, the question is, "is the expert a legitimate scientific expert, and is their expertise relative to the questions they're going to be addressing?". | |||
JB: Relevant. Yes. That's true, and the expert has to be qualified appropriately to testify. | |||
S: Right. So I mean, it seems like a pretty reasonable rule, and that it could effectively keep rank pseudoscientists out of the courtroom. Does it, in practice, work that way? | |||
JB: It's an imperfect system, and I think one of the biggest issues is that judges and juries aren't scientists. And it's extremely hard for the layperson, and I can testify to this myself, to understand even basic science principles sometimes. And so, it is sometimes an uphill struggle to educate the judge on the underlying science, whatever's at issue in your case. | |||
S: Yeah, so essentially, we're – you're gathering scientists to explain sometimes complicated science to a judge and maybe a jury who are likely to be laypeople and not be scientific experts themselves. | |||
JB: Right; they almost always are laypeople, and... First you have to convince the judge to keep the evidence out altogether, but then if he rules against you on that issue, then you're going to have the task of explaining the science to the jury. | |||
S: So in this particular case, both sides are still – it sounds like it's probably standard procedure; you put in a motion for summary judgment, right? Both sides are usually going to do that in a case like this? | |||
JB: Well, you would certainly attack the other side's scientific quote-unquote "experts" with a motion to keep their testimony out; that's a separate motion than the motion for summary judgment. They just happened to be filed at the same time in this case because the defendents have other grounds on which they're trying to defeat this claim. | |||
S: And what's that, so other than just saying "the science says there's no physical danger from Wi-Fi", what are the other grounds? | |||
JB: Well, the main argument is that the Portland school system is well within the [http://en.wikipedia.org/wiki/Federal_Communications_Commission FCC]'s guidelines on Wi-Fi and they say the plaintiffs are essentially trying to argue with the FCC guidelines and they should take that up with the FCC, not the court. | |||
S: I see. That sounds like a good argument. | |||
JB: It does; I think they have a good chance on that argument. And that would avoid the whole argument on experts; you wouldn't even get to the facts of the case. | |||
S: Right. Right, right. It would say, "The FCC's already decided that." So that's almost like a jurisdictional issue then, is that correct? | |||
JB: It is exactly that. | |||
S: OK. I see. | |||
J: Do you think – do you think the judge will decide that &nash; you have to take it up with the FCC and just end this whole thing, or do you think that's likely at this point, or you think that's a long shot? | |||
JB: I don't know what the judge'll do; I'm hesitant to speculate on that. I think they do have a good argument that this is something that the plaintiffs need to take up with the FCC and they might well win on that, and that would make the case basically go away. | |||
S: Another issue that this case has raised, and this has been the subject of a lot of the reporting on it, is that the school system has already spent $172,000 of taxpayer money – that's in the education budget, I assume – to defend against this lawsuit, which to me, seems to be like a frivolous pseudoscientific case. | |||
JB: Right. | |||
S: Is there any way to keep this kind of thing from happening; to keep limited taxpayer resources or education funds or – may not always be a school that's being sued – from being wasted by people who are raising lawsuits that are essentially based entirely on pseudoscience? | |||
JB: Well, there's not a lot you can do up front; you can of course purchase liability insurance and I think it's a good idea to defend these suits vigorously and send out the message that you're gonna roll over. There is something you can do after the fact, and that is move for attorney's fees and costs based on an allegation that the suit was frivolous or malicious or without basis in fact and sometimes those motions are granted and it ends up costing the plaintiff a lot of money. And that sends a message. | |||
S: Does that happen often? | |||
JB: It's very hard for a defendant in a case like this to show that the suit was absolutely frivolous, no basis in fact; in fact, one of the problems is that these quote-unquote "experts" can throw out enough junk that makes it seem like, you know, there may be something there. | |||
S: They can create just enough doubt that it would be hard to say that this was an entirely baseless suit, even if the judge was against the plaintiff. | |||
JB: Right, and judges are reluctant to impose that kind of penalty on plaintiffs. | |||
S: Yeah, and in this case, this is just a private citizen who's probably unlikely to have a couple hundred thousand dollars laying around that they could use to pay the school system's legal fees. | |||
JB: Although, he is paying his attorneys, I assume, and some costs, so I don't know who is funding this suit, if he has the money to do that. Interestingly, most, and perhaps all, of his six experts are not charging any fees; it's pretty clear that they are part of a cause, if you would like to call it that; people who want to make the point that Wi-Fi causes harm, and they have set up various organizations to promote that. There's one woman who's an expert who is actually a biologist who is saying there's a condition called electrosensitivity that makes certain people extremely susceptible to Wi-Fi. | |||
S: Yeah, that's the Canadian researcher Magda Havas, she's like the scientist who's really pushing notion of electrosensitivity. | |||
JB: Another thing you see in this case is this sort of conspiracy theory that the government is in the hands of industry; the – one of the plaintiffs' motion refers to the American Cancer Society as "the Goldman-Sachs of health care" and says that the FDA has been corrupted and points to the dental amalgam filling issue as evidence of that. | |||
S: Yeah. I imagine the courts are not very amenable to those theories. | |||
JB: No, and I think the plaintiffs have done themselves a disservice in bringing up that sort of thing. It's not relevant and they can't prove it and it just raises the eyebrows as to what they're up to. | |||
S: Yeah, it seems remarkably short-sighted to raise wacky, unprovable conspiracy theories as part of your case where the point of the case is to try to gain legitimacy – the perception of legitimacy for your cause. | |||
JB: Exactly. | |||
J: So, Jann, what do you think one of the next steps would be to help correct this? | |||
JB: It would take a change in the law to ease the standard for awarding attorney's fees and costs, and I don't see that happening. You know, you have to think about the bigger issues here; you don't really want to discourage people from legitimately exercising their right to bring suit in non-frivolous cases, and there's a fine line there. Sometimes – and you have to not have policies that discourage legitimate claims being brought into court. | |||
S: Yeah, it's a tricky balancing act, but one question I always have with – when these kind of issues come up, and historically, this happens over and over again, where – like, for a time in the first half of the 20th century, there was a belief that minor trauma could produce cancer, and there were therefore hundreds of lawsuits based upon that theory. But once a theory like that, like "Wi-Fi causes physical harm" in this case, gets shot down scientifically, is there a way to make all of the cases dry up. In other words, is there a way to establish a precedent, a legal precedent that Wi-Fi does not cause harm, let's say, that would short-circuit any future attempts at individual lawsuits based upon that theory? | |||
JB: Well, I suppose it could become so well-established – although it is well-established – that you'd be subject to sanctions in the form of attorney's fees and costs if you brought such a suit, but there's no way to establish precedent that I know of, like legal precedent, that decides an issue once and for all. Because it's a factual, not a legal issue. | |||
S: Yeah, but it just becomes a loser for attorneys. | |||
JB: Exactly. | |||
S: It's like, if every case based upon this theory is losing, even to the point of, as you say, getting counter-sued for legal fees, then no attorney's going to take it up any more, 'cause they're not going to make money off of it. | |||
JB: Exactly. | |||
S: That's the – I guess what limits abuse in the – our current system. | |||
JB: Now if there come to be a whole bunch of these suits filed in the federal court system, the court administrative office that oversees all the federal district courts could consolidate the cases with one judge. That's what happened in the breast cancer – I mean, I'm sorry, the breast implant cases; they got all the cases before one judge, and he said, "look there's just no evidence here". | |||
S: All right, well, Jann, thank you so much for joining us tonight and discussing this issue. These kind of things come up frequently, so it's nice to have a legal expert on hand to help us sort through it. | |||
JB: Well, thank you for having me on. | |||
== Science or Fiction <small>(1:01:12)</small> == | == Science or Fiction <small>(1:01:12)</small> == | ||
Revision as of 12:57, 28 July 2012
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Introduction
You're listening to the Skeptics' Guide to the Universe, your escape to reality.
S: Hello and welcome to the Skeptics' Guide to the Universe. Today is Wednesday, June 27th 2012, and this is your host, Steven Novella. Joining me this week are Bob Novella.
B: Hey everybody.
S: Rebecca Watson.
R: Hello everyone.
S: Jay Novella.
J: Hey Guys.
S: And Evan Bernstein.
E: Ladies and gentlemen, how are you tonight?
S: Quite well, quite well, Evan, thank you.
This Day in Skepticism (0:29)
- 1712 - Newcomen Steam Engine
R: Guess what today is?
S: Hit us.
R: Today is the anniversary that the first usable steam engine, known as the Newcomen steam engine, was invented. It was a fore-runner of the slightly more famous Watt steam engine. Though the Watt is more famous, the Newcomen was first and so should rightfully deserve our praise. So, that happened in ... 1712.
S: 1712.
R: Shut up, Steve.
B: Whoa!
R: 1712, which – I was actually going to take a guess before I looked it up and I was going to guess something much, much later. So yeah, it's really impressive that someone developed a working steam engine that early.
S: Yeah, so this is the 300th anniversary. It's actually not today, 'cause obviously it was the process of developing and installing it; I think it went on-line in September of 1712, but –
R: Steve, there was no Internet back then.
S: I know. But the – (laughs) on-line – a machine going on-line was still the – a cromulent term. So ...
R: You've embiggened my vocabulary. Thank you, sir.
S: The U.K. is gearing up for – for the – a year-long 300-year anniversary of the Newcomen steam engine. Do you guys know what the engine was used for?
J: To make steam.
E: Hanging witches. Burning witches.
B: For flying airplanes.
S: For getting water out of the bottom of coal mines.
B: Oh, wow.
S: Which was a huge problem.
E: Oh, very practical.
B: That was my second – my second choice.
S: This was at a time when the U.K. was – had pretty much burned all of – through all of their wood. So they needed coal as a fuel source, and how deep you can dig a coal mine was a limiting factor, 'cause water tends to flood and build up at the bottom of the mines. And by using a pump action, like a suction pump, there's a height limit based upon the amount of pressure – that one atmosphere of pressure can produce, and it's something like 30 feet. If you go deeper than 30 feet, there's no way to suck the water out, you have to physically pump it out, and that was not practical by hand or by any mechanism that they had. So, developing a powerful automated steam engine that works as a pump to get the water out of those mines was huge. Although that was the purpose for which the engine was created, it then led to industrial use of the steam engine, the later Watt engine, and then it actually was credited as a major spark of the Industrial Revolution.
J: And Steve, do you think that it inspired people, kind of like, you know, NASA projects inspire us today; maybe back then it was something that got people into technology and into manufacturing.
S: Yeah, I don't know. I don't know what the cultural response to it was, but certainly, industry responded very – saw the potential of it and it exploded, you know, in terms of its utility.
R: Yeah, the corollary to NASA would probably be explorers who were, you know, sailing around and things like that. But this would definitely be, you know... I mean, industry's such a huge driver of technology, particularly, you know, Industrial Revolution.
S: And even though it was primitive by modern standards, it was actually a pretty developed piece of engineering.
B: Hey guys, you know there's – I think there was a precursor to the Newcomen engine, though: Thomas Savery built the first crude steam engine in the late 1600s, so I think we should mention Thomas Savery, who produced a prototype that I think the Newcomen engine was inspired or based on.
R: The nice thing about Thomas Savery's pump is that he called it "The Miner's Friend", which is ready-made for current-day infomercials. Right? OK, it's just me. (chuckles)
J: Go ahead, do it.
R: Go on, like you know, come on! "Get the Miner's – Do you have trouble pumping water out of your mine?" Water goes everywhere. "Get the Miner's Friend!" Come on, you can see it. You can see it.
B: And also guys, before we get lots of emails on this, even the Savory engine, which was the first crude steam engine, even that was based on some guy Denis Papin's digester or pressure cooker of 1679, so.
R: Obviously, though, that's how technology works. There's no – rarely is there ever any miraculous machine that just appears, you know, springs full formed from the brow of an inventor. Every machine is some, you know, improvement over a previous iteration.
S: Yeah, and as I said, there was already signs of some incremental improvement in this; the – but this was the first one that was put into industrial use. That was the milestone.
R: Yeah.
B: OK. Yeah, just wanted to be clear on that.
E: Isn't this how science works, guys, right? You know, you start with simple ideas and then it refines, improves upon –
S: Yeah. And this is engineering; you know, engineering works that way. You try something and then you tweak it and fix it and add another lever here, and that's – those kinds of incremental advances were necessary to get to a full-scale functioning industrial model, but yeah. Newcomen was the first one to get over that threshold.
News Items
Water on The Moon and Mars (5:51)
Space.com: Water Ice in Moon's Shackleton Crater Identified
Phys.org: Extensive water in Mars' interior
Swiss Report on Homeopathy (13:59)
Science-Based Medicine: The Swiss Report on Homeopathy
Twisted Light (25:56)
BBC News: 'Twisted light' carries 2.5 terabits of data per second
Embodied Cognition (32:17)
io9.com: What Finger-counting Says About You and Your Brain
Who's That Noisy? (41:23)
Answer to last week: gamma ray burst
S: Evan!
E: Hey, doc.
S: Please regale us with this week's Who's That Noisy results.
E: I shall, right at this exact moment. Here we go.
(piano music)
E: Very dramatic, huh?
(murmuring agreement)
E: Yes, yes, music. So remember, if you remember from last week, we said that this music was a representation of something scientific, and it was up to you, the audience, to figure out exactly what that representation was. Courtesy of our friends at NASA Blogs, this is the musical representation of a gamma ray burst.
S: I was going to say cosmic rays, but gamma rays is...
E: Yeah, gamma rays.
R: Pretty but deadly.
E: The music was made by Sylvia Zhu and Judy Racusin, and they describe it as such:
Every photon has its own energy and frequency; the higher the energy, the higher the frequency.
Makes sense.
Some photons have just the right frequencies for us to see them as different colors, while others -- such as the gamma rays studied by the Fermi LAT -- are much too energetic to be seen with our eyes. Sound waves have frequencies too, and similarly, we can hear some of them as musical notes. So [this is] what happens if we convert high-energy photons into musical notes.[1]
Brilliant!
J: It's very cool.
E: For this week, we've got something entirely different. And now for something entirely different. Was that a Monty Python, or a...
S: Yeah, that was a segue. "And now for something completely different."
E: That's what I'm talking about. All right, here we go. Who's that noisy, here we go.
Some open-minded skeptics, as I am, and others, who are closed-minded skeptics, those who don't accept the afterlife
S: So wait a minute; so the closed-minded skeptics are the ones who don't accept an afterlife?
E: According to this person, that is exactly correct. Closed-minded.
S: That's a logical fallacy there. Begging the Question. A legitimate begging the question. Because he's assuming that it's reasonable to believe in the afterlife, or the afterlife is real and therefore you must be closed-minded if you reject it. So that's begging the very question, isn't it.
E: That is a beautiful Who's That Noisy this week; beautiful example of begging the question, and we would like to know if you know who that is, and let us know at info@theskepticsguide.org, that is our email. And our forums, if you would prefer to answer there, are sguforums.com. Good luck everyone.
S: Yeah. We snuck in a little Name that Logical Fallacy, too.
News Update - Causeway Cannibal (44:17)
Neurologica: Causeway Killer Mystery
R: Hey guys, I have some interesting breaking news for you related to a previous news item we discussed.
E: I love breaking news, Rebecca!
R: Don't we all? Well, a couple weeks ago[2], we talked about the "Causeway Cannibal", which is the guy who was suspected to be high on all sorts of drugs, including bath salts or-- I think it was assumed that maybe synthetic marijuana, a bunch of different drugs-- attacked a homeless man and ripped his face off, basically; chewed off pieces of his face. And we had one update to this, I think, didn't we? Am I mis-remembering?
S: We did. We had email-- an email where we said yes it was speculation; we're waiting for the toxicology.
R: Right. Well, the coroner's report is now in, as of just-- the day that we're recording this, which is Wednesday, June 27th, and according to the autopsy, the man, named Rudy Eugene, was not high on bath salts or synthetic marijuana or any drug that could be detected in his system. It was understood that he had smoked marijuana-- regular marijuana-- earlier in the day, but that was unable to be detected, I guess, with the limits of the test that they were running.
S: No, I think that they did detect marijuana, but they can't say how recently he ingested it because it stays in the system for so long.
R: Ah, OK. Thank you. Yes. They did confirm the absence of bath salts, synthetic marijuana and LSD.
S: Yeah. Although, this does make the story more interesting. So, I think there's two possibilities here. Something either-- so, if he had only marijuana in his system, which really couldn't account for this behavior, then we have no way to account for this rather extreme behavior, although he does have some history of mental illness, nothing like this. I don't know what another possibility would be; there's no neurological condition that causes people to behave this way. The other possibility is that he was under the influence of some drug but it just wasn't one that they tested for. Toxicology doesn't test for any possible drug, but only for specific known drugs that you're looking for. That still is an open possibility, and it'll be interesting to see if further information comes to light. We may never have the final answer in this case if it wasn't a drug that can be tested for or that was tested for.
Interview with Jann Bellamy (46:45)
- Campaign for Science-Based Healthcare
- jbellamy@sciencebasedhealthcare.org
- Wireless Waste: Portland schools have had to spend $172,000 fighting a parent's lawsuit over Wi-Fi
S: We are joined now by Jann Bellamy. Jann, welcome to the Skeptics' Guide.
JB: Thanks, it's nice to be here.
S: And Jann is one of my fellow founding fellows of the Institute for Science and Medicine and also blogs for us over at Science-based Medicine, and she's the founder and president of Science-based Healthcare, a Florida non-profit whose mission is to promote science and health care. And you're a practicing attorney, and we asked you to come on the show today to discuss an interesting case that has a lot of legal aspect to it and, as some of our readers are fond of pointing out, none of us are lawyers. And so we don't really know what we're talking about. So, I thought it would be a good idea to get an actual lawyer on the show to give us the skinny. So, the case involves a family who was suing a school system over alleged damage from Wi-Fi in the school system. Could you tell us about – just summarize the case for us?
JB: Sure. The plaintiffs are a father and his daughter; the daughter is a middle-school student out in Oregon. They claim that there is scientific evidence that Wi-Fi causes various harms to adults, and that the daughter is suffering physical damage because of this, although she doesn't have any real symptoms that have shown up, but in any event, they're saying that the school board should be enjoined from using Wi-Fi.
S: Are they suing for damages as well as trying to stop them from having Wi-Fi in the school?
JB: No, no damages; just an injunction.
S: So is this based on just theoretical risk from Wi-Fi; they're not actually claiming actual damage has occurred?
JB: Right. Well, they do claim that damage is ongoing to her body, but there's nothing that has shown up that they can point to. They say that Wi-Fi is inherently damaging.
S: OK, just that it's damaging, not that there's any evidence or symptoms or signs that damage has occurred in this case.
JB: No, there are not.
S: OK, so it's really just all hypothetical.
JB: Exactly.
S: So then, of course, that's what the case can focus on: just the question, "does Wi-Fi cause damage".
JB: Right. Well, there's some other issues, jurisdictional issues, but that the battle of the experts that's going on in the case right now. Both sides have moved for what's called summary judgment, saying that there are no real questions of fact and they are entitled to win as a matter of law, and they're also both trying to exclude the other's experts under Daubert[3].
S: Could you explain Daubert for a little background for our listeners?
JB: Sure. Daubert is a division of the U.S. Supreme Court which interpreted the federal rules of evidence to require certain basic elements before an opinion of an expert could be admitted into testimony, and the judge acts as a gatekeeper to keep out so-called "junk science" from getting before the jury. And the question is, "is the evidence that the expert wants to testify to, is it reliable and is it relevant?". And reliability looks to whether the reasoning or methodology underlying the testimony is scientifically valid. In other words, it's the same sort of thing a scientist would look to to see if he or she would think that this particular theory is valid. And relevance just asks whether that reasoning or methodology can be applied to the facts of the particular case.
S: So essentially, the question is, "is the expert a legitimate scientific expert, and is their expertise relative to the questions they're going to be addressing?".
JB: Relevant. Yes. That's true, and the expert has to be qualified appropriately to testify.
S: Right. So I mean, it seems like a pretty reasonable rule, and that it could effectively keep rank pseudoscientists out of the courtroom. Does it, in practice, work that way?
JB: It's an imperfect system, and I think one of the biggest issues is that judges and juries aren't scientists. And it's extremely hard for the layperson, and I can testify to this myself, to understand even basic science principles sometimes. And so, it is sometimes an uphill struggle to educate the judge on the underlying science, whatever's at issue in your case.
S: Yeah, so essentially, we're – you're gathering scientists to explain sometimes complicated science to a judge and maybe a jury who are likely to be laypeople and not be scientific experts themselves.
JB: Right; they almost always are laypeople, and... First you have to convince the judge to keep the evidence out altogether, but then if he rules against you on that issue, then you're going to have the task of explaining the science to the jury.
S: So in this particular case, both sides are still – it sounds like it's probably standard procedure; you put in a motion for summary judgment, right? Both sides are usually going to do that in a case like this?
JB: Well, you would certainly attack the other side's scientific quote-unquote "experts" with a motion to keep their testimony out; that's a separate motion than the motion for summary judgment. They just happened to be filed at the same time in this case because the defendents have other grounds on which they're trying to defeat this claim.
S: And what's that, so other than just saying "the science says there's no physical danger from Wi-Fi", what are the other grounds?
JB: Well, the main argument is that the Portland school system is well within the FCC's guidelines on Wi-Fi and they say the plaintiffs are essentially trying to argue with the FCC guidelines and they should take that up with the FCC, not the court.
S: I see. That sounds like a good argument.
JB: It does; I think they have a good chance on that argument. And that would avoid the whole argument on experts; you wouldn't even get to the facts of the case.
S: Right. Right, right. It would say, "The FCC's already decided that." So that's almost like a jurisdictional issue then, is that correct?
JB: It is exactly that.
S: OK. I see.
J: Do you think – do you think the judge will decide that &nash; you have to take it up with the FCC and just end this whole thing, or do you think that's likely at this point, or you think that's a long shot?
JB: I don't know what the judge'll do; I'm hesitant to speculate on that. I think they do have a good argument that this is something that the plaintiffs need to take up with the FCC and they might well win on that, and that would make the case basically go away.
S: Another issue that this case has raised, and this has been the subject of a lot of the reporting on it, is that the school system has already spent $172,000 of taxpayer money – that's in the education budget, I assume – to defend against this lawsuit, which to me, seems to be like a frivolous pseudoscientific case.
JB: Right.
S: Is there any way to keep this kind of thing from happening; to keep limited taxpayer resources or education funds or – may not always be a school that's being sued – from being wasted by people who are raising lawsuits that are essentially based entirely on pseudoscience?
JB: Well, there's not a lot you can do up front; you can of course purchase liability insurance and I think it's a good idea to defend these suits vigorously and send out the message that you're gonna roll over. There is something you can do after the fact, and that is move for attorney's fees and costs based on an allegation that the suit was frivolous or malicious or without basis in fact and sometimes those motions are granted and it ends up costing the plaintiff a lot of money. And that sends a message.
S: Does that happen often?
JB: It's very hard for a defendant in a case like this to show that the suit was absolutely frivolous, no basis in fact; in fact, one of the problems is that these quote-unquote "experts" can throw out enough junk that makes it seem like, you know, there may be something there.
S: They can create just enough doubt that it would be hard to say that this was an entirely baseless suit, even if the judge was against the plaintiff.
JB: Right, and judges are reluctant to impose that kind of penalty on plaintiffs.
S: Yeah, and in this case, this is just a private citizen who's probably unlikely to have a couple hundred thousand dollars laying around that they could use to pay the school system's legal fees.
JB: Although, he is paying his attorneys, I assume, and some costs, so I don't know who is funding this suit, if he has the money to do that. Interestingly, most, and perhaps all, of his six experts are not charging any fees; it's pretty clear that they are part of a cause, if you would like to call it that; people who want to make the point that Wi-Fi causes harm, and they have set up various organizations to promote that. There's one woman who's an expert who is actually a biologist who is saying there's a condition called electrosensitivity that makes certain people extremely susceptible to Wi-Fi.
S: Yeah, that's the Canadian researcher Magda Havas, she's like the scientist who's really pushing notion of electrosensitivity.
JB: Another thing you see in this case is this sort of conspiracy theory that the government is in the hands of industry; the – one of the plaintiffs' motion refers to the American Cancer Society as "the Goldman-Sachs of health care" and says that the FDA has been corrupted and points to the dental amalgam filling issue as evidence of that.
S: Yeah. I imagine the courts are not very amenable to those theories.
JB: No, and I think the plaintiffs have done themselves a disservice in bringing up that sort of thing. It's not relevant and they can't prove it and it just raises the eyebrows as to what they're up to.
S: Yeah, it seems remarkably short-sighted to raise wacky, unprovable conspiracy theories as part of your case where the point of the case is to try to gain legitimacy – the perception of legitimacy for your cause.
JB: Exactly.
J: So, Jann, what do you think one of the next steps would be to help correct this?
JB: It would take a change in the law to ease the standard for awarding attorney's fees and costs, and I don't see that happening. You know, you have to think about the bigger issues here; you don't really want to discourage people from legitimately exercising their right to bring suit in non-frivolous cases, and there's a fine line there. Sometimes – and you have to not have policies that discourage legitimate claims being brought into court.
S: Yeah, it's a tricky balancing act, but one question I always have with – when these kind of issues come up, and historically, this happens over and over again, where – like, for a time in the first half of the 20th century, there was a belief that minor trauma could produce cancer, and there were therefore hundreds of lawsuits based upon that theory. But once a theory like that, like "Wi-Fi causes physical harm" in this case, gets shot down scientifically, is there a way to make all of the cases dry up. In other words, is there a way to establish a precedent, a legal precedent that Wi-Fi does not cause harm, let's say, that would short-circuit any future attempts at individual lawsuits based upon that theory?
JB: Well, I suppose it could become so well-established – although it is well-established – that you'd be subject to sanctions in the form of attorney's fees and costs if you brought such a suit, but there's no way to establish precedent that I know of, like legal precedent, that decides an issue once and for all. Because it's a factual, not a legal issue.
S: Yeah, but it just becomes a loser for attorneys.
JB: Exactly.
S: It's like, if every case based upon this theory is losing, even to the point of, as you say, getting counter-sued for legal fees, then no attorney's going to take it up any more, 'cause they're not going to make money off of it.
JB: Exactly.
S: That's the – I guess what limits abuse in the – our current system.
JB: Now if there come to be a whole bunch of these suits filed in the federal court system, the court administrative office that oversees all the federal district courts could consolidate the cases with one judge. That's what happened in the breast cancer – I mean, I'm sorry, the breast implant cases; they got all the cases before one judge, and he said, "look there's just no evidence here".
S: All right, well, Jann, thank you so much for joining us tonight and discussing this issue. These kind of things come up frequently, so it's nice to have a legal expert on hand to help us sort through it.
JB: Well, thank you for having me on.
Science or Fiction (1:01:12)
Item number one. An international team of scientists have discovered that super-sized space tornadoes may explain why the sun's atmosphere is much hotter than its surface. Item number two. Astronomers have detected what they believe to be the first trinary planetary system - three exoplanets sharing the same orbit. And item number three. Astronomers have developed a new method for both accurately weighing exoplanets and detecting the composition of their atmosphere, even those that are non-transiting.
Skeptical Quote of the Week (1:16:48)
I have noticed even people who claim everything is predestined, and that we can do nothing to change it, look before they cross the road.
J: Prof. Stephen Hawking!
Announcements (1:17:30)
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