In Lakey v. Puget Sound Energy, Inc., No. 87679-7 (Wash. 2013), the Supreme Court of Washington put power companies on notice that electromagnetic radiation could receive greater scrutiny in Washington courts, but the case also opened a back door for pre-existing uses.
Lakey involved a dispute between a power company and landowners living near a substation that had been in operation since the 1960s. When the company replaced the substation with a new, higher-capacity unit in 2010, neighboring landowners brought suit, claiming, among other things, that it was a public and private nuisance.
Utility providers and those living near power lines are well familiar with the high-voltage debate surrounding electromagnetic fields, or EMFs. For decades, scientists and laypersons have worried that EMFs associated with power lines and stations might increase the risk of a variety of illnesses, including childhood leukemia and Alzheimer’s disease. But there is little (if any) conclusive evidence, and scientists and the public remain divided.
Yet in Lakey, the supreme court decided that the methodology used by a scientist, Dr. David Carpenter, passed the Frye test for expert testimony. Frye requires that when a court is considering whether to allow expert testimony, the court must ask whether the methodology used is sufficiently established to have gained general acceptance in the scientific community. Because Dr. Carpenter’s method involved simply reviewing the data gathered by other scientists, and using those data to reach a novel conclusion, the court held that his technique was sound.
Despite this, however, the court excluded Dr. Carpenter’s testimony, saying that he failed to adhere to reliable methodology (required by Evidence Rule 702). By his own admission, he disregarded studies finding no link between EMFs and human diseases and he failed to consider toxicology studies, a violation of epidemiological protocol.
But that isn’t the back door. The supreme court in Lakey took a dim view of the plaintiffs’ nuisance claim, holding that the public importance of electric supply far outweighed any reasonable fear of the EMFs’ potential effects. The court was especially turned off by the fact that the substation had existed in that location for some 50 years before the neighbors filed suit.
Still, this ruling could pose problems for power companies, which should take note. The court’s partial acceptance of Dr. Carpenter’s methodology makes it easier for future EMF challengers to use this controversial scientific position, and it makes litigation more likely. If a challenger is able to overcome the ER 702 hurdle, a nuisance claim might still succeed, especially if the substation is in a completely new location.