The opinion
UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
ED FRIEDMAN, )
)
Plaintiff, )
)
v. ) 2:20-cv-00237-JDL
)
CENTRAL MAINE POWER )
COMPANY, )
)
Defendant. )
ORDER ON MOTIONS TO EXCLUDE EXPERT WITNESS TESTIMONY
Ed Friedman brings this action against Central Maine Power Company
(“CMP”) for allegedly violating the Americans with Disabilities Act, the
Rehabilitation Act, and the Fair Housing Act by charging him a monthly fee to opt
out of CMP’s program to replace analog meters with “smart meters” to measure
customer electricity usage remotely. Friedman, who has a rare form of non-Hodgkin’s
lymphoma, argues that waiving the opt-out fee is a reasonable accommodation to
avoid exacerbating his cancer prognosis and associated symptoms through exposure
to radiofrequency (“RF”) radiation that a CMP smart meter will emit if installed on
his property. Both Friedman and CMP have retained expert witnesses and move to
exclude testimony from all or a portion of their adversary’s experts under Federal
Rule of Evidence 702 and Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993).
I. PROCEDURAL HISTORY
After Friedman brought this action in July 2020 (ECF No. 1), CMP moved to
dismiss the claims against it for failure to state a claim (ECF No. 11). I denied CMP’s
motion while noting that “Friedman must eventually prove . . . that having a smart
meter installed at his home actually risks worsening his lymphoma’s progression or
symptoms” to ultimately prevail. ECF No. 26 at 9. The parties completed discovery
and designated several expert witnesses to support their positions. Friedman
designated four experts: Dr. David Carpenter, a public health physician and professor
of environmental health science; Dr. Paul Héroux, a physicist and professor of health
science; Erik Anderson, an electrical engineer; and Dr. Kent Chamberlin, a professor
of electrical and computer engineering. CMP enlisted an expert lineup that included,
among others, Dr. Robert Gale, a medical doctor and academic who has published on
topics including cancer biology and radiation biology.
On March 29, 2023, CMP filed a notice of intent to move for summary judgment
and to exclude or limit the testimony of each of Friedman’s four designated experts
(ECF No. 86), and Friedman moved to exclude Dr. Gale’s testimony shortly thereafter
(ECF No. 91). Pursuant to Local Rule 56(h), I held a case management conference
with the parties on May 17, 2023 (ECF No. 96) and issued a report after explaining
that I would decide the parties’ Daubert motions before setting a schedule for
summary judgment practice (ECF No. 97). CMP subsequently moved to exclude or
limit the testimony of Dr. Carpenter, Mr. Anderson, Dr. Chamberlin, and Dr. Héroux
(ECF Nos. 99, 100, 101, 102). I held oral argument on the five pending Daubert
motions on August 31, 2023 (ECF No. 123).
II. LEGAL STANDARD
Federal Rule of Evidence 702 governs expert witness testimony and provides
the framework for assessing the parties’ pending motions. Rule 702 provides in full:
A witness who is qualified as an expert by knowledge, skill, experience,
training, or education may testify in the form of an opinion or otherwise
if the proponent demonstrates to the court that it is more likely than not
that: (a) the expert’s scientific, technical, or other specialized knowledge
will help the trier of fact to understand the evidence or to determine a
fact in issue; (b) the testimony is based on sufficient facts or data; (c) the
testimony is the product of reliable principles and methods; and (d) the
expert’s opinion reflects a reliable application of the principles and
methods to the facts of the case.
Fed. R. Evid. 702.1
As a threshold matter, Rule 702 requires “that a putative expert be qualified
to testify by knowledge, skill, experience, training or education.” Levin v. Dalva Bros.,
Inc., 459 F.3d 68, 78 (1st Cir. 2006). Because courts interpret Rule 702 “liberally in
favor of the admission of expert testimony . . . expert witnesses need not have overly
specialized knowledge to offer opinions.” Id.; see also Daubert, 509 U.S. at 588
(recognizing the “‘liberal thrust’ of the Federal Rules” of Evidence broadly—and Rule
702 specifically—as well as the Rules’ “general approach of relaxing the traditional
barriers to ‘opinion’ testimony” (quoting Beech Aircraft Corp. v. Rainey, 488 U.S. 153,
169 (1988)). Still, a witness qualified as expert on certain topics “does not mean that
he or she is qualified to express expert opinions as to other fields.” Levin, 459 F.3d
at 78 (quoting Nimely v. City of New York, 414 F.3d 381, 399 n.13 (2d Cir. 2005)
(alteration omitted)). Courts, therefore, should exclude proffered opinions that are
1 The most recent amendments to Federal Rule of Evidence 702 became effective December 1, 2023.
This Order references Rule 702’s current language.
outside the witness’s established expertise as circumscribed by one or more of the five
bases in Rule 702. Id.
Beyond establishing the bases for qualification, the purpose of Rule 702 is to
probe the “validity and thus the evidentiary relevance and reliability” of the
principles and methodology underlying proffered expert testimony. Daubert, 509
U.S. at 594-95. Subsection (a) of the rule speaks to the relevance or “fit” of the
proposed testimony; its “‘helpfulness’ standard requires a valid scientific connection
to the pertinent inquiry as a precondition to admissibility.” Id. at 591-92. Evidence
is relevant if it has “any tendency to make the existence of any fact that is of
consequence to the determination of the action more probable or less probable than
it would be without the evidence.” Id. at 587 (quoting Fed. R. Evid. 401 prior to its
amendment effective Dec. 1, 2011).
Subsections (b), (c), and (d) of Rule 702 speak to reliability. See Fed. R. Evid.
702 advisory committee’s note to 2023 amendments. “Reliability” in this context
means “evidentiary reliability—that is, trustworthiness.” Daubert, 509 U.S. at 590
n.9. “In a case involving scientific evidence, evidentiary reliability will be based upon
scientific validity”—i.e., whether “the principle support[s] what it purports to show[.]”
Id. Factors that may inform a reliability determination include: “(1) whether the
theory or technique can be and has been tested; (2) whether the technique has been
subject to peer review and publication; (3) the technique’s known or potential rate of
error; and (4) the level of the theory or technique’s acceptance within the relevant
discipline.” United States v. Mooney, 315 F.3d 54, 62 (1st Cir. 2002) (citing Daubert,
509 U.S. at 593-94). Which Daubert factors are pertinent to assessing reliability
“depend[s] on the nature of the issue, the expert’s particular expertise, and the
subject of his testimony.” Milward v. Acuity Specialty Prods. Grp. Inc., 639 F.3d 11,
14 (1st Cir. 2011) (quoting Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 150
(1999)). In any event, less stringent application of those factors is appropriate in a
bench trial where Daubert’s usual concern—“keeping unreliable expert testimony
from the jury”—is not present. Issokson v. Ins. Co. of N. Am., No.
3:18-cv-30070-MGM, 2023 WL 4195941, at *1 (D. Mass. May 4, 2023). However
rigorously applied, “the rejection of expert testimony is the exception rather than the
rule.” Fed. R. Civ. P. 702 advisory committee’s note to 2000 amendments.
III. ANALYSIS
A. CMP’s Daubert Motions
CMP initially moved to exclude, in whole or in part, the testimony of all four
of Friedman’s designated experts: Dr. David Carpenter, Dr. Paul Héroux, Erik
Anderson, and Dr. Kent Chamberlin. Friedman has since withdrawn Chamberlin as
an expert (ECF No. 106), so I deny CMP’s motion to exclude him as moot. The
following discussion examines CMP’s remaining Daubert motions in turn.
1. Dr. David Carpenter
CMP moves to exclude the testimony of Dr. David Carpenter on the basis that
he is not qualified to opine about the general causal relationship between exposure
to RF radiation and cancer. Even if Carpenter is qualified to testify about general
causation, CMP further contends that his testimony is nonetheless inadmissible
because his opinions lack the requisite foundation to be considered reliable.2 In
support, CMP argues that Carpenter neither knows what level of RF radiation
exposure causes adverse human health effects nor has any information about
Friedman’s expected exposure if a smart meter were installed on his property.
Friedman disagrees and urges the Court to consider the admissibility of
Carpenter’s testimony based on the specific question he says Carpenter’s expert
report addressed: “whether having a smart meter in [Friedman’s] home risks
exacerbating [Friedman’s] cancer and or symptoms.” ECF No. 104 at 7. Friedman
points to Carpenter’s extensive experience as a public health physician as qualifying
him to opine on that general causal link and the attendant risks. He also contests
the alleged gaps in Carpenter’s opinions, which he claims that CMP misstates.
(a) Expert Qualifications: General vs. Specific Causation
A brief discussion of general versus specific causation is necessary to
contextualize my analysis of the parties’ arguments. General causation answers
whether a “particular stimulus [is] known to produce a particular reaction.” Fed.
Jud. Ctr., Reference Manual on Scientific Evidence xiv (3d ed. 2011). By contrast,
specific causation answers whether “a particular stimulus cause[d] a particular
2 CMP also challenges Carpenter’s reliability to the extent that he formed opinions based on evidence
that CMP says is irrelevant to Friedman’s particular case, namely evidence related to
electro-hypersensitivity—a condition that Friedman does not claim to have—and evidence that
exposure to RF radiation at intensities emitted by cell phones and cell towers causes certain cancers
(not including the type Friedman has been diagnosed with) in rodents. CMP also initially sought to
exclude Carpenter’s opinions about specific causation, arguing that he is not qualified to assess
Friedman’s individual medical risks because, among other reasons, he has never examined Friedman
or reviewed his medical records. As CMP acknowledges, the Court need not address the specific-
causation argument because Friedman has indicated that he is offering Carpenter to opine on general
causation only.
consequence in a specific instance.” Id. As I will explain, Carpenter’s opinion and
CMP’s motion to exclude it conflate those distinct concepts.
In his report, Carpenter concludes “with a reasonable degree of medical
certainty that if a smart meter were placed on Mr. Friedman’s house, the elevated
exposure [to RF radiation] coming from it would increase the risk his cancer could
worsen which in turn logically may exacerbate his symptoms affecting his quality of
life and likely shortening it.” ECF No. 99-1 at 5. That conclusion encompasses
opinions on causation both general and specific. First, on general causation,
Carpenter’s conclusion is premised on the existence of a causal relationship between
exposure to RF radiation and shortened life expectancy for persons who have certain
conditions, including cancers similar to but distinct from Friedman’s lymphoma. See
ECF No. 99-1 at 5 (considering the effects of exposure to electromagnetic fields on
children with leukemia). Carpenter also attests to specific causation, albeit
hypothetically given the nature of Friedman’s claims, by applying that general causal
relationship to Friedman’s particular circumstances to gauge the prospective risk of
harm he faces. Both opinions assume that smart meters emit some amount of RF
radiation, which CMP concedes. In response, CMP argues that Carpenter “cannot
offer a reliable, scientifically-sound opinion that the exposure [to RF radiation from
a smart meter on Friedman’s property] would be at a dose sufficient to exacerbate Ed
Friedman’s rare blood cancer.” ECF No. 109 at 10. The essence of CMP’s opposition,
then, is to Carpenter’s qualification to opine on specific causation.
In response, Friedman sidesteps CMP’s argument by offering Carpenter as an
“expert on risk” who will testify about “the effect of smart meter radiofrequency on
humans generally and humans suffering from similar cancers specifically”—but
Friedman does not refute the argument entirely. ECF No. 104 at 12, 10 (emphasis
omitted). Because Friedman effectively concedes that Carpenter will not render
opinions on specific causation, CMP’s motion is properly granted to the extent that
Carpenter may not offer testimony applying his observations on general causation to
Friedman’s particular circumstances. By the same token, I find that Carpenter’s
experience as a public health practitioner and academic qualifies him to testify about
general causation, as circumscribed above.
(b) Reliability
Even with Carpenter’s testimony limited to general causation, CMP argues
that his opinions are unreliable for lack of foundation because Carpenter does not
know what dose of RF radiation causes adverse human health effects. When asked
at his deposition to clarify whether he could identify the level of RF exposure that
“would create an appreciable risk of harm to human beings,” ECF No. 99-2 at
59:13-14,3 Carpenter testified:
A: There are biological effects at any exposure, exposures we all get all
the time because of sun, because of AM and FM radio, from television,
and so forth. But we’re -- we cannot avoid exposure on this earth. But
the greater the exposure, the greater the risk of developing these
diseases, of developing cancer, of developing fertility problems, of
developing electrohypersensitivity. And the threshold of exposure for
3 Citations to Carpenter’s deposition testimony use the page numbers of the deposition transcript
itself, not of the docket filing (ECF No. 99-2) in which the transcript is incorporated.
any of those outcomes is going to vary somewhat from person to person
depending on the genetic makeup and so forth.
But I do not believe that we will ever be able to define an exposure level
that’s the boundary between safe and unsafe. Therefore, the rational
thing to do is to accept the fact that we cannot avoid exposure totally,
but that there is a health hazard from exposure and, therefore, we
should take steps to reduce our exposure to the degree we can, without
major disruption of lifestyle.
. . . .
Q. You’re basically saying, [“]I don’t know what the health risks are of
having smart meters, but because they don’t serve any particular or any
particularly compelling purpose, it would be better to do away with them
so as not to incrementally increase exposure to a potentially harmful
energy;[”] is that fair?
A. That’s correct. That’s exactly correct.
ECF No. 99-2 at 61:24-62:18; 63:11-18. In subsequent deposition testimony,
Carpenter could not quantify how much RF radiation smart meters emit and could
only suppose whether it was more or less than emissions from other manmade
sources. Indeed, Friedman does not claim that Carpenter “know[s] the exact figures
of exposure,”4 but Friedman nonetheless insists Carpenter can opine on “the health
effects of the type of [RF radiation emitted] by smart meters and their effects on the
human body.” ECF No. 104 at 11.
Inadmissible statements on specific causation aside, Carpenter’s report and
deposition testimony boil down to two essential opinions. First, because smart meters
emit a type of RF radiation that has deleterious effects on human health, the presence
4 Friedman represents that other experts will opine on the specific exposure level and notes more
broadly that none of his designated experts, on their own, “is qualified to testify to both the engineering
and human health aspects of smart meters, but together they provide a complete picture.” ECF No.
104 at 11 n.1.
of a smart meter in or near a person’s home would elevate their aggregate exposure
to that radiation and, therefore, risk worsening their preexisting conditions and
associated symptoms. Second, the greater the exposure to RF radiation, the greater
the risk of harm. Carpenter’s opinion relies on two studies that examined the
relationship between magnetic field exposure and survival rates among children
previously diagnosed with leukemia.5 Both studies suggest that Carpenter’s theory
has been tested, published, and garnered at least some acceptance in the public
health community—all indications of reliability under Daubert. Despite objecting to
many of the other studies Carpenter relied on to inform his opinions, CMP does not
challenge either leukemia study as unreliable. CMP does not dispute the conclusions
of the leukemia studies, critique them as methodologically unsound, or contend that
the disease, human subjects, or type of electromagnetic fields they examine are too
distinct from Friedman’s circumstances to be analogous. On that last point,
Carpenter likens leukemia to Friedman’s lymphoma because both are cancers that
impact the immune system, which CMP does not dispute. See ECF No. 99-2 at
112:20-23. Though the leukemia studies do not compel any conclusions about the
relationship between RF radiation and Friedman’s particular cancer, they lay the
foundation necessary for me to find Carpenter’s opinions on general causation
sufficiently reliable to survive CMP’s challenge.
5 Though Carpenter relies on other studies as support for the proposition that RF radiation can cause
certain types of cancers, I disregard that opinion and the cited authorities supporting it because
Friedman contends only that the installation of a smart meter on his property will exacerbate his
cancer prognosis and symptoms.
For the foregoing reasons, I grant CMP’s motion in part to the extent that the
Court will not consider Carpenter’s opinions on specific causation. I deny CMP’s
motion in part as to Carpenter’s opinions regarding the general causal relationship,
if any, between exposure to RF radiation and its potential to worsen cancer prognoses
and symptoms.
2. Dr. Paul Héroux
CMP next moves to exclude the testimony of Dr. Paul Héroux, who Friedman
designates as an expert on “the effect of exposure [to RF radiation] on the human
body.” ECF No. 118 at 5. CMP argues that (1) Héroux is not qualified to opine about
Friedman’s individualized medical risk, (2) Héroux’s testimony about the relationship
between RF exposure and cardiac function is irrelevant to Friedman’s claims, and
(3) Héroux’s opinion that RF radiation promotes cancer is unreliable.
Héroux’s report consists largely of prefatory observations that contextualize
brief conclusions about, as summarized by Friedman, the “link between the existence
of smart meter-created RF and human health.” ECF No. 118 at 5. Héroux opines, in
relevant part:
Having a smart meter installed at Mr. Friedman’s home carries a risk
of worsening his lymphoma’s progression or symptoms. As the National
Toxicology Program and Ramazzini Institute findings show, there is also
clear evidence from toxicological animal experiments that
electromagnetic radiation as that from smart meters can adversely
impact the heart. Low levels of radiofrequency radiation are also known
to create oxidative stress which in turn can cause chronic inflammation,
a well-established cause and promoter of cancers, cardiovascular and
other diseases.
ECF No. 118-3 at 2 (footnotes omitted).
Like Carpenter, Héroux may testify on general causation only. Héroux’s
experience in health sciences, which includes authoring a book on the health effects
of electromagnetism, qualify him to opine about the general causal relationship
between RF radiation and human health. As Héroux concedes, he is not Friedman’s
physician and, aside from Friedman’s general diagnosis, he does not claim to have
any special knowledge specific to Friedman’s prognosis or symptoms. To the extent
Héroux is offered to testify about Friedman’s specific condition, Héroux lacks the
requisite foundation to render reliable opinions about Friedman’s individual medical
circumstances. Héroux may, however, offer his perspective on the relative risk of
harm that increased exposure to RF radiation poses to individuals with a cancer
diagnosis affecting cells, like white blood cells, that have been the subject of his
scholarly and experimental work.
In addition, though Héroux may testify about general causation, he may not
offer opinions about the relationship between exposure to RF radiation and cardiac
function. As CMP rightly observes, Friedman does not claim to require
accommodation to avoid exacerbating his coronary artery disease. Even assuming
that Friedman is correct that the effects of RF radiation exposure on his coronary
artery disease would “compound” his health risks, ECF No. 107 at 7 n.1, that fact has
not been shown to be relevant to his claims seeking accommodation to prevent his
cancer prognosis and symptoms from worsening. Friedman’s cancer and heart
condition are comorbidities. Although the effect of one worsening comorbidity on the
other could, hypothetically, have “a valid scientific connection to the pertinent
inquiry” presented by Friedman’s claims, Héroux has not offered any opinion
connecting the two. Daubert, 509 U.S. at 592. That missing link leads me to conclude
that Héroux’s opinions about heart health are irrelevant for present purposes.
Finally, CMP argues that Héroux should not be permitted to opine that
exposure to RF radiation “promotes” cancer because the studies that opinion relies
on are inapt. ECF No. 102 at 2; see also ECF No. 102 at 13-15; ECF No. 118-3 at 2.
For reasons I will explain, I disagree.
Héroux cites a study (the “Yakymenko study”) on the “[o]xidative mechanisms
of biological activity of low-intensity radiofrequency radiation” to support the
proposition that “[l]ow levels of radiofrequency radiation are . . . known to create
oxidative stress.” ECF No. 118-3 at 2-3 & n.6. He cites a second study (the “Khansari
study”) on “[c]hronic inflammation and oxidative stress as a major cause of
age-related diseases and cancers” to support the related conclusion that oxidative
stress “can cause chronic inflammation, a well-established cause and promoter of
cancers.” ECF No. 188-3 at 2-3 & n.7. CMP critiques the Yakymenko study as
unreliable for failing to consider any study that demonstrated a causal relationship
between (1) RF radiation at levels emitted by smart meters and oxidative stress, and
(2) RF radiation at any level and the worsening of Friedman’s particular type of
cancer. Those arguments may inform what weight and credibility Héroux’s opinions
should be afforded, but they do not compel excluding them outright before subjecting
them to further scrutiny through the adversarial process. As to the Khansari study,
CMP contends it is irrelevant because Héroux does “not know what exposure Ed
Friedman would have if a smart meter were installed on his property” and therefore
“lacks the foundation essential to an opinion that the exposure would be sufficient to
cause oxidative stress.” ECF No. 102 at 15. Because Héroux cannot opine on the
specific causation—i.e., the prospective effect of smart-meter-emitted RF radiation on
Friedman’s cancer prognosis and symptoms—I find that CMP’s objection to Héroux’s
reliance on the Khansari study is moot.
In sum, Héroux may opine on the general causal relationship, if any, between
exposure to RF radiation and worsening cancer prognoses and symptoms as well as
associated risks of harm, but no more.
3. Erik Anderson
Lastly, CMP moves to exclude the testimony of electrical engineer Erik
Anderson, but only in part. CMP specifically requests that the Court bar Anderson
from testifying about (1) “the phenomenon of electrical transients or ‘dirty electricity,’
or suggesting that the phenomenon poses a risk to human health;” and (2) “the
phenomenon of conducted emissions, or suggesting that the phenomenon poses a risk
to human health.”6 ECF No. 100 at 9. In support, CMP attacks those proffered
opinions as irrelevant. Friedman blunts CMP’s arguments by conceding that he is
not offering Anderson to “opine on the medical effects of radiofrequency.” ECF No.
105 at 4. I conclude that Anderson may not testify about the adverse health effects,
6 CMP also initially moved to prevent Anderson from testifying that its smart meters “transmit [RF
radiation] more times than CMP reports.” ECF No. 100 at 9 (quoting ECF No. 100-1 at 28) (CMP’s
alterations omitted). Friedman agrees to this limitation but reserves the right to ask Anderson about
his testing on other smart meter models and comparing those results to specifications reported by
CMP. CMP acknowledges Friedman’s concession and notes that it may file a motion in limine as to
what Friedman does not concede on this topic should the case proceed to trial. ECF No. 111 at 6 n.3.
if any, of various electrical phenomena, though that limitation does not preclude
Friedman’s other designated experts from relying on Anderson’s opinions as
scaffolding for their own conclusions.
As to what remains of CMP’s motion, its arguments that Anderson’s opinions
about “dirty electricity” and “conducted emissions” are irrelevant are inexorably tied
to the testimony that Drs. Carpenter and Héroux may offer. Though the limitations
I impose on Carpenter and Héroux’s testimony may well render Anderson’s opinions
irrelevant or otherwise inadmissible, I reserve judgment on that question, which
CMP may raise in a motion for summary judgment or at trial.
B. Friedman’s Daubert Motion: Dr. Robert Gale
For his part, Friedman moves to exclude the testimony of one of CMP’s expert
witnesses, Dr. Robert Gale. Friedman concedes that he does not challenge Gale’s
qualifications, but seeks to exclude his expert testimony because it is irrelevant to
“the question posed in this litigation” or, for that matter, “any issue in this case.”
ECF No. 103 at 3. In support, Friedman contends that the scope of Gale’s expert
report is limited to “whether the exposure risk was more or less than 50 percent.”
ECF No. 103 at 5. Friedman argues that Gale’s deposition testimony clarified that
scope and implies that the clarification was only required because Gale’s report did
“not necessarily speak for itself.” ECF No. 103 at 5.
Contrary to Friedman’s contentions, Gale’s report clearly delineates the scope
of his opinions without need for further clarification, and those opinions—which
would be the basis for the testimony Friedman seeks to exclude, Fed. R. Civ. P.
26(a)(2)(B)(i)—are plainly relevant to the issues this case raises considered against
the “permissive backdrop” of the federal evidentiary rules. Daubert, 509 U.S. at 589.
The “Opinion” section of Gale’s report provides:
Based on data I reviewed and considered I opine, to a reasonable degree
of medical probability, it is less likely than not [that] exposure to
radiofrequency electromagnetic fields from a smart meter of the type
proposed to be installed by [CMP] in the residence of Mr. Edward
Friedman, would worsen signs, symptoms and/or prognosis of Mr.
Friedman’s lymphoplasmacytic lymphoma/Waldenström
macroglobulinemia.
Put otherwise, after an extensive review of the biomedical literature and
reports from scientific bodies, medical authorities and regulatory
agencies I found no credible evidence [that] exposure to radiofrequency
[electro]magnetic fields such as those emitted from a smart meter of the
type proposed to be installed by [CMP] at the residence of Mr. Edward
Friedman would worse[n] signs, symptoms or prognosis in someone with
lymphoplasmacytic lymphoma/Waldenström macroglobulinemia
including Mr. Friedman.
ECF No. 98-1 at 48-49 (emphasis added).
Friedman’s claims against CMP are premised on the theory that “exposure to
[RF] radiation” emitted by a CMP smart meter “may exacerbate [the symptoms and]
the progression” of his cancer if installed on his property. ECF No. 1 at 3, ¶ 14
(alteration omitted). Gale’s opinion that Friedman’s cancer symptoms and prognosis
would not likely be worsened by exposure to RF radiation from a CMP smart meter
squarely confronts that theory, framed in the same prospective terms as the claims
that CMP seeks to rebut. That opinion alone may be insufficient to ultimately fend
off Friedman’s claims. But there is no serious question that it is potentially
consequential and, therefore, relevant to the matter at hand. Thus, Friedman’s
motion as to Gale is properly denied.
IV. CONCLUSION
For the foregoing reasons, CMP’s Motion to Dismiss the Testimony of Expert
Witness Dr. Kent Chamberlin (ECF No. 101) is DENIED as moot; CMP’s Motions to
Exclude the Testimony of Expert Witnesses Dr. David Carpenter, Erik Anderson, and
Dr. Paul Héroux (ECF Nos. 99, 100, 102) are GRANTED IN PART AND DENIED
IN PART as explained herein; and Friedman’s Motion to Exclude the Testimony of
Expert Witness Dr. Robert Gale (ECF No. 91) is DENIED.
SO ORDERED.
Dated this 28th day of March, 2024.
/s/ Jon D. Levy
U.S. DISTRICT JUDGE