On Monday, June 2nd, 2014, we submitted the Amicus Brief to the Appellate Court of the State of New Mexico in the case of Firstenberg v. Monribot. Usually an Amicus Brief is submitted in support of one of the parties. In our case, the brief intends to support Arthur Firstenberg’s position.
In this case, Arthur Firstenberg, submitted an action against his neighbor for nuisance, claiming that her use of wireless gadgets was harming his health and forced him to leave his house. The first instance ruled that EHS is not a real condition but a psychological problem and the brief was submitted as part of the appeal of the decision.
The brief was submitted on behalf of 94 (!) organizations from 22 countries (!) which have decided to join the brief. We did not expect such overwhelming support! I want to thank all of you – the organizations that joined and everyone who helped us get organizations to join and there were many!
Please find attached:
The Amicus Brief we submitted on behalf of the 94 organizations.
The list of the 94 organizations and a short description of their activity as submitted to the Court.
Arthur Firsteneberg’s appellant’s brief.
- You may publish the briefs.
I also wrote a post in my blog: http://ehsfighback.blogspot.com/2014/06/94-organizations-submitted-amicus-brief.html
Explanation of the Amicus Brief
As many of the organizations are neither from the US, nor from English speaking countries, I’ll use simple language and as little legal jargon as possible to enable everyone to understand our action.
I’ll start with the technicalities – in the US, an attorney can practice law only in the state where she took the bar exam and was subsequently admitted to practice law. She cannot practice automatically in other states within the US. I am licensed to practice law in the State of NY (and in Israel). Since Arthur’s case is in the state of New Mexico, I had to use something called “Pro Hoc Vice”- I submitted an application to the New Mexico Bar Association to be allowed to practice law in New Mexico only for this one case. In order to be able to do that, a New Mexico Attorney had to ‘sponsor’ me. Ms. Stefanie Beninato, a New Mexico attorney agreed to sponsor me. Therefore under my signature, she is signed on the brief as well.
Consent of the parties and the court to accept the Amicus Brief
Since the 94 organizations, who are called the ‘Amici’, and I, Dafna, as their attorney, are not party to the lawsuit – we are not the Plaintiff and not the Defendant, but we are merely asking the Court to be
allowed to join the case in a status known as “Friend of the Court” – we had to ask for the consent of the Plaintiff and the Defendant and for the consent of the Court to submit the amicus brief. I sent the request to the parties and both parties, the Plaintiff and the Defendant, agreed, and the brief was submitted to the Court with the parties’ consent. Now we have to wait to learn whether the Court agrees to accept the brief. The fact that both parties consented increases the chances that the Court will agree to accept the amicus brief.
The content of the brief that was submitted
When you read the brief that I submitted, you may think that many other points could have been raised, that more studies exist to indicate the existence of EHS etc. and you are right. But we could not write it all as we were limited by legal restrictions, and we did our best within the limitations.
The limitations as to what we could argue
Arthur’s case was not heard in the district court. It was ‘dismissed’ without the Court hearing Arthur’s evidence and experts as to EHS. Therefore, the appeal is not asking the Appellate Court to judge the science on EHS, but instead, focus on the law, on the legal arguments asking the Court to order the district court, which ruled that EHS is not an acknowledged condition without properly examining the evidence and dismissed the case, to hear the evidence on EHS before dismissing the case.
For this reason, Arthur’s appeal brief is focusing on technical legalities, on why the decision of the trial judge to dismiss the case without hearing the evidence is legally wrong. Therefore, his appeal brief is not dealing with the evidence regarding the existence of EHS but rather, it is focusing on legal arguments.
As a result, we could not discuss the evidence as to the existence of EHS. We could not bring new evidence (with some exceptions), we were only allowed to use the evidence which was already submitted, and we could not argue as to the existence of EHS, the false WHO decision, the flawed Rubin papers etc.
The Content of the Brief
What we could do, and should have done as the Amici, and as we did, was to focus on two things:
(1) Show that EHS is not only Arthur’s problem but a widespread problem in the US and worldwide – We did it in two ways – the first, the fact that 94 organizations from around the world, all organizations which deal directly and/or indirectly with EHS, joined the brief, by itself indicates the extent of the problem; the second, by using studies as to the extent of EHS and which were already submitted into Evidence by Arthur.
(2) Show that EHS is a recognized medical problem – As the trial Judge dismissed the case and said that EHS is not recognized, we showed the Court that the trial judge was wrong, as EHS is recognized.
We also could have contested the legality of the trial judge’s decision but since Arthur did it so thoroughly in his brief, I did not see any point in repeating his arguments.
We have to wait and see if the Court decides to accept the brief. I’ll let you all know once I get the Court’s decision.
Once again, thank you all for joining this action and thank you everyone who helped! I’m glad we all joined together in this action and I hope we continue to support each other in this important and urgent work.
I will not submit an Amicus Brief in Arthur’s second case
When I was looking for organizations to join the Amicus Brief in support of Arthur’s cases, I was considering trying to submit an Amicus Brief in both cases. Unfortunately, I will not be able to submit the brief in the second case. About a week ago, Arthur was informed that the brief in his second case will be due this month. This does not allow me enough time to work on the second brief, especially as I have to continue work on the case in Israel. If another attorney is willing to volunteer to write the brief that would be great.
I hope New Mexico’s Appellate Court accepts Arthur’s claims and orders that an examination of the evidence as to EHS be conducted.
On a personal note – in order to submit the brief, we paid about $2,000 for various expenses, not including the time for my work. Any donation would be appreciated. You can donate in my blog: http://ehsfighback.blogspot.com/
I will keep you posted with any development.
Dafna Tachover Esq. (NY, Israel), MBA
EHS Fight Back
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