BOSTON (LN) — The First Circuit on Tuesday affirmed summary judgment for Central Maine Power Company against a lymphoma patient who claimed the utility's smart-meter opt-out fee discriminated against him under the ADA, the Fair Housing Act, and the Rehabilitation Act, holding that the exclusion of Ed Friedman's treating physicians as untimely expert witnesses left his case without the specific-causation evidence it needed to survive.
Friedman, a resident of Bowdoinham, Maine, suffers from lymphoplasmacytic lymphoma, a rare and incurable form of blood cancer. After CMP declined to waive a fee — $40 upfront plus roughly $18 a month as of 2023 — for customers who wanted to keep analog meters rather than the company's new digital smart meters, Friedman withheld payment for several months. CMP eventually cut off his electricity service.
The core of Friedman's case was that radiofrequency radiation emitted by smart meters risked worsening his cancer, making the fee waiver a necessary reasonable accommodation. He retained two experts — a physicist and a public-health specialist — who opined that RF exposure could harm cancer patients generally. But neither had reviewed Friedman's medical records or calculated his expected RF exposure from CMP's meters, and the district court limited them to general causation testimony. Friedman did not appeal that ruling.
To bridge the gap, Friedman turned to his treating oncologist, Dr. David Benton, and his primary-care physician, Dr. Stephen Goldbas. Dr. Goldbas's declaration stated that "having a smart meter . . . will have a negative effect on [Friedman's] cancer treatment and worsen [his] symptoms." Dr. Benton, who had signed a letter saying RF radiation "may exacerbate" Friedman's symptoms — softened from an earlier draft he was not comfortable endorsing — was offered to establish the negative effect a smart meter would have on Friedman's palliative treatment.
The district court excluded both physicians' opinions as untimely expert disclosures, finding they came more than two years after the deadline had passed. The First Circuit, in an opinion by Circuit Judge Julie Rikelman, affirmed that ruling. The court noted that the scheduling order had expressly identified treating physicians as possible expert witnesses, that Friedman had already shown he knew how to make expert designations, and that he had taken no steps to designate either doctor as a backup even after CMP spent a year challenging his retained experts.
On the causation standard, Friedman argued the district court had wrongly demanded certainty that smart meters would harm him. The First Circuit declined to resolve that dispute, concluding it did not matter: even under Friedman's own proposed standard — that the meters posed a non-speculative risk of harm — the record came up short without the treating physicians' testimony.
The surcharge claim fell with the rest. Because the record could not support a finding that an analog meter was necessary under the ADA, the court reasoned, the opt-out fee could not be an unlawful surcharge for an accommodation the statute did not require.
The panel left open one narrow question: whether a fee charged to an entire class of customers can ever constitute an unlawful surcharge under 28 C.F.R. § 36.301(c) as a matter of law. "We leave that question for another day," the court wrote in a footnote.
Friedman's treating oncologist had agreed to sign the letter supporting the fee waiver not because he believed RF radiation was medically dangerous, but because the smart-meter dispute had "cause[d] [Friedman] stress" and the doctor "hop[ed] that [Friedman] could live his life with cancer without that stress."